[Federal Register Volume 73, Number 60 (Thursday, March 27, 2008)]
[Proposed Rules]
[Pages 16213-16218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6235]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 73, No. 60 / Thursday, March 27, 2008 / 
Proposed Rules  

[[Page 16213]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 226

[FNS-2007-0022]
RIN 0584-AD15


Child and Adult Care Food Program: At-Risk Afterschool Meals in 
Eligible States

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

ACTION: Proposed rule.

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

SUMMARY: This rule proposes to amend the Child and Adult Care Food 
Program (CACFP) regulations to implement provisions from the 
Agriculture Risk Protection Act of 2000, the Agriculture, Rural 
Development, Food and Drug Administration, and Related Agencies 
Appropriations Act of 2002, and the Consolidated Appropriations Act of 
2008, that authorize reimbursement to eligible States for a meal 
(normally a supper) served by at-risk afterschool care programs. The 
eligible States are Delaware, Illinois, Michigan, Missouri, New York, 
Oregon, Pennsylvania, and West Virginia. The intent of this proposed 
rule is to conform CACFP regulations to statutory amendments that 
provide an additional meal for at-risk children through age 18 who are 
participating in afterschool programs in the eligible States. The Food 
and Nutrition Service (FNS) implemented the statutory mandates through 
written policy guidance upon enactment of the statutory provisions.

DATES: To be assured of consideration, written comments must be 
received or postmarked on or before May 27, 2008.

ADDRESSES: FNS invites interested persons to submit comments on this 
proposed rule. Comments may be submitted by any of the following 
methods:
     Mail: Send comments to Robert M. Eadie, Chief, Policy and 
Program Development Branch, Child Nutrition Division, Room 640, Food 
and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, 
Virginia 22302.
     Fax: Submit comments by facsimile transmission to: (703) 
305-2879. Please address your comments to Mr. Eadie and identify your 
comments as ``CACFP: At-Risk Afterschool Meals''.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Comments submitted in response to this rule will be included in the 
record and will be available to the public. Please be advised that the 
substance of the comments and the identity of the individuals or 
entities submitting the comments will be subject to public disclosure. 
FNS will make the comments publicly available on the Internet via 
http://www.regulations.gov.
    All written submissions will be available for public inspection at 
the address above during regular business hours (8:30 a.m. to 5:30 
p.m.) Monday through Friday, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Julie Brewer, Policy and Program 
Development Branch, Child Nutrition Division, Food and Nutrition 
Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302, phone 
(703) 305-2590.

SUPPLEMENTARY INFORMATION: 

I. Background

1. What are at-risk afterschool meals?

    Afterschool meals in the CACFP are served to at-risk children 
participating in eligible afterschool care programs in selected States 
as authorized by law. At-risk afterschool meals were authorized by 
section 243(i) of the Agriculture Risk Protection Act of 2000 (Pub. L. 
106-224), which amended section 17(r) of the Richard B. Russell 
National School Lunch Act (42 U.S.C. 1766(r)) (NSLA).
    This provision followed an earlier authorization for afterschool 
snack reimbursements through the CACFP by the William F. Goodling Child 
Nutrition Reauthorization Act of 1998 (Pub. L. 105-336). Public Law 
105-336 expanded the availability of snacks to children ages 13 through 
18 in the CACFP through at-risk afterschool care centers that are 
located in the attendance area of a school where 50 percent or more of 
the enrolled children are certified as eligible to receive free or 
reduced price school meals. Public Law 105-336 also provided for the 
nationwide availability of snacks in the National School Lunch Program 
(NSLP). A proposed rule to implement the statutory provisions for 
afterschool snacks in the NSLP and CACFP was published on October 11, 
2000 (65 FR 60502). The proposal had a 90-day comment period; 33 
comment letters were received. A final rule, Afterschool Snacks in the 
Child and Adult Care Food Program, was published on July 31, 2007 (72 
FR 41591). A final rule on serving afterschool snacks in the NSLP is 
expected to be published in 2008.
    As stipulated by law, at-risk meals and snacks are available to 
children through age 18 (or any age if disabled) who are participating 
in an afterschool care program under the CACFP. The afterschool care 
program must be located in the geographical area of a school in which 
at least 50 percent of the children who are enrolled are certified 
eligible for free or reduced price meals. Although at-risk afterschool 
snacks are available in all States, at-risk afterschool meals are only 
available in States authorized by section 17(r)(5) of the NSLA--
currently, Delaware, Illinois, Michigan, Missouri, New York, Oregon, 
Pennsylvania, and West Virginia. To be eligible, afterschool care 
programs must be organized primarily to provide care to at-risk school 
children after school, or on weekends, holidays, or school vacations 
and must provide educational or enrichment activities. At-risk meals 
and snacks must be served free of charge to the participants and are 
reimbursed at the applicable free rates for meals and snacks.

2. How were the States selected for at-risk afterschool meals?

    Initially, only six States were authorized to be reimbursed for 
meals served in at-risk afterschool programs. Four of the six States 
were named in the law (Delaware, Michigan, Missouri, and Pennsylvania); 
two remaining States were to be selected by the Secretary based upon 
competitive applications. As described in the following paragraph, the 
Department selected New York and Oregon through the competitive 
application process. The seventh State, Illinois, was added by section 
771(3) of the Agriculture, Rural Development, Food and Drug 
Administration, and Related Agencies

[[Page 16214]]

Appropriations Act, 2002 (Pub. L. 107-76, 115 Stat. 745, November 28, 
2001), and the eighth State, West Virginia was added by section 744, 
division A of the Consolidated Appropriations Act, 2008 (Pub. L. 110-
161, December 26, 2007). Both laws amended section 17(r)(5) of the NSLA 
(42 U.S.C.1766(r)).

3. How did USDA select the other two States?

    Acting on the statutory requirement to select two States 
competitively, FNS distributed applications to all CACFP State agencies 
in August 2000. Eleven State agencies submitted applications by the 
October 2000 deadline. FNS rated the submissions using the following 
criteria: demonstration of need; State support of afterschool care 
programs; and status of at-risk afterschool care programs in CACFP.
    The applicants were notified in December 2000 of the Department's 
selections.

4. When were these States authorized to begin at-risk afterschool meal 
operations?

    The four States initially named in the statute, Delaware, Michigan, 
Missouri, and Pennsylvania, were eligible to reimburse at-risk 
afterschool care centers for meals beginning on June 20, 2000. The two 
additional States selected by USDA, New York and Oregon, were eligible 
to receive reimbursement for afterschool meals in January 2001. The 
seventh State, Illinois, was notified in November 2001 of its 
eligibility. The eighth State, West Virginia, was notified in December 
2007 of its eligibility.

5. How did USDA help the States implement the at-risk afterschool meal 
provision?

    FNS convened a meeting of the original six at-risk ``supper'' 
States (Delaware, Michigan, Missouri, New York, Oregon, and 
Pennsylvania) on April 4, 2001, at FNS headquarters' offices in 
Alexandria, Virginia. The meeting focused on providing technical 
assistance and exchanging implementation strategies for at-risk 
suppers. The exchange of information revealed wide variations in the 
implementation of the at-risk supper component by the eligible State 
agencies. For example, strict licensing requirements in one State 
prevented aging public school buildings from being used as afterschool 
care centers while other States had no licensing requirements for 
afterschool care centers. Some jurisdictions even lacked health or 
safety requirements for afterschool programs.
    In 2002 and 2003, FNS continued to provide technical assistance 
through conference calls with administrators from the eligible at-risk 
afterschool ``supper'' States.
    Comments and suggestions made by the participants of the April 2001 
meeting and subsequent conference calls in 2002 and 2003 provided FNS 
with valuable insight into operational issues that contributed to the 
development of policy in the at-risk afterschool care component of the 
Program as reflected in policy and guidance issued by FNS and in the 
development of this proposed rule.

6. Why does the proposed rule use the term ``at-risk meals'' instead of 
``at-risk suppers''?

    To emphasize the eligibility for reimbursement of any one meal 
served to children attending at-risk afterschool care centers in 
eligible States when they are not in school, we have dropped the use of 
the term ``at-risk afterschool suppers'' in favor of the more accurate 
term, ``at-risk afterschool meals.''
    The issue was raised whether at-risk afterschool centers in the 
eligible States are limited to suppers or whether other meals may be 
served and reimbursed at the free rate under the at-risk provisions. It 
was pointed out that the statutory language specifies the provision of 
at-risk meals, not suppers, and that use of the term ``at-risk 
suppers'' may inadvertently restrict eligible at-risk programs that 
operate on weekends and school holidays to seek reimbursement for or 
serve only the supper meal. However, the at-risk meal reimbursement is 
not limited exclusively to suppers when an eligible at-risk afterschool 
center provides care when school is closed, such as on the weekends or 
vacations during the regular school year.

7. What is USDA's approach to implementing at-risk afterschool meals in 
the CACFP regulations?

    We propose to track the provisions for at-risk afterschool meals as 
closely as possible to the regulatory requirements already in place for 
at-risk afterschool snacks; the CACFP at-risk afterschool snack 
provisions were published in a final rule on July 31, 2007 (72 FR 
41591). This is consistent with the treatment of at-risk meals in the 
statute; both at-risk snacks and meals are authorized under the same 
at-risk provisions in the NSLA at section 17(r) (42 U.S.C. 1766(r)). In 
addition, most of the provisions contained in this rule would propose 
the continuation of requirements that FNS has previously provided to 
the eligible States on the implementation of at-risk afterschool meals.

8. What proposed provisions are similar to at-risk afterschool snack 
provisions?

    This rule proposes to extend the at-risk snack provisions located 
in 7 CFR 226.17a and in other sections of the CACFP regulations to 
include at-risk meals. These requirements include payments to at-risk 
afterschool care centers, eligible organizations and afterschool care 
programs, application procedures, participant eligibility for at-risk 
meals, licensing requirements, State agency approval, data requirements 
for determining area eligibility, reporting and recordkeeping 
requirements, and monitoring. The following is a table that provides a 
summary of the regulatory provisions that we propose to extend to at-
risk afterschool meals in the eligible States.

  At-Risk Afterschool Care Provisions To Include Afterschool Meals and
                                 Snacks
------------------------------------------------------------------------
          Provision                           Description
------------------------------------------------------------------------
Eligible organizations 7 CFR   For snacks, at-risk afterschool centers
 226.2 and 226.17a(a).          must be located in eligible areas and
                                provide afterschool care. For meals, at-
                                risk afterschool centers must be located
                                in eligible areas in one of the eligible
                                States and provide afterschool care.
Restrictions on for-profit     For-profit centers may not count at-risk
 center participation 7 CFR     children toward meeting the monthly
 226.2, 226.10(c),              eligibility criteria (25 percent of the
 226.11(b)(3), 226.11(c)(4),    children (enrolled or licensed capacity,
 226.17(b)(4), 226.17a(a)(2).   whichever is less) must be eligible for
                                free or reduced price meals or Title XX
                                benefits).
Eligible afterschool care      The primary purpose of the eligible
 programs 7 CFR 226.17a(b).     afterschool care program is to provide
                                afterschool care, and it must provide
                                education or enrichment activities.
Eligible children 7 CFR        Children must be 18 and under or meet the
 226.2, 226.17a(c).             CACFP definition of ``Persons with
                                disabilities''.
Eligible area 7 CFR 226.2,     Eligible area is defined as the
 226.17a(i).                    attendance area of a school in which at
                                least 50 percent of enrolled children
                                are eligible for free or reduced price
                                school meals.

[[Page 16215]]

 
Licensing/approval             The center must be licensed or approved
 requirements 7 CFR             if required by State or local licensing
 226.6(d)(1), 226.17a(d).       authority; otherwise, it must meet
                                State, local, or Federal health and
                                safety requirements.
Application procedures 7 CFR   The organization must submit written
 226.6(b)(1), 226.17a(e).       application to sponsoring organization
                                or to the State agency (if it is an
                                independent center) and must provide
                                documentation of area eligibility.
Handling renewals or changes   At-risk afterschool centers must submit
 7 CFR 226.6(b)(2),             changes to sponsor or State agency as
 226.6(f)(2)(ii),               appropriate and reapply every 3 years.
 226.6(f)(3)(ii), 226.17a(g).   Area eligibility is valid for 5 years,
                                unless the State agency chooses to
                                incorporate area eligibility decisions
                                into the three-year application cycle.
Cost of at-risk snacks and     Snacks and meals must be served free of
 meals 7 CFR 226.17a(j).        charge.
Limit on daily reimbursements  Benefits under the at-risk provisions are
 7 CFR 226.17a(k).              one at-risk snack and one at-risk meal
                                (in eligible States) per child per day,
                                which count toward the maximum benefit
                                in CACFP of two meals and one snack or
                                one meal and two snacks per child per
                                day.
Meal pattern requirements 7    At-risk afterschool snacks and meals must
 CFR 226.17a(l), 226.20(b),     meet CACFP meal pattern requirements.
 226.20(c).
Time periods for meals or      A snack and/or meal is served after a
 snacks 7 CFR 226.17a(m).       child's school day. On weekends and
                                holidays, with State agency approval,
                                one snack may be served anytime, and in
                                the eligible States, any one meal
                                (breakfast, lunch, or supper) may be
                                served.
Reimbursement rates 7 CFR      Centers are reimbursed at the applicable
 226.17a(n).                    free rate for snacks or meals.
Recordkeeping requirements 7   In addition to other recordkeeping
 CFR 226.17a(o).                requirements for CACFP centers, at-risk
                                afterschool centers must take daily
                                attendance and count the number of
                                snacks and/or meals served.
Reporting requirements 7 CFR   In addition to other reporting
 226.17a(p).                    requirements for CACFP centers, at-risk
                                afterschool centers must report the
                                number of snacks and/or meals served
                                each day.
Monitoring requirements 7 CFR  Monitoring is the same as for other CACFP
 226.17a(q), 226.6(m),          center-based programs.
 226.16(d)(4).
------------------------------------------------------------------------

9. What new provisions affecting at-risk meals and/or snacks are 
proposed in this rule?

    This rule proposes to add definitions at 7 CFR 226.2 for At-risk 
afterschool meal and At-risk afterschool snack. We propose these 
definitions to distinguish the snacks and meals served under the at-
risk afterschool component of the Program from the meals and snacks 
served under the other components of the Program, such as day care 
homes, adult day care centers, outside-school-hours care centers, and 
traditional child care centers. At-risk afterschool meals and snacks 
must meet the same meal pattern requirements as all other meals and 
snacks served under the CACFP (as described at 7 CFR 226.20(a)(1) 
through (a)(4)). However, the at-risk meal and/or snack services differ 
from other meals and snacks because they are served free to all 
participants through age 18 and are reimbursed at the applicable free 
rate. At-risk afterschool meals are further distinguished from at-risk 
afterschool snacks by being limited to the eligible States. These 
distinguishing factors necessitate the need for separate definitions of 
at-risk snacks and at-risk meals.
    In addition, we propose to clarify in 7 CFR 226.17a(m) the times 
when an at-risk snack or meal may be served. When school is in session, 
at-risk afterschool care centers must serve the snack or meal after 
school hours. On each day of a weekend or holiday program during the 
regular school year, State agencies may approve reimbursement of a 
snack served at any time of the day and, in the eligible States, any 
one meal (breakfast, lunch, or supper). The prohibition of at-risk 
afterschool snack or meal services during summer vacation (except for 
centers located in the attendance area of a school operating on a year-
round schedule) is unchanged.

II. Procedural Matters

Executive Order 12866

    This proposed rule has been determined to be significant and was 
reviewed by the Office of Management and Budget (OMB) under Executive 
Order 12866.

Regulatory Impact Analysis

    The Regulatory Impact Analysis completed for this proposed rule is 
available from: Julie Brewer, Policy and Program Development Branch, 
Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park 
Center Drive, Alexandria, VA 22302, phone (703) 305-2590. The analysis 
is summarized below.

Need for Action

    The CACFP at-risk afterschool meal component was authorized by the 
Agriculture Risk Protection Act of 2000 (Pub. L. 106-224), and modified 
by the Agriculture, Rural Development, Food and Drug Administration, 
and Related Agencies Appropriations Act, 2002 (Pub. L. 107-76), and the 
Consolidated Appropriations Act, 2008 (Pub. L. 110-161). The at-risk 
meal component has been implemented through FNS guidelines since its 
creation. FNS guidelines also govern the CACFP at-risk afterschool 
snack component; the guidelines for the afterschool snack and meals 
components of CACFP are largely the same. A final rule for the 
afterschool snack component was published on July 31, 2007 (72 FR 
41591). Relatively minor changes to the regulations as amended by that 
rule are needed to make the regulations fully applicable to both the 
snack and meal components of the at-risk afterschool care program. This 
rule proposes those changes. This rule also contains language that 
would, when published as a final rule, codify the elements of current 
guidelines unique to the afterschool meal component.

Benefits

    Among the motivating factors to establish the at-risk afterschool 
snack program was a desire to support educational and enriching 
afterschool care programs for children up to 18 years of age in at-risk 
neighborhoods in order to reduce juvenile crime and educational 
underachievement. FNS cannot quantify the impact of the at-risk meals 
program on juvenile crime or educational achievement. However, 
participation in these programs is growing and thus these outcomes are 
to some extent fostered. In the first four years of the program, growth 
in afterschool meals served by the seven at-risk States eligible at 
that time ranged from 2 to 8 percent higher than afterschool meals 
served by non-participating States. However, data

[[Page 16216]]

reported since 2004 suggests that this disparity in growth has ended, 
at least temporarily, and it is too soon to credit the program with a 
sustained long-term impact on afterschool program attendance.
    Although some at-risk meals served afterschool replaced meals 
served by outside-school-hours care centers, there is also considerable 
evidence that the total number of children reached by CACFP has 
increased, to date, as a result of this program. The percentage of at-
risk meals that would have been served in traditional child care 
centers in the absence of the at-risk program is, of course, uncertain. 
However, it may be as high as 70 percent. That figure suggests that 30 
percent of total at-risk participants, or roughly 37,000 children on an 
average school day during FY 2006, would not have received a federally-
reimbursable supper if not for the at-risk program. The program 
benefits those 37,000 children by providing them with a meal that 
conforms to USDA meal patterns. In addition, all children served by the 
at-risk program, approximately 123,000 per day during FY 2006, benefit 
from the program's structured educational or enrichment elements.

Costs

    This proposed rule would, when published as a final rule, codify 
guidelines governing an existing program component that started in 2001 
as mandated by statute. As a result, there are no new reimbursement 
costs associated with the rule. The at-risk afterschool meals program 
cost the Federal government a total of $139.8 million in FY 2002 to FY 
2006, and is projected to cost a total of $224.6 million from FY 2007 
to FY 2011. Costs include both the reimbursement rate that the Federal 
government pays for each meal, as well as the commodity assistance 
given to the program. State reporting data do not clearly detail how 
many additional meals are being served to new participants of the at-
risk afterschool meals program that would not have participated in the 
outside-school-hours care center program, thus the incremental costs of 
the at-risk meals program are likely small but cannot be determined.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Nancy Montanez 
Johner, Under Secretary for Food, Nutrition, and Consumer Services, has 
certified that this rule will not have a significant impact on a 
substantial number of small entities. At-risk afterschool care centers 
in the eligible States choose whether they wish to participate in this 
additional meal service. Most of these institutions that will choose to 
add a meal service are already providing snacks under the at-risk 
component of the CACFP. The additional meal service will not have a 
significant paperwork or reporting burden because it is incorporated 
under the existing agreement and Claim for Reimbursement.

Unfunded Mandates Reform Act

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

Executive Order 12372

    The Child and Adult Care Food Program is listed in the Catalog of 
Federal Domestic Assistance under No. 10.558. For the reasons set forth 
in the final rule in 7 CFR part 3015, Subpart V and related Notice 
published at 48 FR 29114, June 24, 1983, this Program is included in 
the scope of Executive Order 12372, which requires intergovernmental 
consultation with State and local officials.

Executive Order 13132

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under Section (6)(b)(2)(B) of Executive Order 13132. FNS has 
considered the impact of this rule on State and local governments and 
has determined that this rule does not have federalism implications. 
This rule does not impose substantial or direct compliance costs on 
State and local governments. Therefore, under Section 6(b) of the 
Executive Order, a federalism summary impact statement is not required.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule when published in final is intended to have 
preemptive effect with respect to any State or local laws, regulations 
or policies which conflict with its provisions or that would otherwise 
impede its full implementation. This rule is not intended to have 
retroactive effect unless so specified in the Dates paragraph of the 
final rule. Prior to any judicial challenge to the provisions of this 
rule or the application of its provisions, all applicable 
administrative procedures must be exhausted. In the CACFP, the 
administrative procedures are set forth at 7 CFR 226.6(k), which 
establishes appeal procedures, and at 7 CFR 226.22, 3016, and 3019, 
which address administrative appeal procedures for disputes involving 
procurement by State agencies and institutions.

Civil Rights Impact Analysis

    FNS has reviewed this proposed rule in accordance with the 
Department Regulation 4300-4, ``Civil Rights Impact Analysis'' to 
identify and address any major civil rights impact the rule might have 
on minorities, women, and persons with disabilities. After a careful 
review of the rule's intent and provisions, FNS has determined that 
there is no negative effect on these groups. All data available to FNS 
indicate that protected individuals have the same opportunity to 
participate in the CACFP as non-protected individuals. The regulations 
at 7 CFR 226.6(b)(4)(iv) require that CACFP institutions agree to 
operate the Program in compliance with applicable Federal civil rights 
laws, including title VI of the Civil Rights Act of 1964, title IX of 
the Education amendments of 1972, Section 504 of the Rehabilitation Act 
of 1973, the Age Discrimination Act of 1975, and the Department's 
regulations concerning nondiscrimination (7 CFR parts 15, 15a, and 
15b). At 7 CFR 226.6(m)(1), State agencies are required to monitor 
CACFP

[[Page 16217]]

institution compliance with these laws and regulations.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
part 1320) requires that the Office of Management and Budget (OMB) 
approve all collections of information by a Federal agency from the 
public before they can be implemented. Respondents are not required to 
respond to any collection of information unless it displays a current 
valid OMB control number. Information collections in this proposed rule 
have been previously approved under OMB 0584-0055. There is no 
new burden associated with this proposed rule.

E-Government Act Compliance

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

List of Subjects in 7 CFR Part 226

    Accounting, Aged, Day care, Food assistance programs, Grant 
programs, Grant programs--health, American Indians, Individuals with 
disabilities, Infants and children, Intergovernmental relations, Loan 
programs, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

    Accordingly, 7 CFR part 226 is proposed to be amended as follows:

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

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

    Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell 
National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 
1765 and 1766).

    2. In Sec.  226.2:
    a. Add new definitions of ``At-risk afterschool meal'' and ``At-
risk afterschool snack'' in alphabetical order; and
    b. Amend the last sentence of the introductory text of the 
definition of ``For-profit center'' by adding the words ``and/or meal'' 
after the words ``at-risk afterschool snack''.
    The additions read as follows:


Sec.  226.2  Definitions.

* * * * *
    At-risk afterschool meal means a meal that meets the requirements 
described in Sec.  226.20(b)(6) and/or (c)(1), (c)(2), or (c)(3), that 
is reimbursed at the appropriate free rate and is served by an At-risk 
afterschool care center as defined in this section, which is located in 
a State designated by law or selected by the Secretary as directed by 
law.
    At-risk afterschool snack means a snack that meets the requirements 
described in Sec.  226.20(b)(6) and/or (c)(4) that is reimbursed at the 
free rate for snacks and is served by an At-risk afterschool care 
center as defined in this section.
* * * * *
    3. In Sec.  226.4, paragraph (d) is amended by adding a sentence at 
the end of the paragraph to read as follows:


Sec.  226.4  Payments to States and use of funds.

* * * * *
    (d) * * * For at-risk afterschool meals and at-risk afterschool 
snacks served to children, funds will be made available to each 
eligible State agency in an amount equal to the total calculated by 
multiplying the number of at-risk afterschool meals and the number of 
at-risk afterschool snacks served in the Program within the State by 
the national average payment rate for free meals and free snacks, 
respectively, under section 11 of the Richard B. Russell National 
School Lunch Act.
* * * * *


Sec.  226.9  [Amended]

    4. In Sec.  226.9, amend paragraph (b)(2) by removing the words 
``at-risk afterschool snack component'' and adding in their place the 
words ``at-risk afterschool care component''.
    5. In Sec.  226.10, revise the fourth sentence of the introductory 
text of paragraph (c) to read as follows:


Sec.  226.10  Program payment procedures.

* * * * *
    (c) * * * However, children who only receive at-risk afterschool 
snacks and/or at-risk afterschool meals must not be considered in 
determining this eligibility. * * *
* * * * *
    6. In Sec.  226.11:
    a. Revise the second sentence of paragraph (b)(3);
    b. Revise paragraph (c)(2); and
    c. Revise the second sentence of paragraph (c)(4).
    The revisions read as follows:


Sec.  226.11  Program payments for centers.

* * * * *
    (b) * * *
    (3) * * * However, children who only receive at-risk afterschool 
snacks and/or at-risk afterschool meals must not be considered in 
determining this eligibility. * * *
    (c) * * *
    (2) At-risk afterschool care institutions. Except as provided in 
paragraph (c)(4) of this section, State agencies must base 
reimbursement to each at-risk afterschool care center on the number of 
at-risk afterschool snacks and/or at-risk afterschool meals that are 
served to children.
* * * * *
    (4) * * * However, children who only receive at-risk afterschool 
snacks and/or at-risk afterschool meals must not be considered in 
determining this eligibility. * * *
* * * * *
    7. In Sec.  226.17, revise the third sentence of paragraph (b)(4) 
to read as follows:


Sec.  226.17  Child care center provisions.

* * * * *
    (b)* * *
    (4) * * * However, children who only receive at-risk afterschool 
snacks and/or at-risk afterschool meals must not be included in this 
percentage. * * *
* * * * *
    8. In Sec.  226.17a:
    a. Revise the heading of paragraph (a) and revise paragraph (a)(1) 
introductory text;
    b. Add a new paragraph (a)(1)(v);
    c. Revise paragraph (a)(2);
    d. Revise paragraphs (c), (j), (k), (l), (m), and (n);
    e. Revise paragraphs (o)(2), (o)(3), and (o)(4); and
    f. Revise paragraph (p).
    The addition and revisions read as follows:


Sec.  226.17a  At-risk afterschool care center provisions.

    (a) Organizations eligible to receive reimbursement for at-risk 
afterschool snacks and at-risk afterschool meals.
    (1) Eligible organizations. To receive reimbursement for at-risk 
afterschool snacks, organizations must meet the criteria in paragraphs 
(a)(1)(i) through (a)(1)(iv) of this section. To receive reimbursement 
for at-risk afterschool meals, organizations must meet the criteria in 
paragraphs (a)(1)(i) through (a)(1)(v) of this section.
* * * * *
    (v) Organizations eligible to be reimbursed for at-risk afterschool 
meals must be located in one of the eligible States designated by law 
or selected by the Secretary as directed by law.
    (2) Limitations. (i) To be reimbursed for at-risk afterschool 
snacks and/or at-risk afterschool meals, all organizations must:
    (A) Serve the at-risk afterschool snacks and/or at-risk afterschool 
meals

[[Page 16218]]

to children who are participating in an approved afterschool care 
program; and
    (B) Not exceed the authorized capacity of the at-risk afterschool 
care center.
    (ii) In any calendar month, a for-profit center must be eligible to 
participate in the Program as described in the definition of For-profit 
center in Sec.  226.2. However, children who only receive at-risk 
afterschool snacks and/or at-risk afterschool meals must not be 
considered in determining this eligibility.
* * * * *
    (c) Eligibility requirements for children. At-risk afterschool 
snacks and/or at-risk afterschool meals are reimbursable only if served 
to children who are participating in an approved afterschool care 
program and who either are age 18 or under at the start of the school 
year or meet the definition of Persons with disabilities in Sec.  
226.2.
* * * * *
    (j) Cost of at-risk afterschool snacks and meals. All at-risk 
afterschool snacks and at-risk afterschool meals served under this 
section must be provided at no charge to participating children.
    (k) Limit on daily reimbursements. Only one at-risk afterschool 
snack and (in eligible States) one at-risk afterschool meal per child 
per day may be claimed for reimbursement. A center that provides care 
to a child under another component of the Program during the same day 
may not claim reimbursement for more than two meals and one snack, or 
one meal and two snacks, per child per day, including the at-risk 
afterschool snack and the at-risk afterschool meal. All meals and 
snacks must be claimed in accordance with the requirements for the 
applicable component of the Program.
    (l) Meal pattern requirements for at-risk afterschool snacks and 
at-risk afterschool meals. At-risk afterschool snacks must meet the 
meal pattern requirements for snacks in Sec.  226.20(b)(6) and/or 
(c)(4); at-risk afterschool meals must meet the meal pattern 
requirements for meals in Sec.  226.20(b)(6) and/or (c)(1), (c)(2), or 
(c)(3).
    (m) Time periods for snack and meal services--(1) At-risk 
afterschool snacks. When school is in session, the snack must be served 
after the child's school day. With State agency approval, the snack may 
be served at any time on weekends and vacations during the regular 
school year. Afterschool snacks may not be claimed during summer 
vacation, unless an at-risk afterschool care center is located in the 
attendance area of a school operating on a year-round calendar.
    (2) At-risk afterschool meals. When school is in session, the meal 
must be served after the child's school day. With State agency 
approval, any one meal may be served (breakfast, lunch, or supper) per 
day on weekends and vacations during the regular school year. 
Afterschool meals may not be claimed during summer vacation, unless an 
at-risk afterschool care center is located in the attendance area of a 
school operating on a year-round calendar.
    (n) Reimbursement rates. At-risk afterschool snacks are reimbursed 
at the free rate for snacks. At-risk afterschool meals are reimbursed 
at the respective free rates for breakfast, lunch, or supper.
    (o) * * *
    (2) The number of at-risk afterschool snacks prepared or delivered 
for each snack service and/or (in eligible States) the number of at-
risk afterschool meals prepared or delivered for each meal service;
    (3) The number of at-risk afterschool snacks served to 
participating children for each snack service and/or (in eligible 
States) the number of at-risk afterschool meals served to participating 
children for each meal service; and
    (4) Menus for each at-risk afterschool snack service and each at-
risk afterschool meal service.
    (p) Reporting requirements. In addition to other reporting 
requirements under this part, at-risk afterschool care centers must 
report the total number of at-risk afterschool snacks and/or (in 
eligible States) the total number of at-risk afterschool meals served 
to eligible children based on daily attendance rosters or sign-in 
sheets.
* * * * *

    Dated: March 18, 2008.
Nancy Montanez Johner,
Under Secretary, Food, Nutrition, and Consumer Services.
 [FR Doc. E8-6235 Filed 3-26-08; 8:45 am]
BILLING CODE 3410-30-P