[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Rules and Regulations]
[Pages 16325-16328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7054]



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  Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Rules 
and Regulations  

[[Page 16325]]



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, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule amends the Child and Adult Care Food Program 
(CACFP) regulations to implement provisions from the Agricultural Risk 
Protection Act of 2000, the Agriculture, Rural Development, Food and 
Drug Administration, and Related Agencies Appropriations Act of 2002, 
the Consolidated Appropriations Act of 2008 the Omnibus Appropriations 
Act of 2009 and the Agriculture, Rural Development, Food and Drug 
Administration, and Related Agencies Appropriations Act of 2010, that 
authorize reimbursement to eligible States for a meal (normally a 
supper) served by at-risk afterschool care programs in eligible States.

DATES: Effective Date: This final rule is effective May 3, 2010.

FOR FURTHER INFORMATION CONTACT: Melissa Rothstein, Chief, 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

    In the Department's at-risk afterschool care program, afterschool 
meals are served to children participating in eligible afterschool care 
programs under CACFP in selected States, as authorized by law. At-risk 
afterschool meals and snacks are available to children through age 18 
(or individuals of any age if disabled) who are participating in an 
afterschool care program under the CACFP. At-risk care programs under 
the CACFP are those operated at sites located in an area in which at 
least 50 percent of local school children are certified eligible for 
free or reduced price meals.
    Although reimbursement for at-risk afterschool snacks is available 
in all States, at-risk afterschool meals are only available in States 
authorized by section 17(r)(5) of the Richard B. Russell National 
School Lunch Act (42 U.S.C. 1766 (r)(5))--currently, Connecticut, 
Delaware, Illinois, Maryland, Michigan, Missouri, Nevada, New York, 
Oregon, Pennsylvania, Vermont, West Virginia, Wisconsin, and the 
District of Columbia. 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. Programs may participate only if 
the basic purpose is to provide afterschool care and if the program is 
open to all eligible children. FNS supports physical activity as an 
important component in encouraging healthy lifestyle choices to 
children and in addressing childhood obesity. However, sports and 
athletic teams that limit membership for reasons other than space, 
security, or licensing requirements may not be approved for 
participation. 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.
    On March 27, 2008 (73 FR 16213), FNS published a proposed rule to 
add new definitions of ``at-risk afterschool meal'' and ``at-risk 
afterschool snack'' to the CACFP regulations. The rule also proposed to 
add ``meals'' to the at-risk afterschool component and revise the 
requirements for Program participation to reflect the provision of at-
risk afterschool snack and at-risk afterschool meal provision.

II. Discussion of Public Comments

    The comment period began on March 27, 2008, and ended May 27, 2008. 
Five comments were received on the proposed rule, four of which 
generally supported the proposed rule. One commenter represented a 
State agency, three represented advocacy groups and one was an 
individual citizen.
    Three commenters objected to the clause ``with State agency 
approval'' that was added in the proposed rule to 7 CFR 226.17a(m)(1) 
and (2), which would give State agencies the discretion to approve 
snack and meal service during weekends and vacations during the regular 
school year. The commenters were concerned that State agencies should 
not have the authority to deny meal service on weekends or school 
holidays and therefore requested that FNS remove the clause ``with 
State agency approval'' from any other corresponding reference.
    Centers and sponsors of centers that wish to participate in CACFP 
must demonstrate, to the satisfaction of the State agency through 
Program applications, agreements and regular reviews by the State 
agency, that an institution has the financial viability, administrative 
capability and Program accountability to properly operate CACFP. If the 
State agency determines that an institution is unable to properly 
manage weekend or vacation meals, the State agency may deny the request 
to serve those meals. FNS deems this process a necessary step in 
ensuring the ongoing integrity of the CACFP. Therefore, this final rule 
retains the provision as set forth in the proposed rule.
    Three commenters asked that USDA clearly state in the final 
regulations that afterschool meals can be served at any point during 
the afterschool program. They stated that the second CACFP integrity 
rule gave State agencies too much authority to determine appropriate 
serving times for CACFP, and that sponsors of at-risk afterschool care 
centers should be able to set their own meal service timeframes.
    Meal service requirements, which were a component of an interim 
rule, ``Child and Adult Care Food Program; Improving Management and 
Program Integrity,'' published September 1, 2004 (69 FR 53501), 
provided State agencies with broad authority to impose limits on the 
duration of meal services and the time between meal services. The 
proposed rule did not alter State agencies' authority in the existing 
provisions of the interim rule,

[[Page 16326]]

authorized at 7 CFR 226.20(k). They will therefore remain unchanged.

III. Procedural Matters

Executive Order 12866

    This rule has been determined to be significant and was reviewed by 
the Office of Management and Budget in conformance with Executive Order 
12866.

Regulatory Impact Analysis

Regulatory Impact Analysis
    The Regulatory Impact Analysis completed for this final rule is 
available from: Melissa Rothstein, Chief 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 Child and Adult Care Food Program's at-risk afterschool meals 
component, authorized by the Agricultural Risk Protection Act of 2000 
(Pub. L. 106-224) (42 U.S.C. 1766(r)), has been governed by FNS 
guidelines since its creation. This rule will align CACFP regulations 
to statutory provisions that provide an additional meal for at-risk 
children through age 18 who are participating in afterschool programs 
in eligible States.
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 
afterschool 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 in the seven States 
eligible at that time ranged from 2 to 8 percent higher than 
afterschool meals served by non-participating States. However, data 
reported since 2004 for these seven States 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 afterschool meals 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 
afterschool meals that would have been served in traditional child care 
centers in the absence of the at-risk care center program is, of 
course, uncertain. However, it may be as high at 65 percent. That 
figure suggests that nearly 35 percent of total at-risk afterschool 
participants, or roughly 49,000 children on an average school day 
during fiscal year (FY) 2008, would not have received a Federally-
reimbursable supper if not for the at-risk afterschool care center 
program. The program benefits those 49,000 children by providing them 
with a meal that conforms to USDA meal patterns. In addition, all 
children served by the at-risk afterschool care center program, 
approximately 142,000 per day during FY 2008, benefit from the 
program's structured educational or enrichment elements.
Costs
    Costs associated with the at-risk afterschool program include both 
the reimbursement rate that the Federal government pays for each meal, 
as well as the commodity assistance given to the program. Reimbursement 
and commodity assistance estimates alone however do not give a full 
sense of the economic impact of the program.
    While many of the CACFP free meal reimbursements have simply 
shifted from non at-risk afterschool care centers to at-risk 
afterschool care centers with no increase to program cost, meals 
previously provided by child care centers at full or reduced price are 
now provided free in at-risk centers. This shift increases 
reimbursement costs while serving no additional children. The economic 
impact of this shift appears to be modest and is estimated to increase 
reimbursement costs by approximately $6.7 million during FY 2002-2008. 
For FY 2009-2013 the projected costs associated with this shift are 
$8.0 million.
    While a large percentage of meals served in at-risk afterschool 
care centers simply replace meals that would have been served in non 
at-risk centers, it is estimated that 35% of the suppers served in at-
risk afterschool care centers are served to children who would not have 
received CACFP meals in the absence of the at-risk program. The net 
increase in meals served in at-risk centers represents a cost of an 
estimated $80.5 million during FY 2002-2008 and a cost of approximately 
$103.3 million during FY 2009-2013.
    The total economic impact of both the shift in meals from reduced 
price and paid to free and the net increase in meals for FY 2009-2013 
is estimated to be $111.3 million. This estimate, however, is sensitive 
to the assumption about the rate of growth that would have prevailed in 
the at-risk States in the absence of the at-risk afterschool care 
program. Because this rate is unknown, the cost estimate is subject to 
uncertainty.

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). Mr. Kevin 
Concannon, 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 the 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

    CACFP is listed in the Catalog of Federal Domestic Assistance under 
No. 10.558. For the reasons set forth in the

[[Page 16327]]

final rule in 7 CFR part 3015, Subpart V and related Notice published 
at 48 FR 29114, June 24, 1983, this Program is included from the scope 
of Executive Order 12372, which requires intergovernmental consultation 
with State and local officials. Since CACFP is a State administered, 
Federally funded program, FNS staff at headquarters and in regional 
offices have ongoing formal and informal discussions with State and 
local officials regarding Program implementation and policy issues. 
This arrangement allows State and local agencies to provide feedback 
that forms the basis for any discretionary decisions made in this and 
other rules.

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 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. 
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 CACFP, the administrative procedures are set 
forth at 7 CFR 226.6(k), which establishes appeal procedures and 7 CFR 
226.22 and 7 CFR parts 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 final rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify any 
major civil rights impacts the rule might have on children on the basis 
of age, race, color, national origin, sex, or disability. A careful 
review of the rule's intent and provisions revealed that the rule's 
intent does not affect the participation of protected individuals in 
CACFP.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
1320) requires that the Office of Management and Budget (OMB) approve 
all collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
The recordkeeping and reporting burden contained in this rule is 
approved under OMB No. 0584-0055. This final rule does not contain any 
new information collection requirements subject to approval by OMB 
under the Paperwork Reduction Act of 1995.

E-Government Act Compliance

    FNS is committed to complying with the E-Government Act, 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.

0
Accordingly, 7 CFR part 226 is amended as follows:

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

0
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).


0
2. In Sec.  226.2:
0
a. Add new definitions of ``At-risk afterschool meal'' and ``At-risk 
afterschool snack'' in alphabetical order; and
0
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.
* * * * *

0
3. In Sec.  226.4(d):
0
a. Insert ``Richard B. Russell'' before ``National School Lunch 
Program'' where it appears in the first sentence; and
0
b. Add a sentence at the end of the paragraph.
    The addition reads 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]

0
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''.

0
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. * * *
* * * * *

0
6. In Sec.  226.11:
0
a. Revise the second sentence of paragraph (b)(3);
0
b. Revise paragraph (c)(2); and
0
c. Revise the second sentence of paragraph (c)(4).

[[Page 16328]]

    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. * * *
* * * * *

0
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. * * *
* * * * *

0
8. In Sec.  226.17a:
0
a. Revise the heading of paragraph (a) and revise paragraph (a)(1) 
introductory text;
0
b. Add a new paragraph (a)(1)(v);
0
c. Revise paragraph (a)(2);
0
d. Revise paragraphs (c), (j), (k), (l), (m), and (n);
0
e. Revise paragraphs (o)(2), (o)(3), and (o)(4); and
0
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 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. An at-risk afterschool care 
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 19, 2010.
Kevin Concannon,
Under Secretary, Food, Nutrition and Consumer Services.
[FR Doc. 2010-7054 Filed 3-31-10; 8:45 am]
BILLING CODE 3410-30-P