[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Proposed Rules]
[Pages 54617-54629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27316]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 225

RIN 0584-AC06


Summer Food Service Program: Program Meal Service During the 
School Year, Paperwork Reduction, and Targeted State Monitoring

AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rulemaking proposes a change to the Summer Food Service 
Program (SFSP) which was mandated by the Healthy Meals for Healthy 
Americans Act of 1994. The change allows SFSP meal service to be 
provided at non-school sites to children who are not in school due to 
unanticipated school closures during the months of October through 
April caused by a natural disaster, building repair, court order, or 
similar occurrence. In addition, this rulemaking proposes discretionary 
changes to simplify the SFSP sponsor application and State monitoring 
requirements in order to eliminate unnecessary paperwork and reduce 
administrative burden for sponsors and State agencies.

DATES: To be assured of consideration, comments must be postmarked on 
or before December 14, 1998.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to Mr. Robert M. Eadie, Chief, Policy and Program Development 
Branch, Child Nutrition Division, Food and Nutrition Service, 
Department of Agriculture, 3101 Park Center Drive, Room 1007, 
Alexandria, Virginia 22302. All written submissions will be available 
for public inspection at this location Monday through Friday, 8:30 
a.m.-5 p.m.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Eadie or Ms. Melissa 
Rothstein at the above address or by telephone at 703-305-2620.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866, and, therefore, has not been 
reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    This action has been reviewed with regard to the requirements of 
the Regulatory Flexibility Act (5 U.S.C. 601-612). The Administrator of 
the Food and Nutrition Service (FNS) has certified that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. The provisions of this rule will streamline 
requirements and reduce administrative burden for State agencies and 
sponsors of the SFSP.

Executive Order 12372

    The SFSP is listed in the Catalog of Federal Domestic Assistance 
under 10.559 and is subject to the provisions of Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials (7 CFR part 3015, subpart V and final rule-related notices 
published at 48 FR 29114, June 24, 1983 and 49 FR 22676, May 31, 1984).

Notice of Information Collection

    In accordance with the Paperwork Reduction Act of 1995, this notice 
invites the general public and other public agencies to comment on 
proposed information collection.
    Written comments must be submitted on or before December 14, 1998.
    Comments concerning the information collection aspects of this 
proposed rule should be sent to the Office of Information and 
Regulatory Affairs, OMB, Room 3208, New Executive Office Building, 
Washington, DC 20503, Attention: Laura Oliven, Desk Officer for the 
Food and Nutrition Service. A copy of these comments may also be sent 
to Mr. Robert Eadie at the address listed in the ADDRESSES section of 
this preamble. Commenters are asked to separate their comments on the 
information collection requirements from their comments on the 
remainder of the proposed rule.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3504), FNS has submitted a request to OMB for a revision of the 
currently approved SFSP information collection requirements. OMB is 
required to make a decision concerning the collection(s) of information 
contained in this proposed rule between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. All comments will be 
summarized and will become a matter of public record.
    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information including the validity of the 
methodology and assumptions used; (c) ways to enhance the quality, 
utility and clarity of the information to be collected; and (d) ways to 
minimize the burden of the collection of information on those who are 
to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    The title, description, and respondent description of the proposed 
information collections are shown below with an estimate of the annual 
reporting and recordkeeping burdens. Included in the estimate is the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    Title: 7 CFR part 225, Summer Food Service Program.
    OMB Number: 0584-0280.
    Expiration Date: December 31, 1999.
    Type of Request: Revision of existing collection.

[[Page 54618]]

    Abstract: The proposed rule, Summer Food Service Program: Program 
Meal Service During the School Year, Paperwork Reduction, and Targeted 
State Monitoring, proposes to implement the provision included in Pub. 
L. 103-448, the Healthy Meals for Healthy Americans Act of 1994, that 
allows SFSP meals to be served ``at non-school sites to children who 
are not in school for a period during the months of October through 
April due to a natural disaster, building repair, court order, or 
similar cause.'' In addition, the rule also proposes to modify current 
SFSP sponsor and site application requirements and to allow State 
agencies to better target review efforts.
    In accordance with the Paperwork Reduction Act of 1995, the 
Department is providing the public with the opportunity to provide 
comments on the information collection requirements of this proposed 
rule as noted below:

----------------------------------------------------------------------------------------------------------------
                                                   Annual Number      Annual        Burden  per    Annual burden
                     Section                      of respondents     frequency       response          hours
----------------------------------------------------------------------------------------------------------------
7 CFR 225.6(b)(4)--State agencies provide
 immediate ``conditional approval'' to sponsors
 in emergency program situations: Proposed......           \1\ 5               1            1                  5
7 CFR 225.6(c)--Requirements for new sponsors,
 new sites, and sponsors and sites which have
 experienced significant operational problems in
 the prior year: Proposed.......................         \2\ 179               1            3.33             596
7 CFR 225.6(c)--Removal of requirements for
 experienced sponsors and sites:
    Existing....................................        \2\ 3309               1            3.33          11,019
    Proposed....................................        \2\ 3576               1            2.33           8,332
7 CFR 225.7--State agencies target reviews of
 sponsors and sites, concentrating on problem
 areas:
    Existing....................................          \1\ 49          \2\ 43            8.0           16,856
    Proposed....................................          \1\ 49          \2\ 30           11.5           16,905
    Existing....................................          \1\ 49         \3\ 104            4             20,384
    Proposed....................................          \1\ 49          \3\ 73            6            21,462
----------------------------------------------------------------------------------------------------------------
\1\ State Agencies.
\2\ Sponsors.
\3\ Sites.

    Total Existing Burden Hours: 48,259.
    Total Proposed Burden Hours: 47,300.
    Total Difference: -959.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is intended to have preemptive 
effect with respect to any State or local laws, regulations or policies 
which conflict with its provisions or which would otherwise impede its 
full implementation. This rule is not intended to have retroactive 
effect unless so specified in the ``Effective Date'' section of the 
preamble of the final rule. Prior to any judicial challenge to the 
provisions of this rule or the application of its provisions, all 
applicable administrative procedures must be exhausted. This includes 
any administrative procedures provided by State or local governments. 
For disputes involving procurements by State agencies and sponsors, 
this includes any administrative appeal procedures to the extent 
required by 7 CFR part 3016. In the SFSP, the administrative procedures 
are set forth under the following regulations: (1) Program sponsors and 
food service management companies must follow State agency hearing 
procedures issued pursuant to 7 CFR 225.13; and (2) disputes involving 
procurement by State agencies and sponsors must follow administrative 
appeal procedures to the extent required by 7 CFR 225.17 and 7 CFR part 
3015.

Unfunded Mandate Reform Act

    Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Pub.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of UMRA, the Food 
and Nutrition Service generally must prepare a written statement, 
including a cost-benefit analysis, for proposed and final rules with 
``Federal mandates'' that may result in expenditures to State, local, 
or tribal governments, in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is needed 
for a rule, section 205 of UMRA generally requires the Food and 
Nutrition Service to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, more cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of UMRA) for State, local, and tribal 
governments or the private sector of $100 million or more in any one 
year. Thus, this rule is not subject to the requirements of sections 
202 and 205 of UMRA.

Background

    The Summer Food Service Program (SFSP) is authorized by section 13 
of the National School Lunch Act (NSLA) (42 U.S.C. 1761). On November 
2, 1994, the President signed into law Pub. L. 103-448, the Healthy 
Meals for Healthy Americans Act of 1994 (the Act). The Act reauthorized 
the SFSP through Fiscal Year 1998 and made a number of changes to the 
Program. Most of these mandated changes are non-discretionary and are 
being addressed in a separate interim rulemaking. However, the Act also 
included a provision that allows SFSP meals to be served ``at non-
school sites to children who are not in school for a period during the 
months of October through April due to a natural disaster, building 
repair, court order, or similar cause.'' Since the wording of this 
change to the statute raises a number of implementation issues which 
may be subject to interpretation, the

[[Page 54619]]

Department is soliciting public comments through this proposed 
rulemaking.
    The SFSP was established by Congress to ensure that children in 
low-income areas could continue to receive nutritious meals during the 
summer that are comparable to those they receive during the school year 
under the National School Lunch and School Breakfast Programs. To this 
end, the SFSP provides free meals to all children at approved SFSP 
sites in areas with significant concentrations of low-income children. 
Current law (section 13(a)(1) of the NSLA) defines such an area as one 
in which one-half or more of the children are from households with 
incomes at or below the eligibility level for free and reduced-price 
school meals (185 percent of the Federal poverty guidelines). In 
addition, Program sites may include homeless feeding sites and camps as 
defined at section 13(a)(3)(c) of the NSLA and SFSP regulations at 7 
CFR 225.2. (The SFSP regulations are located in Title 7, part 225 of 
the Code of Federal Regulations. Hereinafter, all citations of SFSP 
regulations will simply indicate the particular section of the SFSP 
regulation being discussed without repeated reference to Title 7.)
    When the SFSP was created, it was the intent of Congress to provide 
nutritious meals to children during the summer when school is out of 
session. Consequently, section 13(c)(1) of the NSLA limited SFSP 
operation to the months of May through September. In addition, in order 
to accommodate children who attend schools which operate on a year-
round basis, that same section allowed SFSP sponsors to operate food 
service programs for children on school vacation at any time if the 
children attend school on a year-round, or continuous school calendar, 
basis.
    Since the SFSP was established, there have been times (e.g., in the 
case of a school strike) when a single school or an entire school 
system did not open as scheduled at the end of summer. Because the NSLA 
prohibited the SFSP from operating after September 30 unless the school 
was in session on a year-round basis, and because the National School 
Lunch and Breakfast Programs may only operate when school is in 
session, many children in low-income areas were denied the benefit of a 
nutritious meal while the schools were closed. These situations led 
Congress to include in section 114(c) of Pub. L. 103-448 the 
aforementioned provision allowing sponsors to operate the SFSP and 
provide meals to children at eligible non-school sites during times of 
unanticipated school closures.
    In order to implement this provision, the Department must consider 
a number of issues, including: (1) The circumstances that may warrant 
employing this authority; (2) the definition of ``non-school sites'' as 
eligible sites; and (3) the application of existing provisions of law 
when providing emergency SFSP benefits during the school year. These 
issues are discussed in more detail below.
    In addition, in an effort to fulfill the Department's commitment to 
reduce barriers to SFSP participation, the Department has consulted 
with local, State, and Federal administrative personnel and hunger 
advocacy groups to explore ways of reducing and easing the 
administrative burden on State and local program administrators. The 
extensive SFSP sponsor and site application procedures and the 
requirements pertaining to State monitoring of the program have 
repeatedly been targeted as potential areas where paperwork could be 
reduced and administrative efforts better targeted. These issues are 
also discussed in detail in this preamble.
    The Department has requested public comments on this proposed rule 
by December 14, 1998. Based on the number and nature of any public 
comments received, the Department will publish an interim or final 
rulemaking at a later date.

I. Unanticipated School Closures

A. Circumstances Warranting Implementation

    Section 13(c)(1) of the NSLA, as amended by section 114(c) of Pub. 
L. 103-448, allows for a variety of circumstances warranting operation 
of the SFSP during unanticipated school closures. Generally, other than 
those times when schools operate on a continuous school calendar, the 
SFSP begins operation after the end of a school year and concludes 
prior to the start of the new school year. However, the Act's listing 
of ``natural disaster, building repair, court order, or similar cause'' 
suggests a variety of circumstances intended to authorize the service 
of SFSP meals during the months of October through April, including 
circumstances such as: (1) The need to remove asbestos from, or make 
major repairs to, one or more school buildings in order to comply with 
safety regulations or other State or local ordinances; (2) the 
destruction of one or more school buildings due to a natural disaster 
such as a tornado, flood, or hurricane; or (3) a labor-management 
dispute which prevents schools from opening, or which would close 
schools during the school year, pending the outcome of negotiations. 
Additionally, given the inclusion in the law of the phrase ``or similar 
cause,'' the Department recognizes that there may be other instances 
which warrant operation of the SFSP during an unanticipated school 
closure.
    Accordingly, this rule proposes to amend Sec. 225.6(e)(1) to 
specify several situations in which a sponsor may operate during 
unanticipated school closures in the months of October through April. 
In addition, given the numerous possibilities of ``similar causes'' 
that may warrant operation of the SFSP during an unanticipated school 
closure, and in order to maintain a sufficient level of oversight, 
Sec. 225.6(e)(1) would also be amended to clarify that other situations 
which might fall into the category of ``similar cause'' could be 
considered and approved or denied on a case-by-case basis by the State 
agency. In addition, Sec. 225.6(b)(4) would be amended to permit State 
agencies to approve sponsors which do not meet the requirement of a 
year-round service to the community (in Sec. 225.14(c)(5)) to serve as 
sponsors during unanticipated school closures.

B. ``Non-school Sites''

    Section 114(c) of Pub. L. 103-448 further amended section 13(c)(1) 
of the NSLA by specifically stating that only ``non-school'' sites are 
considered eligible sites for SFSP operation during the months of 
October through April. The Department believes that the specific 
reference to ``non-school'' sites was included to ensure that, in the 
event of a labor-management dispute, SFSP meal service could be 
provided without exacerbating the dispute. However, since the law 
requires this in all cases, this rule proposes to amend 
Sec. 225.6(d)(1) to provide that, regardless of the reason for the 
school closure, only those sites not located on the premises of a 
school will be considered eligible sites for the purpose of serving 
SFSP meals during an unanticipated school closure.
    The specific reference to ``non-school sites'' in the law also 
raises questions with regard to whether school food authorities should 
be permitted to act as sponsors during operation of the SFSP under 
these conditions, or whether their sponsorship could create legal 
complications in the case of a strike. Despite this possibility, the 
Department recognizes that in many situations, the school food 
authority is the most capable--and possibly the only willing--sponsor 
available to operate

[[Page 54620]]

the program in an area. Therefore, in the interest of providing meals 
to affected children in the most expeditious and efficient manner, and 
to provide maximum State flexibility in responding to these situations, 
this rule does not alter the current regulations which permit the 
approval for program participation of all entities, including school 
food authorities, which meet the sponsor eligibility requirements 
contained in Sec. 225.14(b) of the current regulations.

C. Applying Existing Provisions of Regulations During Emergency Program 
Participation

    Although it is not possible to foresee all of the circumstances 
which might attend any particular instance of school closure, the 
Department believes it is important to consider how some existing 
provisions of program regulations will be applied during an 
unanticipated school closure.
1. Site Eligibility Documentation
    Section 225.6(c)(2)(ii) of the current regulations requires a 
sponsor to provide documentation supporting the eligibility of each 
program site as serving an ``area in which poor economic conditions 
exist,'' as defined in Sec. 225.2. Clearly, the aforementioned 
provision of Pub. L. 103-448 does not intend to override site 
eligibility documentation requirements. However, as indicated above, 
during situations involving unanticipated school closures, it is 
important to begin meal service as soon as possible so that affected 
children can receive program benefits.
    Accordingly, in an effort to balance these opposing needs during 
unanticipated school closures, this rule proposes to amend 
Secs. 225.6(c)(2)(i)(F) and (c)(3)(i)(B) (as amended by this proposed 
rule and discussed in Part II of this preamble) to consider as eligible 
without new documentation of area eligibility for these limited 
purposes, any site which has participated in the SFSP at any time 
during the current year or prior two calendar years. For example, if a 
sponsor wants to operate the SFSP at a particular site during an 
unanticipated school closure in October 1998, the site would have to 
have been in the SFSP at some time in the years 1996, 1997, or 1998 in 
order to be exempt from the site eligibility documentation requirements 
discussed above. Since a given area's demographics are not likely to 
change drastically within this period, we believe that exempting such 
sites from normal area eligibility documentation requirements is 
appropriate in these emergency situations.
2. Sponsor Applications and Agreements
    The various requirements pertaining to sponsor applications and 
agreements are contained in the current regulations under Secs. 225.6 
and 225.14. These regulations require that each potential sponsor 
submit a written application to the State agency for participation in 
the program. This application must include detailed information 
regarding the proposed meal service, including documentation supporting 
the eligibility of each site as serving an area in which poor economic 
conditions exist, a complete administrative and operating budget, 
several policy statements and program assurances, and other 
information.
    This rule proposes to amend Secs. 225.6(c)(1) and 225.14(a) to 
allow State agencies, at their discretion, to approve sponsors that 
have participated in the program at any time during the current year or 
prior two calendar years without a new application, solely for the 
purpose of sponsoring sites during periods of unexpected school 
closings from October to April. Allowing State agencies to rely on 
applications made within this timeframe will help to expedite operation 
of the emergency program. All sponsors would still be required to enter 
into written agreements with the State agency, in accordance with the 
requirements of Sec. 225.6(e), prior to initiating program operations.
    For those sponsors that have not participated in the SFSP at any 
time during the current year or the prior two calendar years, program 
applications would be required. However, as discussed below, the State 
agency would not be required to conduct pre-approval visits. Conforming 
changes would be made to the application requirements at 
Sec. 225.6(c)(1) and Sec. 225.14(a). Additionally, this rule proposes 
to amend Sec. 225.6(b)(1) to add specific reference to exempt these 
sponsors from the annual June 15 deadline for receipt of sponsor 
applications.
3. Monitoring
    Section 225.7(d)(1) of the current regulations requires each State 
agency to conduct pre-approval visits of certain sponsors and sites, 
including those applicants which did not participate in the program in 
the prior year, and all proposed non-school sites with an expected 
average daily attendance of more than 300 (or more than 100 for private 
nonprofit sponsors) which did not participate in the prior year. 
Similarly, Sec. 225.14(c)(6) of the current regulations requires that a 
sponsor certify that it has visited all program sites in order to be 
eligible to participate in the program. The purpose of these visits is 
to assess the sponsor's or site's potential for successful program 
operations, and to verify the information contained in the program 
application.
    The Department continues to prefer that the State agency conduct 
these visits in advance of a sponsor's approval when the sponsor has 
not recently participated in the SFSP. However, recognizing the time 
constraints that may often accompany unanticipated school closures, 
this rule proposes to amend Sec. 225.7(d)(1)(i) to give State agencies 
discretion in conducting pre-approval visits of sponsors in cases in 
which sponsors are operating the program during unanticipated school 
closures. Of course, in cases in which State agencies feel compelled to 
approve an inexperienced sponsor to administer the SFSP during an 
unanticipated school closure without a pre-approval visit, the 
Department expects State personnel to work in especially close 
partnership with such sponsors to ensure the proper operation of the 
SFSP. This rule does not propose any change to the requirement in 
Sec. 225.14(c)(6) that a sponsor certify that all sites have been 
visited because these visits are critical in helping to ensure that 
sites are capable of operating a safe and accountable meal service in 
accordance with program rules.
    Sections 225.7(a) and 225.15(d) require that State agencies and 
sponsors, respectively, conduct training sessions for sponsor and site 
personnel prior to the beginning of Program operations. Again 
recognizing the time constraints accompanying emergency situations, 
this rule proposes to amend Sec. 225.7(a) and 225.15(d) to permit the 
State agency, at its discretion, to waive these training requirements 
for operation of the Program during unanticipated school closures. As 
with pre-approval visits discussed above, the Department expects State 
agencies to work very closely with inexperienced sponsors which are 
approved to operate the Program in such situations. This assistance 
likely would involve on-site technical assistance and training during 
operation of the Program.

II. Paperwork Reduction

    This rulemaking proposes to substantially reorganize and revise the 
SFSP sponsor and site application requirements which are currently set 
forth at Sec. 225.6(c). These are the minimum standards for sponsor and 
site applications; State agencies administering the SFSP may include

[[Page 54621]]

other provisions in their prototype applications as long as they do not 
establish additional eligibility requirements for SFSP participation. 
Based on formal and informal input received from State Program 
administrators, as well as from sponsor staff and hunger advocacy 
groups, it has become apparent that some of the minimum Federal 
requirements set forth at Sec. 225.6(c) have become unnecessary and/or 
duplicative. In addition, in recent years, several State agencies have 
requested and have received waivers to eliminate duplicative 
application requirements for experienced sponsors. These waivers were 
granted under the authority provided to the Department under section 
12(l) of the NSLA (42 U.S.C. 1760). Therefore, the Department believes 
that it is appropriate to propose simplified minimum application 
standards for sponsors whose staff have had prior experience 
administering the SFSP.
    As currently organized, Sec. 225.6(c)(2)(i) sets forth the general 
requirements for the information which sponsors must provide for all 
sites which they plan to operate; Secs. 225.6(c)(2)(ii)-(v) set forth 
special requirements pertaining to specific types of sites (e.g., 
camps, homeless feeding sites, etc.); and Secs. 225.6(c)(2)(vi)-(x) set 
forth more generic, sponsor-level requirements for information to be 
included in all sponsor applications (e.g., administrative budget, 
staffing and monitoring plan, etc.).
    The most detailed and lengthy of these paragraphs is 
Sec. 225.6(c)(2)(i), which sets forth the minimum requirements for 
``site information sheets.'' Sponsors must annually submit site 
information sheets for each of their sites, regardless of whether the 
site has previously participated in the SFSP, has undergone substantial 
changes in site staff or meal service systems from one year to the 
next, or is providing the same service at the same location year after 
year. It is this paragraph which the Department believes is most in 
need of revision.
    First, this rule proposes to divide the information currently in 
Sec. 225.6(c)(2) into new paragraphs (c)(2) and (c)(3). New paragraph 
(c)(2) would set forth the requirements for ``new'' sponsors and sites 
(i.e., sponsors and sites which did not participate in the SFSP in the 
prior Program year, or, as determined by the State agency, sponsors and 
sites which have had significant staff turnover from the prior year). 
The requirements in new paragraph (c)(2) would also apply to sponsors 
and sites which, in the determination of the State agency, have 
experienced significant operational problems in the prior Program year. 
New paragraph (c)(3) would set forth the simplified requirements for 
``experienced'' sponsors and sites--those which successfully 
participated in the SFSP in the prior Program year. Experienced 
sponsors which add new sites must follow the site application 
requirements in paragraph (c)(2) (for ``new'' sites) only for their new 
sites. Such sponsors would follow the requirements of paragraph (c)(3) 
(for ``experienced'' sponsors and sites) for all other sites, and for 
sponsor information. At the discretion of the State agency, any of the 
requirements set forth for ``new'' sponsors and sites in paragraph 
(c)(2) could be applied to ``experienced'' sponsors and sites as well.
    Accordingly, this rule proposes to amend Sec. 225.6(c) by deleting 
paragraph (c)(2), by replacing it with two new paragraphs, (c)(2) and 
(c)(3), and by redesignating current paragraphs (c)(3) and (c)(4) as 
paragraphs (c)(4) and (c)(5), respectively. This rule also proposes to 
amend Sec. 225.2 by adding definitions of ``new sponsor,'' ``new 
site,'' ``experienced sponsor,'' and ``experienced site,'' as discussed 
in the preceding paragraph. These definitions will help clarify 
application and other requirements for sponsors and sites with varying 
degrees of experience and/or success in operating the Program, and will 
also be used to better target State agency monitoring requirements, as 
discussed in Section III of this preamble, below.

A. General Requirements for Site Information Sheets

    In addition to reorganizing Sec. 225.6(c) as described above, this 
rule proposes to completely revise the text, as well. Described below 
are the changes which the Department proposes to make to current 
Sec. 225.6(c)(2)(i).
    Current Sec. 225.6(c)(2)(i)(A) requires sponsors to describe their 
system for serving meals to children at each site. When this 
requirement was first promulgated, the SFSP was a new food assistance 
program with far fewer management controls written into the authorizing 
statute or the program regulations. The Department therefore believed 
that this requirement would help underscore the importance of a site 
having an organized food service system for efficient program 
operation.
    However, now that the SFSP is an established program, we believe 
that including this information in every site's information sheet 
serves little purpose. The Department continues to recognize the 
importance of this information for new sites, and for those sites that 
have experienced significant operational problems in the prior year. 
Therefore, this requirement will be retained in Sec. 225.6(c)(2)(i)(A) 
for new sponsors and sites, and for sponsors and sites, which, in the 
determination of the State agency, have experienced significant 
operational problems in the prior year. However, recognizing that, once 
established, the system for serving meals to children at each site does 
not change significantly from year to year for most sites, this rule 
proposes to remove this requirement for experienced sponsors and sites.
    Section 225.6(c)(2)(i)(B) of the current regulations requires site 
information sheets to contain the estimated number and types of meals 
to be served and the times of meal service for each site. Such 
information helps both sponsors and State agencies develop their plans 
for monitoring site operations. Since meal service information can, and 
frequently does, change from year to year, we are not proposing a 
change to this requirement. This proposal would move this requirement 
to Secs. 225.6(c)(2)(i)(B) and (c)(3)(i)(A).
    Current Sec. 225.6(c)(2)(i)(C) requires that each site information 
sheet provide information on arrangements, in accordance with State or 
local health standards, for delivery and holding of meals until they 
are served, and for storing and refrigerating any leftovers. The 
Department believes that this information is critical for new sites and 
for sites which have experienced significant operational problems in 
the prior year, in order to emphasize the sponsor's need for proper 
meal planning in accordance with Sec. 225.15(b). However, for 
experienced sites, the logistics of delivering, holding and storing 
meals may not change significantly from year to year. Therefore, we are 
proposing to remove the requirement, for sponsors of experienced sites 
only, that sponsors provide information on arrangements for delivery 
and holding of meals until they are served, and for storing and 
refrigerating any leftovers. This requirement will be in new 
Sec. 225.6(c)(2)(i)(C) for new sponsors and sites, and for sponsors and 
sites which, in the determination of the State agency, have experienced 
significant operational problems in the prior year.
    Sections 225.6(c)(2)(i)(D) and (E) of the current regulations 
require that information be provided about sites regarding arrangements 
for food service during periods of inclement weather, and for access to 
a means of communication for making necessary adjustments in the number 
of meals delivered in accordance with the site's

[[Page 54622]]

average daily attendance, respectively. The Department believes that 
these types of arrangements, once made, typically remain constant from 
year to year. Therefore, we are proposing to remove these requirements 
for experienced sites. We are not proposing a change to these 
requirements for new sponsors and sites, and for sponsors and sites 
which have experienced significant operational problems in the prior 
year. For these sites, the requirements will be in new 
Secs. 225.6(c)(2)(i)(D) and (c)(2)(i)(D), respectively.
    Current Secs. 225.6(c)(2)(i)(F) and (G) require that information be 
provided for each site on the geographic area to be served, and on the 
percentage of children in the area to be served by the site who meet 
the Program's income standards, respectively. The requirement in 
Secs. 225.6(c)(2)(i)(F) and (G) to collect information on the 
geographic area to be served and the percentage of income-eligible 
children is duplicative, as it is already collected under current 
Sec. 225.6(c)(2)(ii) (as redesignated by this proposal, 
Secs. 225.6(c)(2)(vi)-(vii) and (c)(3)(iii)-(iv)). Accordingly, this 
rule proposes to delete the information contained in current 
Secs. 225.6(c)(2)(i)(F) and (G).
    Current Sec. 225.6(c)(2)(i)(H) requires information from each site 
on whether it is rural or non-rural, and whether the site's food 
service will be self-prepared or vended. Realizing that sites tend to 
remain in the same area and that sites, once established, typically 
implement the same type of food service from year to year, the 
Department believes this information is unnecessary for experienced 
sponsors and sites. Therefore, this proposed rule will remove this 
requirement for experienced sponsors and sites only. For new sponsors 
and sites, and for sponsors and sites which have experienced 
significant operational problems in the prior year, the requirement 
will be relocated to Sec. 225.6(c)(2)(i)(F).
    In accordance with Sec. 225.9(d)(7)(iii), meals served to 
participants at rural or self-preparation sites are eligible to receive 
additional administrative reimbursement. Thus, State agencies should 
remind sponsors that a failure to report changes in site status or food 
delivery service could result in over- or under-payments.

B. Site Information Sheet Requirements for Specific Types of Sites

    Current Secs. 225.6(c)(2)(ii)-(v) set forth specific site 
application requirements pertaining to how various types of sites 
(e.g., open sites, camps, homeless feeding sites, and migrant sites) 
document that they meet basic eligibility requirements. The 
requirements, as currently set forth, are incomplete in several cases. 
The Department therefore proposes to revise the information at current 
Secs. 225.6(c)(2)(ii)-(v) and place it into new Secs. 225.6(c)(2) and 
(3).
1. Area Eligible Sites--Open and Enrolled
    Open sites are those at which meals are available to all children 
in the area, and are located in areas in which at least 50 percent of 
the children are from households that would be eligible for free and 
reduced price meals under the School Programs. ``Open'' sites qualify 
for participation in the SFSP on the basis of aggregate socioeconomic 
data, typically obtained from schools or from census data, which 
demonstrates that the area meets the 50 percent criterion described 
above.
    As defined in guidance issued to State agencies on April 23, 1992, 
open enrolled sites exist where enrolled sites are initially open to 
broader community participation, but the sponsor limits attendance for 
reasons of security, safety, or control. The sponsor can document site 
eligibility through the use of area school or census data, as ``open'' 
sites do. Sponsors of ``open enrolled'' sites must make it publicly 
known, however, that the site is open on a first-come first-served 
basis to all children of the community at large, and that the site's 
total enrollment will be limited for reasons of security, safety, or 
control. Examples of these sites may include recreation programs 
sponsored by community organizations, and sites located in public 
housing projects.
    In order to clarify the requirements for each of the types of 
sites, this rule proposes to amend Sec. 225.2 to include definitions of 
``open site'' and ``open enrolled site,'' as described above. This rule 
also proposes to amend the current definition of ``Areas in which poor 
economic conditions exist'' at Sec. 225.2(a) to include explicit 
reference to open and open enrolled sites as eligible on the basis of 
school, census or other appropriate area data.
    Current regulations at Sec. 225.6(c)(2)(ii)(B) should indicate that 
``open'' sites and ``open enrolled'' sites, as defined above, must 
submit documentation of area eligibility every other year. However, 
while this is the case for those sites qualifying based on school data, 
it is not true for sites qualifying on the basis of census data, since 
census data are only collected and published every ten years. 
Nevertheless, the Department believes that establishing a site's 
eligibility every other year when using school data is unnecessary 
since an area's socioeconomic status typically does not change rapidly. 
Therefore, to clarify the requirements for documenting area eligibility 
for ``open'' and ``open enrolled'' sites, and to alleviate unnecessary 
burden for site eligibility documentation, this rule proposes to 
include in new Sec. 225.6(c)(3)(i)(B) the requirement for experienced 
sites that sponsors must obtain new documentation every three years 
when elementary school data are used. When census data are used, 
however, new documentation would be required only when new census data 
are made available, or earlier if the State agency has reason to 
believe that an area's socioeconomic status has changed significantly 
since the last decennial census. It is important to note that this 
proposed requirement is not intended to establish the implementation 
year of this rule as the ``base year'' for site eligibility 
determinations. Rather, it is intended to initiate time period 
requirements that apply to when a site was last determined eligible for 
``open'' or ``open-enrolled'' status. For example, under this proposal, 
a site which last established its eligibility in 1997 would not be 
required to re-establish eligibility until 2000. For new sites, the 
current language in the introductory paragraph of Sec. 225.6(c)(2)(ii) 
would be retained, but moved to new Sec. 225.6(c)(2)(i)(G).
    However, the Department wishes to stress that, in determining the 
eligibility of open sites and open enrolled sites, census data should 
not be used when relevant, current-year information on free and reduced 
price eligibility in neighborhood elementary schools is available. 
School data are far more current than census data, which are collected 
only once every ten years, and should more accurately represent current 
neighborhood economic conditions. There may be certain, limited 
circumstances which warrant the use of census data to establish site 
eligibility, even when current-year school data are available. Examples 
include situations where: (1) The potential site is located in a rural 
area where geographically large school attendance areas may obscure 
localized pockets of poverty which can be identified through the use of 
census data; (2) school data show an area to be close to the 50 percent 
threshold, and the census data may reveal specific portions of the 
school's attendance area which are eligible for the SFSP; and (3) 
bussing has affected the percentage of free and reduced price eligibles 
in neighborhood schools, and the school is

[[Page 54623]]

unable to factor out the students bussed in from other areas and 
provide the sponsor with data on the percentage of free and reduced 
price eligibles in the school's immediate neighborhood. In any of these 
situations, use of census data would be warranted to help a State 
agency more precisely ascertain a neighborhood's current income poverty 
status.
    Closed enrolled sites are those which are only open to enrolled 
children, not to the community at large, and in which at least 50 
percent of the enrolled children at the site are eligible for free or 
reduced price school meals, as determined by approval of applications 
for meals. The provisions of current regulations regarding ``closed 
enrolled'' sites are unclear. In 7 CFR part 225, enrolled sites are 
referred to in Secs. 225.15(e) and 225.15(f)(1) as ``programs not 
eligible under Sec. 225.2 (paragraph (a) of `areas in which poor 
economic conditions exist').'' These sites are not specifically 
mentioned at all in current Sec. 225.6(c)(2)(ii). The language in the 
current regulations could be read to imply that any site except camps 
and homeless feeding sites may submit documentation of eligibility 
every other year. However, this is not true, since the number and 
identity of the children attending a particular closed enrolled site 
will likely vary from year to year, and a closed enrolled site's 
Program eligibility is always predicated on at least 50 percent of 
enrolled children being from free and reduced price households.
    Therefore, this rule proposes to add a definition of ``closed 
enrolled site,'' to revise the definition of ``Areas in which poor 
economic conditions exist'' in Sec. 225.2 by adding specific reference 
to open, open enrolled, and closed enrolled sites, and to clarify the 
requirement in both new Secs. 225.6(c)(2)(i)(H) and (c)(3)(i)(C) that 
site information sheets for closed enrolled sites must include the 
projected number of children enrolled and the projected number of 
children eligible for free and reduced price meals. The actual numbers 
must be monitored carefully by State agency personnel during early-
Program visits in order to ensure that the 50 percent level is actually 
reached.
    National Youth Sports Program (NYSP) sites are a particular type of 
site eligible to participate in the SFSP. Prior to the enactment of 
Pub. L. 104-193, the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, NYSP sites were eligible to participate in 
the SFSP during both the summer months and during the academic year 
(October through April). However, Sec. 706(d) of Pub. L. 104-193 
amended section 13(c) of the NSLA to eliminate academic-year NYSP sites 
from the SFSP. This rule also removes references to academic year NYSP 
sites under Sec. 225.6(e)(1), ``State-Sponsor Agreements.''
    Section 225.6(c)(2)(v) of the current regulations requires that 
site information sheets for NYSP sites include certification from the 
sponsor on items related to streamlining applications for children who 
participate in the NYSP during both the summer months and academic 
year. Since academic-year NYSP sites are no longer eligible to 
participate in the SFSP, this rule removes the certification 
requirements pertaining to academic-year NYSP sites.
    Section 225.6(c)(2)(v) of the current regulations also requires 
sponsors of NYSP sites to certify that all of the children who will 
receive SFSP meals are enrolled participants in the SFSP. Therefore, 
this rule proposes to include this requirement in new 
Secs. 225.6(c)(2)(i)(I) for new sponsors and sites, and for sponsors 
and sites which experienced significant operational problems in the 
prior year. However, the Department believes that requiring experienced 
sponsors and sites to include this certification every year is 
unnecessary.
    Finally, this rule proposes to delete the redundant language at 
Sec. 225.14(d)(1), which requires that sponsors for sites other than 
camps or homeless feeding sites provide documentation of area 
eligibility, since this requirement will be contained in revised 
Secs. 225.6 (c)(2)(i)(G) and (c)(3)(i)(B).
2. Camps
    Current regulations at Sec. 225.6(c)(2)(iii) require camps to 
provide documentation showing the number of children enrolled in each 
session who meet the Program's income standards. In a situation similar 
to the closed enrolled sites discussed above, the children attending a 
camp may change from year to year and from session to session. In 
addition, camps only receive reimbursement for meals served to children 
who are eligible for free and reduced price school meals. Therefore, 
this rule retains the sponsor application information requirements in 
current Sec. 225.6(c)(2)(iii) in new Sections 225.6(c)(2)(i)(J) and 
(c)(3)(i)(D), and clarifies that camps are not required to submit the 
individual free and reduced price applications to the State agency, but 
rather the actual number of enrolled children who meet the Program's 
income standards. Of course, all camps must have the individual free 
and reduced price applications on file.
3. Migrant Sites
    To demonstrate that they serve areas in which poor economic 
conditions exist, Sec. 225.6(c)(2)(ii)(A) of the current regulations 
specifies that sites which serve children of migrant workers may 
provide ``data from an organization determined by the State agency to 
be a migrant organization which supports the eligibility of those 
children as a group.'' In the past, we have interpreted this 
requirement to mean that a State migrant organization must have actual 
statistical data which show that the families served by a specific site 
are income eligible for participation in the SFSP. However, it has 
become increasingly apparent that few State and local migrant 
organizations have such data available.
    Because of the difficulties inherent in documenting the income of 
small groups of migrants, and the discernible poverty of migrant 
workers as a whole, as documented by national studies and corroborated 
by several Federal agencies that work directly with this population 
group, we believe it is more appropriate to use national data to 
support the eligibility of sites which serve children of migrant 
workers. Therefore, as previously addressed in Departmental guidance 
issued on March 12, 1993, and May 27, 1998, this rule proposes to 
remove the migrant site documentation requirements in current 
Sec. 225.6(c)(2)(ii)(A). For new sponsors and sites, and for those that 
have experienced significant operational problems in the prior year, 
this rule proposes to require in new Sec. 225.6(c)(2)(i)(K) that a 
migrant site document its eligibility with certification from a migrant 
organization which attests that the site serves children of migrant 
worker families. If the site also serves non-migrant children, the 
sponsor will also be required to certify that the site predominantly 
serves migrant children. Although different families may be present 
from year to year, the Department believes that migrant sites that 
participate in the SFSP every year continue to serve the children of 
migrant worker families. Therefore, this rule does not require 
experienced sponsors and sites to include this certification.
4. Homeless Feeding Sites
    For homeless feeding sites, current regulations at 
Sec. 225.6(c)(2)(iv) require the submission of information sufficient 
to document that the site is not a residential child care institution, 
and

[[Page 54624]]

that the site's primary purpose is to provide shelter and one or more 
meal services per day to homeless families. Sponsors also are required 
to describe the methods used to ensure that cash payments, food stamps, 
and in-kind services are not received for any SFSP meal served to 
children at these sites. The Department believes that the above 
information continues to be important for new sponsors and sites, and 
for sponsors and sites which have experienced significant operational 
problems in the prior year.
    Current Sec. 225.14(d)(5) also contains the requirement that 
sponsors of homeless feeding sites provide documentation that the site 
is not a residential child care institution, as well as certification 
that such sites employ meal counting methods which ensure that 
reimbursement is claimed only for meals served to children (homeless 
and non-homeless). This rule proposes to relocate the requirement for 
documentation of nonresidential status and certification of meal 
counting methods to new Sec. 225.6(c)(2)(i)(L) for new sponsors and 
sites and for sponsors and sites which have experienced significant 
operational problems in the prior year, and to delete Sec. 225.14(d)(5) 
as duplicative. However, this information is not necessary for 
experienced sponsors and sites since, once established, the status of 
the site (as nonresidential) and meal counting methods, typically do 
not change. Therefore, this proposed rule would remove the requirement 
for experienced sponsors and sites.
    Accordingly, this rule proposes to amend Sec. 225.14(d) by deleting 
paragraph (d)(1) (as discussed under ``Area eligible sites'' above), by 
deleting paragraph (d)(5), and by redesignating paragraphs (d)(2) 
through (d)(4), and (d)(6) through (d)(7) as paragraphs (d)(1) through 
(d)(5), respectively.

C. Other Requirements for Sponsor Applications

    Current Sec. 225.6(c)(2)(vi) requires that sponsor applications 
include information in sufficient detail to enable the State agency to 
determine whether the sponsor meets the criteria for Program 
participation outlined in Sec. 225.14; the extent of Program payments 
needed; and a staffing and monitoring plan. For new sponsors and 
sponsors which, in the determination of the State agency, have 
experienced significant operational problems in the prior year, this 
rule retains in proposed new Sec. 225.6(c)(2)(ii)(A) the requirement in 
the first clause of current Sec. 225.6(c)(2)(vi) that applications 
include information for determining sponsor eligibility. However, such 
information would not be necessary for experienced sponsors (i.e., 
sponsors that have been determined eligible and have successfully 
participated in the Program in the prior year). Consequently, this rule 
proposes to delete the collection of that information for experienced 
sponsors. This rule retains, for all sponsors, in new 
Secs. 225.6(c)(2)(ii)(A) and (c)(3)(ii)(A), the current requirements 
for estimating Program payments, requesting advance or start-up funds, 
if applicable, and submitting the staffing and monitoring plan in the 
application.
    In accordance with Sec. 225.6(c)(2)(vii), a sponsor's application 
must also currently include a complete administrative and operating 
budget for State agency review and approval each year. Unquestionably, 
administrative and operating budgets should be updated each year the 
Program is in operation, not only to ensure that Federal funds are 
properly spent, but also to help sponsors determine whether their 
planned expenditures will be adequately funded under the SFSP's 
``lesser of costs versus rates'' funding formula. Accordingly, this 
rule retains, but relocates the requirements in current 
Sec. 225.6(c)(2)(vii) to new Secs. 225.6(c)(2)(ii)(B) and 
(c)(3)(ii)(B).
    Current Sec. 225.6(c)(2)(viii) requires that a sponsor submit ``[a] 
plan for and a synopsis of its invitation to bid for food service, if 
an invitation to bid is required under Section 225.15(g).'' The wording 
of this regulation is somewhat ambiguous, leaving unclear whether 
sponsors must always summarize their plans for obtaining meals. 
Therefore, to clarify this point, this rule proposes to add in new 
Sec. 225.6(c)(2)(ii)(C) the requirement that new sponsors and sponsors 
which have experienced significant operational problems in the prior 
year, as determined by State agencies, submit a summary of how meals 
will be obtained (e.g., self-prepared at each site, self-prepared and 
transported from a central kitchen, purchased from a school food 
authority, competitively procured from a food service management 
company, or some combination of these or other methods). In addition, 
if an invitation to bid is required under Section 225.15(g), new 
sponsors and sponsors which have experienced significant operational 
problems in the prior year will be required to submit a schedule for 
bid dates, and a copy of their invitation for bid (IFB). Under proposed 
Sec. 225.6(c)(3)(ii)(C), experienced sponsors will be required to 
submit the bid schedule each year, but will only be required to submit 
a summary of their meal service and their IFB if they are changing 
their method of procuring meals or their IFB.
    Section 225.6(c)(2)(ix) of the current regulations requires 
submission by sponsors of a free meal policy statement. Since such a 
statement already is required and further explained in current 
Sec. 225.6(c)(3) (redesignated Sec. 225.6(c)(4) by this rule), the 
Department is proposing to delete current Sec. 225.6(c)(2)(ix) as 
redundant.
    Section 225.6(c)(2)(x) of the current regulations requires that 
sponsors that seek to operate the Program as units of local, municipal, 
county or State government, or as private nonprofit organizations, 
provide certification in their annual applications that they will have 
direct operational control over the Program, as further defined in 
Sec. 225.14(d)(4). Realizing that experienced sponsors typically 
implement the same, continual, service from year to year, it is the 
Department's belief that this information also remains constant. 
Therefore, this rule proposes to delete this requirement for 
experienced sponsors and sites, and to relocate this requirement to new 
Sec. 225.6(c)(2)(ii)(D) for new sponsors.
    Finally, current Sec. 225.6(c)(3), which has been redesignated as 
Sec. 225.6(c)(4) by this proposed rule, requires that all sponsors, 
regardless of type, submit a statement of their policy for serving free 
meals at all sites under their jurisdiction. This Section also 
contains, in paragraph (ii), additional requirements for policy 
statements for camps that charge separately for meals. The requirements 
for all sponsors are contained in the introductory paragraph and in 
paragraph (i). For improved organizational purposes, this rule proposes 
to amend redesignated Sec. 225.6(c)(4) by combining the introductory 
paragraph with paragraph (i) under new Section 225.6(c)(4)(i).

III. State Agency Monitoring Requirements

    As is true of the sponsor and site application requirements 
discussed above, the monitoring provisions contained in the current 
regulations are minimum standards. State agencies and sponsors may 
elect to conduct additional reviews, outside of the prescribed 
requirements, to ensure compliance with Program requirements.
    The current regulations contain various minimum requirements for 
monitoring of SFSP sites by sponsors. For example, a sponsor in the 
SFSP must: (1) Certify prior to submitting its application that all 
proposed sites have been visited (Sec. 225.14(c)(6)); (2) visit each 
site at least once during the first

[[Page 54625]]

week of operation (Sec. 225.15(d)(2)); and (3) formally review food 
service operations at each site at least once during the first four 
weeks of operation, and at reasonable intervals thereafter 
(Sec. 225.15(d)(3)). This proposed rule will not make revisions to the 
monitoring requirements for sponsors because we believe that the 
current requirements are reasonable and necessary for efficient and 
effective operation of the Program.
    Given the critical importance of monitoring as a tool for effective 
Program management, this rule also does not propose to lessen the 
overall effort currently expended by State agencies in their monitoring 
of sponsors. However, the Department believes that current monitoring 
requirements do not afford State agencies sufficient flexibility to 
determine where to focus their monitoring resources. The current State 
agency monitoring requirements and our proposed changes to these 
requirements are discussed in detail below.

A. Pre-Approval Visits

    Section 225.7(d)(1) of the current regulations requires the State 
agency to conduct pre-approval visits of all applicant sponsors which 
did not participate in the SFSP in the prior year, with the exception 
of school food authorities which have been reviewed by the State agency 
under the National School Lunch Program during the preceding 12 months 
and had no significant deficiencies noted. State agencies may conduct 
pre-approval visits of these school food authority sponsors at their 
discretion. State agencies also exercise discretion in conducting pre-
approval visits for all sponsors which had operational problems noted 
in the prior year.
    Current Sec. 225.7(d)(1) further requires each State agency to 
conduct pre-approval visits of all new nonschool sites with an expected 
average daily attendance of 300 children or more, and all new sites 
administered by private nonprofit organization sponsors with an 
expected average daily attendance of 100 children or more.
    Since there is considerable variation among State agencies with 
regard to what constitutes a ``large'' site, the Department believes 
that requiring a State agency to conduct monitoring visits, based on 
the number of attending children, may be ineffective. Furthermore, 
State agencies have first-hand experience and knowledge of sponsors 
with problem-prone sites. Therefore, in order to provide maximum State 
flexibility while ensuring sufficient program oversight, we are 
retaining the current requirements in Secs. 225.7(d)(1)(i) and (ii) for 
State agency pre-approval visits of sponsors (except for the change 
proposed in Section I (C)(3) of the preamble above), but are proposing 
to amend Sec. 225.7(d)(1)(iii) and to remove Sec. 225.7(d)(1)(iv) to 
make pre-approval visits of sites by State agencies discretionary.

B. Sponsor and Site Reviews

    Section 225.7(d)(2)(i) of the current regulations requires that, 
within the first four weeks of operation, State agencies conduct a 
review of sponsor operations, and review an average of 15 percent of 
sponsors' sites (with a minimum of one site reviewed per sponsor) for: 
(1) New private nonprofit organizations which administer only urban 
sites and have three or more urban sites; (2) any new sponsor which has 
10 or more sites; and (3) any other private nonprofit organization, and 
any other sponsor with 10 or more sites, which the State agency 
determines need early reviews. Section 225.7(d)(2)(iii) requires State 
agencies to conduct reviews, at any time during the Program year, of an 
average of at least 15 percent of the sites of all remaining sponsors 
with 10 or more sites; and, for 70 percent of remaining sponsors with 
fewer than 10 sites, an average of at least 10 percent of their sites. 
Finally, Sec. 225.7(d)(2)(ii) requires that State agencies review all 
academic-year NYSP sponsors, and at least one of their sites, during 
the period October through April. This rulemaking proposes a number of 
changes to these existing requirements.
    First, this rule proposes to eliminate the special requirements in 
Sec. 225.7(d)(2)(i) for State agency review of private nonprofit 
organizations described above. The Department believes that the 
additional level of monitoring required by Congress for private 
nonprofit organizations under section 13(p)(1) of the NSLA is 
satisfactorily provided under the current Federal review system. In 
addition, although Pub. L. 103-448 maintained this special Federal 
monitoring of private nonprofit organizations, it made a number of 
other changes to the rules governing their program participation which 
demonstrate Congressional intent to now recognize that, as a result of 
additional Federal monitoring and training materials, these 
organizations are more capable of properly administering the SFSP. (For 
example, section 114(b) of Pub.L. 103-448 amended section 13(a)(7) of 
the NSLA to eliminate the one year waiting period formerly imposed on 
private, nonprofit organizations in some areas for participation in the 
SFSP). Therefore, this rule proposes to eliminate the current 
requirements for State-level review of new urban private nonprofit 
organizations with three or more sites during the first four weeks of 
program operation, as set forth at current Sec. 225.7(d)(2)(i)(A).
    In addition, as indicated earlier in this preamble, Pub. L. 104-193 
removed the participation of academic-year NYSP sites from SFSP. 
Therefore, this proposed rule would remove the review requirement for 
these sponsors in Sec. 225.7(d)(2)(ii).
    Also, in order to streamline and simplify the current general 
monitoring requirements and provide increased flexibility to State 
agencies, this rule proposes to revise the minimum State agency review 
requirements for sponsors and their sites. This proposal would require 
the State agency to review every new sponsor, as defined in Sec. 225.2 
of this proposed rule, at least once during its first year of 
operation. State agencies would also be required under this proposed 
rule to review each year every sponsor with 20 or more sites, and every 
sponsor which, in the determination of the State agency, experienced 
significant operational problems in the prior year. In place of the 
current requirement that reviews of certain sponsors take place in the 
first four weeks of operation, the timing of reviews of these sponsors 
would be at the discretion of the State agency, with the stipulation 
that sponsors with large sites, larger numbers of sites, or significant 
operational problems in the prior year, be reviewed earlier. Finally, 
all sponsors would be required to be reviewed by the State agency at 
least once every three years.
    The Department believes that these new proposed requirements better 
target State agency reviews by restricting required reviews in a given 
year to new and large sponsors, which monitoring data indicate are the 
most problem-prone sponsors in the SFSP, and those which experienced 
significant operational problems in the prior year. They also provide 
an updated and more realistic definition of ``large'' sponsors (those 
administering more than 20 sites), and permit State agencies to review 
experienced sponsors with fewer than 20 sites as infrequently as once 
every three years, at the State agency's discretion. This rule should 
not result in a reduction in a State agency's monitoring efforts. 
Rather, it is intended that the State agency's monitoring resources 
would become more targeted to reviews of new sponsors and sponsors of 
over 20 sites, and other sponsors the State agency identifies, and that 
a correspondingly greater amount of

[[Page 54626]]

State agency time and effort could be spent in conducting such reviews.
    In addition, this rule proposes to amend Sec. 225.7(d)(2) by adding 
language which recommends that State agencies prioritize other review 
efforts to target all other sponsors which increase their total number 
of sites by five or more from one year to the next, or whose 
participation increases substantially from one year to the next. Such 
targeting is important since smaller, experienced sponsors (those with 
20 or fewer sites) which add a number of new sites or additional 
children at the same time may experience difficulties administering a 
Program which is significantly larger than the prior year's Program.
    For reviews of sites, this rule proposes to amend Sec. 225.7(d)(2) 
by requiring that, as a part of each sponsor review, the State agency 
also conduct annual reviews of at least 10 percent of the sponsor's 
sites or one site, whichever number is greater. This revision will 
further simplify the current requirements, while providing a reasonable 
sample size and a guarantee that at least one site for each sponsor 
will be reviewed.
    The Department expects that State agencies will use this increased 
flexibility to properly target their reviews to ensure program 
accountability and integrity. Each State's level of resources devoted 
to monitoring should remain the same under these revised regulations. 
Improved targeting of the resources will ensure better program 
oversight with the same level of resource commitment.
    Accordingly, this rule proposes to completely revise the review 
requirements in current Secs. 225.7(d)(2)(i)-(iii) and to replace them 
with the new requirements discussed above.

List of Subjects in 7 CFR Part 225

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

    Accordingly, 7 CFR Part 225 is proposed to be amended as follows:

PART 225--SUMMER FOOD SERVICE PROGRAM

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

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

    2. In Sec. 225.2:
    a. New definitions of Closed enrolled site, Experienced site, 
Experienced sponsor, New site, New sponsor, Open enrolled site, and 
Open site are added in alphabetical order; and
    b. The definition of Areas in which poor economic conditions exist 
is revised.
    The additions and revision read as follows:


Sec. 225.2  Definitions.

* * * * *
    Areas in which poor economic conditions exist means:
    (a) The local areas from which an open or open enrolled site draws 
its attendance in which at least 50 percent of the children are 
eligible for free or reduced price school meals under the National 
School Lunch Program and the School Breakfast Program, as determined.
    (1) By information provided from departments of welfare, education, 
zoning commissions, census tracts, and organizations determined by the 
State agency to be migrant organizations;
    (2) By the number of free and reduced price lunches or breakfasts 
served to children attending public and nonprofit private schools 
located in the areas of Program sites; or
    (3) From other appropriate sources; or
    (b) A closed enrolled site.
* * * * *
    Closed enrolled site means a site which is open only to enrolled 
children, as opposed to the community at large, and in which at least 
50 percent of the enrolled children at the site are eligible for free 
or reduced price school meals under the National School Lunch Program 
and the School Breakfast Program, as determined by approval of 
applications in accordance with Sec. 225.15(f) of this part.
* * * * *
    Experienced site means a site which, as determined by the State 
agency, has successfully participated in the Program in the prior year.
    Experienced sponsor means a sponsor which, as determined by the 
State agency, has successfully participated in the Program in the prior 
year.
* * * * *
    New site means a site which did not participate in the Program in 
the prior year, or, as determined by the State agency, a site which has 
experienced significant staff turnover from the prior year.
    New sponsor means a sponsor which did not participate in the 
Program in the prior year, or, as determined by the State agency, a 
sponsor which has experienced significant staff turnover from the prior 
year.
* * * * *
    Open enrolled site means an enrolled site which is initially open 
to broad community participation, but at which the sponsor limits 
attendance for reasons of security, safety, or control. Site 
eligibility for an open enrolled site shall be documented in accordance 
with paragraph (a) of the definition of Areas in which poor economic 
conditions exist.
    Open site means a site at which meals are made available to all 
children in the area and which is located in an area in which at least 
50 percent of the children are from households that would be eligible 
for free or reduced price school meals under the National School Lunch 
Program and the School Breakfast Program, as determined in accordance 
with paragraph (a) of the definition of Areas in which poor economic 
conditions exist. 
* * * * *
    3. In Sec. 225.6:
    a. Paragraph (b)(1) is amended by adding a new sentence at the end;
    b. Paragraph (b)(4) is revised;
    c. Paragraph (c)(1) is amended by adding a new sentence after the 
first sentence;
    d. Paragraph (c)(2) is revised;
    e. Paragraphs (c)(3) and (c)(4) are redesignated as paragraphs 
(c)(4) and (c)(5), respectively, and a new paragraph (c)(3) is added;
    f. Newly redesignated paragraph (c)(4) is amended by removing 
paragraph (c)(4) introductory text and adding it as the first sentence 
in newly redesignated paragraph (c)(4)(i); the paragraph is further 
amended by removing the reference to ``(c)(4)'' in paragraph 
(c)(4)(ii)(D) and adding in its place a reference to ``(c)(5)'.
    g. Paragraph (d)(1)(ii) is amended by removing the word ``and'' at 
the end of the paragraph;
    h. Paragraph (d)(1)(iii) is amended by removing the period at the 
end of the paragraph and adding in its place the word ``; and'';
    i. A new paragraph (d)(1)(iv) is added;
    j. Paragraph (e)(1) is revised.
    The additions and revisions read as follows:


Sec. 225.6  State agency responsibilities.

* * * * *
    (b) * * *
    (1) * * * Sponsors applying for participation in the Program due to 
an unanticipated school closure during the period from October through 
April shall be exempt from the application submission deadline.
* * * * *
    (4) The State agency shall determine the eligibility of applicant 
sponsors

[[Page 54627]]

applying for participation in the Program in accordance with the 
applicant sponsor eligibility criteria outlined in Sec. 225.14. 
However, State agencies may approve the application of an otherwise 
eligible applicant sponsor which does not provide a year-round service 
to the community which it proposes to serve under the Program only if 
it meets one or more of the following criteria: it is a residential 
camp; it proposes to provide a food service for the children of migrant 
workers; a failure to do so would deny the Program to an area in which 
poor economic conditions exist; a significant number of needy children 
will not otherwise have reasonable access to the Program; or it 
proposes to serve an area affected by an unanticipated school closure 
during the period from October through April. In addition, the State 
agency may approve such a sponsor for participation without a prior 
application if the sponsor participated in the program at any time 
during the current year or prior two calendar years.
* * * * *
    (c) * * *
    (1) * * * Sponsors proposing to serve an area affected by an 
unanticipated school closure during the period from October through 
April may be exempt, at the discretion of the State agency, from 
submitting a new application if they have participated in the program 
at any time during the current year or prior two calendar years. * * *
    (2) Requirements for new sponsors, new sites, and, as determined by 
the State agency, sponsors and sites which have experienced significant 
operational problems in the prior year. (i) At a minimum, the 
application submitted by new sponsors and by sponsors which in the 
determination of the State agency have experienced significant 
operational problems in the prior year shall include a site information 
sheet, as developed by the State agency, for each site where a food 
service operation is proposed. The site information sheet for new 
sponsors and new sites, and for sponsors and sites which in the 
determination of the State agency have experienced significant 
operational problems in the current year or prior two calendar years, 
shall demonstrate or describe the following:
    (A) An organized and supervised system for serving meals to 
attending children;
    (B) The estimated number and types of meals to be served and the 
times of service;
    (C) Arrangements, within standards prescribed by the State or local 
health authorities, for delivery and holding of meals until time of 
service, and arrangements for storing and refrigerating any leftover 
meals until the next day;
    (D) Arrangements for food service during periods of inclement 
weather;
    (E) Access to a means of communication for making necessary 
adjustments in the number of meals delivered in accordance with the 
number of children attending daily at each site;
    (F) Whether the site is rural, as defined in Sec. 225.2, or non-
rural, and whether the site's food service will be self-prepared or 
vended;
    (G) For open and open enrolled sites, documentation supporting the 
eligibility of each site as serving an area in which poor economic 
conditions exist. For sites that a sponsor proposes to serve during an 
unanticipated school closure during the period from October through 
April, any site which has participated in the Program at any time 
during the current year or prior two ccalendar years shall be 
considered eligible without new documentation of serving an area in 
which poor economic conditions exist;
    (H) For closed enrolled sites, the projected number of children 
enrolled and the projected number of children eligible for free and 
reduced price meals for each of these sites;
    (I) For NYSP sites, certification from the sponsor that all of the 
children who will receive Program meals are enrolled participants in 
the NYSP;
    (J) For camps, the number of children enrolled in each session who 
meet the Program's income standards. If such information is not 
available at the time of application, it shall be submitted as soon as 
possible thereafter and in no case later than the filing of the camp's 
claim for reimbursement for each session;
    (K) For those sites at which applicants will serve children of 
migrant workers, certification from a migrant organization which 
attests that the site serves children of migrant worker families. If 
the site also serves non-migrant children, the sponsor shall certify 
that the site predominantly serves migrant children; and
    (L) For homeless feeding sites, information sufficient to 
demonstrate that the site is not a residential child care institution 
as defined in paragraph (c) of the definition of school in Sec. 210.2, 
of the National School Lunch Program regulations, and that the site's 
primary purpose is to provide shelter and one or more meal services per 
day to homeless families. If cash payments, food stamps, or any in-kind 
service are required of any meal recipient at such site, sponsors shall 
describe the method(s) used to ensure that no such payments or services 
are received for any Program meal served to children. In addition, 
sponsors shall certify that such sites employ meal counting methods 
which ensure that reimbursement is claimed only for meals served to 
homeless and non-homeless children.
    (ii) New sponsors and sponsors which in the determination of the 
State agency have experienced significant operational problems in the 
prior year shall also include in their applications:
    (A) Information in sufficient detail to enable the State agency to 
determine whether the applicant meets the criteria for participation in 
the Program as set forth in Sec. 225.14; the extent of Program payments 
needed, including a request for advance payments and start-up payments, 
if applicable; and a staffing and monitoring plan;
    (B) A complete administrative and operating budget for State agency 
review and approval. The administrative budget shall contain the 
projected administrative expenses which a sponsor expects to incur 
during the operation of the Program, and shall include information in 
sufficient detail to enable the State agency to assess the sponsor's 
ability to operate the Program within its estimated reimbursement. A 
sponsor's approved administrative budget shall be subject to subsequent 
review by the State agency for adjustments in projected administrative 
costs;
    (C) A summary of how meals will be obtained (e.g., self-prepared at 
each site, self-prepared and distributed from a central kitchen, 
purchased from a school food authority, competitively procured from a 
food service management company, etc.). If an invitation for bid is 
required under Sec. 225.15(g), sponsors shall also submit a schedule 
for bid dates, and a copy of their invitation for bid; and
    (D) For each applicant which seeks approval under Sec. 225.14(b)(3) 
as a unit of local, municipal, county or State government, or under 
Sec. 225.14(b)(5) as a private nonprofit organization, certification 
that it will directly operate the Program in accordance with 
Sec. 225.14(d)(3).
    (3) Requirements for experienced sponsors and experienced sites. 
(i) At a minimum, the application submitted by experienced sponsors 
shall include a site information sheet, as developed by the State 
agency, for each site where a food service operation is proposed. The 
site information sheet for experienced sponsors and experienced sites 
shall demonstrate or describe the information below. The State agency 
also may

[[Page 54628]]

require experienced sponsors and experienced sites to provide any of 
the information required in paragraph (c)(2) of this section.
    (A) The estimated number and types of meals to be served and the 
times of service;
    (B) For open and open enrolled sites, new documentation supporting 
the eligibility of each site as serving an area in which poor economic 
conditions exist shall be submitted every other year every three years 
when school data are used, and, when census data are used, when new 
census data are available or earlier if the State agency believes that 
an area's socioeconomic status has changed significantly since the last 
census. For sites that a sponsor proposes to serve during an 
unanticipated school closure during the period from October through 
April, any site which has participated in the Program in any time 
during the current year or prior two calendar years shall be considered 
eligible without new documentation of serving an area in which poor 
economic conditions exist;
    (C) For closed enrolled sites, the projected number of children 
enrolled and the projected number of children eligible for free and 
reduced price meals for each of these sites;
    (D) For camps, the number of children enrolled in each session who 
meet the Program's income standards. If such information is not 
available at the time of application, it shall be submitted as soon as 
possible thereafter and in no case later than the filing of the camp's 
claim for reimbursement for each session;
    (ii) Experienced sponsors shall also include on their applications:
    (A) The extent of Program payments needed, including a request for 
advance payments and start-up payments, if applicable, and a staffing 
and monitoring plan;
    (B) A complete administrative and operating budget for State agency 
review and approval. The administrative budget shall contain the 
projected administrative expenses which a sponsor expects to incur 
during the operation of the Program, and shall include information in 
sufficient detail to enable the State agency to assess the sponsor's 
ability to operate the Program within its estimated reimbursement. A 
sponsor's approved administrative budget shall be subject to subsequent 
review by the State agency for adjustments in projected administrative 
costs;
    (C) If an invitation for bid is required under Sec. 225.15(g), a 
schedule for bid dates. Sponsors shall also submit a copy of the 
invitation for bid if it is changed from the previous year. If the 
method of procuring meals is changed, sponsors shall submit a summary 
of how meals will be obtained (e.g., self-prepared at each site, self-
prepared and distributed from a central kitchen, purchased from a 
school food authority, competitively procured from a food service 
management company, etc.); and
* * * * *
    (d) * * *
    (1) * * *
    (iv) If it is a site proposed to operate during an unanticipated 
school closure, it is a non-school site.
* * * * *
    (e) * * *
    (1) Operate a nonprofit food service during any period from May 
through September for children on school vacation; or, at any time of 
the year, in the case of sponsors administering the Program under a 
continuous school calendar system; or, during the period from October 
through April, if it serves an area affected by an unanticipated school 
closure due to a natural disaster, major building repairs, court orders 
relating to school safety or other issues, labor-management disputes, 
or, when approved by the State agency, a similar cause''.
* * * * *
    4. In Sec. 225.7:
    a. Paragraph (a) is amended by adding a new sentence at the end;
    b. Paragraph (d)(1)(i) is amended by removing the semicolon at the 
end of the paragraph, by adding a period in its place, and by adding a 
new sentence at the end of the paragraph;
    c. Paragraph (d)(1)(iii) is revised;
    d. Paragraph (d)(1)(iv) is removed; and
    e. Paragraph (d)(2) is revised.
    The additions and revisions read as follows:


Sec. 225.7  Program monitoring and assistance.

    (a) * * * State agencies are not required to conduct this training 
for sponsors operating the Program during unanticipated school closures 
during the period from October through April.
* * * * *
    (d) * * *
    (1) * * *
    (i) * * * In addition, pre-approval visits of sponsors proposing to 
operate the Program during unanticipated school closures during the 
period from October through April may be conducted at the discretion of 
the State agency;
* * * * *
    (iii) Pre-approval visits of sites may be conducted at the 
discretion of the State agency.
    (2) Sponsor and site reviews. The State agency shall review 
sponsors and sites to ensure compliance with Program regulations, the 
Department's non-discrimination regulations (7 CFR part 15) and any 
other applicable instructions issued by the Department. In determining 
which sponsors and sites to review under this paragraph, the State 
agency shall, at a minimum, consider the sponsors' and sites' previous 
participation in the Program, their current and previous Program 
performance, and the results of any previous reviews of the sponsor and 
sites. Reviews shall be conducted as follows:
    (i) State agencies shall conduct a review of every new sponsor at 
least once during the first year of operation. State agencies shall 
also conduct a review each year of every sponsor operating 20 or more 
sites, and every sponsor which, in the determination of the State 
agency, experienced significant operational problems in the prior year. 
The timing of these reviews is at the discretion of the State agency, 
except that reviews of sponsors with large sites, a larger number of 
sites, or significant operational problems in the prior year shall be 
conducted earlier than reviews of other sponsors.
    (ii) State agencies shall conduct a review of every Program sponsor 
at least once every 3 years.
    (iii) For all other reviews of sponsors, State agencies should 
focus review efforts on those sponsors which increase their total 
number of sites by 5 or more, or whose participation increases 
substantially, from one year to the next, as determined by the State 
agency.
    (iv) As part of each sponsor review, State agencies shall conduct 
reviews of at least 10 percent of each sponsor's sites or one site, 
whichever number is greater.
* * * * *
    5. In Sec. 225.14:
    a. Paragraph (a) is amended by adding a new sentence at the end;
    b. Paragraphs (d)(1) and (d)(5) are removed; and
    c. Paragraphs (d)(2) through (d)(4), and (d)(6) through (d)(7) are 
redesignated as paragraphs (d)(1) through (d)(5), respectively.
    The addition reads as follows:


Sec. 225.14  Requirements for sponsor participation.

    (a) * * * Sponsors proposing to operate a site during an 
unanticipated school closure during the period from October through 
April may be exempt, at the discretion of the State agency, from 
submitting a new application if they have participated in the program 
at

[[Page 54629]]

any time during the current year or prior two calendar years.
* * * * *
    6. In Sec. 225.15, paragraph (d)(1) is amended by adding a new 
sentence after the first sentence to read as follows:


Sec. 225.15  Management responsibilities of sponsors.

* * * * *
    (d) * * *
    (1) * * * The State agency may waive these training requirements 
for operation of the Program during unanticipated school closures 
during the period from October through April. * * *
* * * * *
    Dated: October 1, 1998.
Samuel Chambers, Jr.,
Acting Administrator.
[FR Doc. 98-27316 Filed 10-9-98; 8:45 am]
BILLING CODE 3410-30-P