[Federal Register Volume 84, Number 41 (Friday, March 1, 2019)]
[Rules and Regulations]
[Pages 6953-6961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03524]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 84, No. 41 / Friday, March 1, 2019 / Rules
and Regulations
[[Page 6953]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210 and 235
[FNS-2017-0039]
RIN 0584-AE60
Hiring Flexibility Under Professional Standards
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Final rule.
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SUMMARY: This final rule adds four flexibilities to the hiring
standards for new school nutrition program directors in small local
educational agencies (LEAs) and new State directors of school nutrition
programs under the Professional Standards regulations for the National
School Lunch Program and School Breakfast Program. First, to address
hiring challenges faced by small LEAs, which are those with 2,499 or
fewer students, this rule requires relevant food service experience
rather than school nutrition program experience for new school
nutrition program directors. Second, it provides State agencies with
discretion to consider documented volunteer or unpaid work as relevant
experience for new school nutrition program directors in LEAs with
2,499 or fewer students. Third, it gives State agencies discretion to
accept less than the required years of food service experience when an
applicant for a new director position in an LEA with fewer than 500
students has the minimum required education. Lastly, this rule adds
flexibility to the hiring standards for State directors of school
nutrition programs by allowing State agencies to consider applicants
with either a bachelor's or advanced degree in specified fields. These
changes are expected to expand the pool of candidates qualified to
serve as leaders in the school nutrition programs while continuing to
ensure that school nutrition professionals are able to perform their
duties effectively and efficiently.
DATES: This rule is effective April 30, 2019.
FOR FURTHER INFORMATION CONTACT: Tina Namian, Chief, School Programs
Branch, Policy and Program Development Division, Food and Nutrition
Service, 3101 Park Center Drive, 12th Floor, Alexandria, Virginia
22302; 703-305-2590.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule provides flexibilities to the hiring standards for
school nutrition program directors in small LEAs, which are those with
2,499 students or fewer and for State directors of school nutrition
programs.
On July 1, 2015, USDA implemented professional standards for school
nutrition personnel who manage and operate the National School Lunch
Program (NSLP) and the School Breakfast Program (SBP), as required by
the final rule Professional Standards for State and Local School
Nutrition Programs Personnel as Required by the Healthy, Hunger-Free
Kids Act of 2010 (80 FR 11077) and section 7(g) of the Child Nutrition
Act of 1966, as amended (42 U.S.C. 1776(g)). The professional standards
consist of hiring and continuing education/training requirements for
new school nutrition program directors of school food authorities
(SFAs), new State directors of school nutrition programs, and other
staff noted in the regulation. Hiring and continuing education/training
standards for school nutrition program directors and other SFA staff
are established at 7 CFR 210.30. Hiring and continuing education/
training standards for State directors of school nutrition programs and
State directors of distributing agencies are established at 7 CFR
235.11(g).
The professional standards are intended to ensure that school
nutrition professionals who manage and operate the NSLP and SBP have
adequate knowledge and training to meet program requirements. Requiring
set qualifications to operate the NSLP and SBP provides program
operators with the knowledge and tools necessary to improve menu
planning and service, reduce eligibility and counting errors, and
enhance program integrity.
The hiring standards for school nutrition program directors are
determined based on student enrollment at three LEA enrollment size
levels: 2,499 students or fewer; 2,500-9,999 students; and 10,000 or
more students. As discussed in the proposed rule Hiring Flexibility
Under Professional Standards (83 FR 9447, March 6, 2018), since
implementation of the professional standards in 2015, USDA has received
multiple inquiries from State agencies on behalf of SFAs that are
facing challenges with the hiring standards applicable to LEAs with
2,499 students or fewer. These challenges include limited labor markets
and difficulty recruiting qualified candidates for new school nutrition
program director positions. To assist the SFAs with these challenges
and provide more local control over hiring decisions that reflect their
unique labor markets, USDA proposed changes to the hiring standards at
7 CFR 210.30(b)(1)(i) for LEAs with 2,499 students or fewer. Public
comments received in response to the proposed rule helped inform the
development of this final rule.
For school nutrition program directors in LEAs with 2,499 students
or fewer, this final rule:
Removes the requirement of school nutrition program
experience for new directors and instead requires relevant food service
experience as the minimum standard to qualify new directors;
At the discretion of the State agency, allows an SFA to
hire a new director with documented volunteer or unpaid relevant food
service experience on an individual basis; and
Allows a State agency to approve an SFA to use the
nonprofit school food service account to pay the salary of a school
nutrition program director who does not meet the hiring standards so
long as the SFA is complying with a State agency-approved plan to
ensure the director will meet the professional standards requirements.
For LEAs with fewer than 500 students, this final rule provides
State agencies the discretion to approve the hiring of a school
nutrition program director who has less than the required years of food
service experience, provided the applicant has the minimum education
specified in the hiring standards for LEAs with 2,499 students or
fewer.
For a new State director of school nutrition programs, the current
[[Page 6954]]
regulations at 7 CFR 235.11(g)(1)(i) require a bachelor's degree with
an academic major in food and nutrition, food service management,
dietetics, family and consumer sciences, nutrition education, culinary
arts, business, or a related field. USDA proposed to allow an
individual with a master's degree in one of those specified fields to
be hired as a State director of school nutrition programs in
recognition that many professionals change careers and gain experience
through advanced education in areas relevant to school nutrition and to
attract a larger number of professionals qualified to lead and manage
the school nutrition programs statewide. This was intended to help
ensure that individuals with relevant advanced degrees are not
prevented from serving as State directors of school nutrition programs.
Therefore, this final rule allows a State agency to hire as a State
director of school nutrition programs an individual who has a master's
or doctorate degree in one of the specified fields regardless as to the
field of their bachelor's degree.
II. Overview of Public Comments and USDA Response
During the 60-day comment period (March 6, 2018-May 7, 2018), USDA
received a total of 79 comments, including 3 non-germane comments and 2
duplicates. All comments, except the non-germane comments, are posted
online at www.regulations.gov (see docket FNS-2017-0039, Hiring
Flexibility under Professional Standards). These germane comments were
submitted by State government personnel, State and national
associations, school food service staff, school district personnel,
food service management companies, and individuals. USDA appreciates
the thoughtful comments submitted by stakeholders and the public.
In general, 36 comments favored the proposed rule in its entirety
and 9 comments supported portions of the rule. Commenters in favor of
the flexibilities agreed that small LEAs have a difficult time hiring
qualified candidates and that the proposed flexibilities would help
those struggling LEAs find a qualified director by allowing them to
consider relevant food service experience if the applicants do not have
specific school nutrition program experience. Three comments opposed
the rule in its entirety, and four comments opposed portions of the
proposed rule or the existence of Professional Standards for School
Nutrition Professionals in general. Commenters opposed to the
flexibilities noted that all school nutrition professionals must follow
the same program requirements, regardless of the size of the LEA. Other
comments were not clearly in favor of or opposed to the rule, expressed
different views, or discussed other areas of school nutrition.
The following discussion includes public comments made in response
to specific proposed provisions, as well as other suggestions made by
commenters. The discussion does not include the public comments
generally supportive of, or opposed to, the rule in its entirety.
Hiring Standards Flexibilities for School Nutrition Program Directors
in LEAs With 2,499 Students or Fewer
In order to assist SFAs operating in LEAs with 2,499 students or
fewer, the proposed rule included changes to the hiring standards for
school nutrition program directors at Sec. 210.30(b)(1)(i). The
proposed changes included:
Removing the requirement of school nutrition program
experience for new school nutrition program directors and instead
requiring relevant food service experience to meet the hiring standard;
Providing State agencies with the discretion to approve
the hiring of an applicant with volunteer or unpaid relevant food
service experience on an individual basis; and
For LEAs with fewer than 500 students, providing State
agencies with the discretion to approve the hiring of a school food
service director who has less than the required years of relevant food
service experience, provided that the applicant has the minimum
education to satisfy the hiring standards for LEAs with 2,499 students
or fewer.
Proposed Flexibility: Allowing Relevant Food Service Experience in
Addition to School Nutrition Program Experience
In recognition of the difficulties that LEAs with 2,499 students or
fewer face when seeking to recruit candidates for school nutrition
program director, USDA proposed to provide flexibility in Sec.
210.30(b)(1)(i) with regard to the hiring standards for school
nutrition program directors to allow for the consideration of relevant
food service experience gained inside or outside of school nutrition
program operations.
Comments
Six commenters specifically voiced their support for the
flexibility to allow food service experience that was not school
nutrition program-specific in order to expand the pool of qualified
applicants for the position of school nutrition program director in
LEAs with 2,499 students or fewer. These commenters included four State
agencies, one school food service staff member, and one food service
management company. These commenters cited difficulties recruiting to
small LEAs individuals who have experience specific to school food
service while also pointing out that general food service experience
adds value to school food service operations.
Four commenters opposed this flexibility. These commenters included
one professional organization, two school food service staff members,
and one individual member of the public. These commenters voiced
concern that allowing general food service experience to substitute for
school nutrition program experience would diminish the standards for
school food service in these LEAs.
USDA Response
USDA appreciates the comments received on this flexibility. USDA
agrees that candidates with school nutrition program experience are
best prepared for the school nutrition program director position. These
individuals are more likely to be informed of the most current school
nutrition practices and regulations and are therefore preferred.
However, applicants with experience managing food service operations at
a healthcare facility, restaurant, civic/community organization, or
other type of establishment have demonstrated transferable skills in
food service that could be applied in a school food service setting.
Examples of such skills include food handling and preparation,
financial management, and customer service. By meeting the requisite
number of years of relevant food service experience cited in Sec.
210.30(b)(1)(i)(B), (C), and (D), individuals will have sufficient food
service experience to responsibly perform the duties required of school
nutrition program directors in these LEAs with proportionate levels of
responsibility and complexity.
Program directors are still required to complete annual continuing
education/training. Additionally, USDA encourages new school nutrition
program directors hired with food service experience that is not
specific to school nutrition settings to complete additional school
nutrition training or work toward a State-recognized certificate for
school nutrition directors. Several entities, such as the Institute for
Child Nutrition, offer no-cost or low-cost continuing education/
training in a variety of formats, and such training is an allowable use
of the nonprofit school food service account.
While we encourage hiring school food service directors who have
previous school nutrition experience,
[[Page 6955]]
USDA is aware of the difficulties LEAs with 2,499 students or fewer
face when recruiting for such positions and wants to provide
flexibility to LEAs in meeting their hiring needs. Flexibility to allow
relevant food service experience to qualify applicants under the hiring
standards for LEAs with 2,499 students or fewer expands the pool of
applicants for those LEAs in communities that may have recruitment
difficulties. Accordingly, this final rule amends Sec.
210.30(b)(1)(i)(B), (C), and (D) to allow for the consideration of
relevant food service experience generally rather than specific school
nutrition program experience.
Proposed Flexibility: State Agency Discretion To Consider Volunteer or
Unpaid Work Experience
USDA proposed to provide flexibility in Sec. 210.30(b)(1)(i)(B),
(C), and (D) by giving State agencies the discretion to allow LEAs with
2,499 students or fewer to hire school nutrition program directors who
have relevant food service experience whether that experience was in a
paid or unpaid/volunteer food service position. The State agency would
use this discretion on an individual, case-by-case basis. For example,
an applicant with paid and/or unpaid experience managing food service
operations at a healthcare facility, restaurant, civic/community
organization, or other type of establishment could be considered for a
director's position, provided that that applicant also has the required
education.
Comments
Five commenters supported accepting unpaid or volunteer experience
toward meeting the food service experience standard. Those five
commenters were comprised of three State agencies, one food service
management company, and one individual.
Four commenters--one State agency, one professional organization
and two individuals--opposed the proposed flexibility. Some of these
commenters stated that unpaid or volunteer experience would weaken
standards when such experience is not substantive and does not equip
candidates with the necessary skills and background in school nutrition
programs. One commenter suggested requiring verifiable written
documentation of the unpaid or volunteer experience.
USDA Response
USDA affirms the discretion of State agencies to allow LEAs with
2,499 students or fewer to hire school nutrition program directors with
unpaid food service experience on an individual basis, as specified by
the State agency. The flexibility to consider unpaid experience
acknowledges that in smaller communities there may be fewer employment
opportunities in food service, but residents may be able to volunteer
to manage food service activities for civic and community
organizations. An applicant for a school nutrition program director
position may also have relevant experience in an unpaid apprenticeship
or internship.
A State agency has the discretion to establish a process to use
this flexibility. The existing requirements for experience in Sec.
210.30(b)(1)(i)(B), (C), and (D) are between one and three years of
relevant food service experience, depending on the level of education
obtained by the applicant. Given the parameters of this flexibility, as
well as the necessity of having such a flexibility available in certain
cases, this provision is finalized in this rule. However, this final
rule requires that unpaid or volunteer work, when used to qualify an
individual to be a school nutrition program director, must be
documented to verify that the unpaid work is relevant and actually
occurred. For example, documentation of volunteer work in a school
cafeteria could include a letter from the school nutrition program
director stating the amount of time the individual worked, the
substantive work they performed, and the skills they learned.
Accordingly, this final rule amends Sec. 210.30(b)(1)(i)(B), (C), and
(D) to allow State agency discretion to consider relevant food service
experience for school nutrition program directors to include documented
unpaid or volunteer work. This discretion shall be applied on an
individual basis.
Other Comment: Use of the Nonprofit School Food Service Account To Pay
Salaries
The regulations in Sec. 210.30(b)(1)(i) provide that new school
nutrition program directors in LEAs with an enrollment of 2,499
students or fewer must meet specific hiring standards. These hiring
standards include minimum educational requirements that may be combined
with relevant work experience, depending on the educational degree
held. Pursuant to Sec. Sec. 210.2, 210.14(a), 210.18(h), 210.18(l),
210.19(a), and 210.21(a), if a director does not meet the hiring
standards, an SFA cannot use the nonprofit school food service account
to pay the director's salary.
Comments
Two commenters suggested that SFAs be permitted to use the
nonprofit school food service account to pay the salary of a director
who does not meet the hiring requirements, provided that the SFA is
implementing a Corrective Action Plan to meet the professional
standards requirements.
USDA Response
USDA agrees with these commenters and recognizes the difficulties
some LEAs with 2,499 students or fewer experience when hiring new
school nutrition program directors. Generally, if a school nutrition
program director does not meet the hiring standards, failure to meet
the standards would be considered a finding for purposes of the
Administrative Review. In this instance, the State agency could take
fiscal action by requiring the SFA to repay with non-Federal funds any
of the director's salary paid from the nonprofit school food service
account, and disallow further payment to the director with Federal
funds, including the nonprofit school food service account.
Requirements should be reasonable and achievable, and the fiscal impact
of not being able to use the nonprofit school food service account to
pay the salary of a school nutrition program director could jeopardize
an SFA's financial viability and ability to participate in the NSLP and
SBP. Therefore, for LEAs with a student enrollment of 2,499 or fewer,
this final rule provides that a State agency may approve an SFA to use
the nonprofit school food service account to pay the salary of a school
nutrition program director who does not meet the hiring standards so
long as the SFA is complying with a State agency-approved plan to
ensure the director will meet the professional standards requirements
in Sec. 210.30.
The plan must include reasonable timeframes for the SFA to achieve
and maintain compliance and ensure the director will meet the
qualifications, whether by gaining experience or completing educational
requirements. The plan may also include required training and/or
educational courses. LEAs with student enrollment of 2,499 or fewer
have faced challenges in hiring directors who meet the required
qualifications, and this flexibility will help to address the needs of
their unique labor markets while ensuring standards are still met.
Accordingly, this final rule amends Sec. 210.30(b)(1)(i) to allow a
State agency to approve an SFA to use the nonprofit school food service
account to pay the salary of a school nutrition program director who
does not
[[Page 6956]]
meet the hiring standards so long as the SFA is complying with a State
agency-approved plan to ensure the director will meet the professional
standards requirements.
Other Comment: Higher Educational Degrees
Comment
A commenter suggested USDA expand to school nutrition program
directors the proposed flexibility for State directors of school
nutrition programs to allow a master's degree in a specified field with
a bachelor's degree in any field.
USDA Response
The regulation at Sec. 210.30(b)(1) does not currently allow a
master's or doctorate degree in a specified field to supplement a
bachelor's degree in any field for school nutrition program directors.
USDA recognizes the value of an advanced degree in a specified field,
and encourages school nutrition professionals to continue to learn and
expand their knowledge in the field. However, the flexibility suggested
by the commenter falls outside the scope of the proposed rule and has
not been included in this final rule. USDA may consider this suggestion
in a future rulemaking regarding professional standards.
Other Comment: Scope of the Flexibilities
Comments
Six commenters suggested expanding the scope of the flexibilities
beyond those included in the proposed rule. Two State agencies
requested the school nutrition director flexibilities for LEAs with
fewer than 500 students be expanded to LEAs with an enrollment of 1,000
students. Another State agency requested the flexibilities be applied
to all LEAs located in rural settings, regardless of enrollment size.
One State association requested the proposed flexibilities be applied
to schools of all enrollment categories. An individual requested that
LEAs with fewer than 500 students be exempt from the standards
entirely, while another individual wanted to expand the enrollment
categories from below 2,500 students to 3,500 students.
USDA Response
USDA does not support expanding the scope of the flexibilities to
include LEAs of larger sizes in Sec. 210.30(b)(1)(ii) and (iii). Such
an action would be inconsistent with the intent of the proposed rule,
which addressed hiring challenges at LEAs with enrollments of 2,499
students or fewer. We note that as LEA size increases, the level of
responsibility and complexity also increases, which necessitates higher
standards. However, we also note the existing Professional Standards
regulation includes several different pathways for candidates to meet
the educational and experience requirements for all LEA enrollment size
categories. In addition, we do not agree with eliminating the
professional standards for schools with fewer than 500 students or
expanding the flexibilities for all rural schools. However, we expect
that the flexibilities outlined in this final rule will address the
specific challenges of such schools because these flexibilities will
likely expand the pool of qualified candidates.
Other Comment: School Consolidations
Comment
A professional organization provided a comment discussing unique
challenges facing small school districts in the process of
consolidation with other school districts. The organization noted
consolidation could increase the level of student enrollment of an LEA.
In that case, the hiring standards for the SFA director could shift
into a larger LEA enrollment category under the Professional Standards
regulation in Sec. 210.30(b)(1). The organization requested that USDA
allow State agencies to work with consolidating school districts and
provide a transition period for the affected school nutrition
professionals to work towards the professional standards requirements
at the school district's new enrollment size category.
USDA Response
Although USDA recognizes the potential challenges for an SFA making
decisions regarding staff when school districts combine, this final
rule will not provide the transition period requested by the commenter.
It is notable that we did not receive any comments on this issue from
State agencies, which would be most affected if USDA were to establish
a process for transition during a school district consolidation.
Additionally, many factors are involved in staffing decisions when
school districts combine. Therefore, instead of developing a regulatory
process, USDA will work with the State agency, on an individual basis,
when a school district consolidation shifts an SFA into a larger
enrollment size category for hiring under Professional Standards in
Sec. 210.30(b)(1).
Other Comments: Combinations of Experience, Training, and Education
Comments
Nine commenters who identified themselves as school nutrition
professionals suggested allowing school nutrition experience to
substitute for education. Three of these commenters specifically
recommended 10 years of school nutrition experience be allowed to
substitute for a bachelor's degree. Two of the nine commenters noted
the importance of balancing the education and experience requirements
so applicants with a weakness in one area can compensate with strengths
in another.
USDA Response
While USDA understands school nutrition experience is valuable in
operating school nutrition programs, this final rule does not allow
such experience to substitute for education in Sec. 210.30(b)(1). One
of the purposes of this rule is to provide flexibility for the type of
experience required for new school nutrition program directors in small
LEAs, and it is outside the scope of the rule to allow experience to
substitute for education. USDA appreciates the various strengths and
experiences that school nutrition program directors bring to the
programs they administer but is not expanding the flexibilities to
substitute experience for education in this final rule. Educational
requirements bolster the credentials of school nutrition program
directors and enhance their practical experience with formal academic
instruction. However, this rule does not change the current regulation
at Sec. 210.30(b)(1) that allows school nutrition program directors
hired before July 1, 2015 to remain in their positions or to transfer
to other positions in LEAs of the same or smaller enrollment category.
Comment
One commenter suggested granting flexibility to allow a State-
recognized certificate to substitute for education for a school
nutrition program director in an LEA of any size.
USDA Response
USDA will continue to encourage school nutrition professionals to
learn and expand their knowledge and skills in the field. USDA
recognizes the value of a State-recognized certificate in school
nutrition programs as a means to advance the profession. However, the
flexibility suggested by the commenter falls outside the scope of the
proposed rule and has not been included in this final rule.
[[Page 6957]]
Other Comment: Waivers of the General Professional Standards
Comment
One State agency indicated it would like the ability for State
agencies to grant waivers to these regulatory requirements on a case-
by-case basis for applicants who do not meet the minimum hiring
criteria.
USDA Response
USDA will not establish through this final rule a separate waiver
process for these provisions since there is a general waiver process in
place, as prescribed in Section 12(l) of the Richard B. Russell
National School Lunch Act, as amended. Under the general waiver
process, USDA must determine that a waiver facilitates the State's (or
other service provider's) ability to carry out the purpose of the
affected program; the entity requesting the waiver must provide notice
and information to the public regarding the proposed waiver; and the
entity requesting the waiver must demonstrate that the waiver will not
increase the overall cost to the Federal Government, or that any
additional cost will be paid from non-Federal funds. USDA then
periodically reviews the performance of any State or other service
provider granted a waiver. This waiver process may be used when seeking
waivers from the hiring requirements for a new school nutrition program
director, as well as a new State director of school nutrition programs.
Proposed Flexibility: Years of Experience for School Nutrition Program
Directors in LEAs With Fewer Than 500 Students
To provide additional assistance to LEAs with fewer than 500
students, USDA proposed to modify the current optional flexibility at
Sec. 210.30(b)(1)(i)(D), which provides State agencies discretion to
allow an SFA to hire a new school nutrition program director with a
high school diploma or equivalent, and less than the required years of
relevant school nutrition program experience. The proposed rule would
allow the State agency to approve the hiring of an applicant who has at
least a high school diploma or equivalent, but less than the required
years of relevant food service experience.
Comments
Ten commenters expressed support for the proposed flexibility.
These comments were received from four State agencies, five schools or
school food service staff, and one food service management company. One
commenter from a professional organization opposed the proposed change,
stating it would weaken the overall hiring standards. One commenter
from a State agency stated this proposed change should only be
acceptable if the new director had a minimum of one year experience in
addition to the minimum required education.
USDA Response
By expanding the existing optional flexibility at Sec.
210.30(b)(1)(i)(D) to include other, higher educational levels, USDA
affirms its commitment to providing LEAs with fewer than 500 students
more local control to address their unique hiring challenges. A new
director with a high school diploma or equivalent is currently required
to have at least three years of experience, while a new director with
an associate's degree or a bachelor's degree in any major must have at
least one year of experience. Therefore, expanding the existing
flexibility to allow an LEA with fewer than 500 students to hire an
individual with an academic degree higher than a high school diploma,
but less than the required years of experience, would pose little risk
to the food service program operation because fewer years of experience
is otherwise allowed for an individual with a high school diploma or
equivalent. Further, allowing an LEA with fewer than 500 students to
hire an individual with the required academic credentials but less
experience would expand the pool of potentially suitable candidates and
ensure the standards are both reasonable and achievable for these LEAs.
Accordingly, this final rule will revise Sec. 210.30(b)(1)(i)(D) and
add Sec. 210.30(b)(1)(i)(E) to provide State agencies discretion to
allow an LEA with fewer than 500 students to hire a new school
nutrition program director with a high school diploma or equivalency,
an associate's degree, or a bachelor's degree, but less than the
required years of relevant food service experience.
Proposed Flexibility: Academic Requirements for State Directors of
School Nutrition Programs
For a new State director of school nutrition programs, the current
regulations at Sec. 235.11(g)(1)(i) require a bachelor's degree with
an academic major in food and nutrition, food service management,
dietetics, family and consumer sciences, nutrition education, culinary
arts, business, or a related field. Pursuant to Sec.
235.11(g)(1)(i)(iv)(A), a master's degree in one of the specified
fields is strongly preferred. To encourage individuals with a master's
degree in one of the specified fields but a bachelor's degree in a non-
related field to apply, USDA proposed to add the option for a master's
degree in a specified field to the basic qualifications listed in Sec.
235.11(g)(1)(i). However, to emphasize the importance of a foundational
background in the specified fields, USDA also proposed to support a
preference for both a bachelor's and a master's degree in the specified
fields at Sec. 235.11(g)(1)(i)(iv)(A).
Comments
Seven commenters expressed support for the option to allow a
master's degree in one of the specified fields when hiring a State
director. Comments received in support of this flexibility were from
four State agencies, two professional organizations, and one
individual.
USDA did not receive any comments in opposition to this
flexibility. However, several commenters had additional suggestions.
One commenter from a State agency suggested requiring that State
directors have a master's degree, which is not currently a requirement.
A commenter from another State agency suggested allowing the hiring of
a State director with a bachelor's degree in any field if the candidate
has program and management experience. A trade association suggested
allowing varying combinations of educational degrees and years of
experience, such as a bachelor's degree in any field and four years of
experience managing Federal child nutrition programs at a State agency
level; or a bachelor's degree in any field, four years of general
program management experience, and a State-recognized certificate for
school nutrition directors.
USDA Response
To expand opportunities for highly educated individuals to serve as
State directors of school nutrition programs, this final rule will
allow a State agency to hire a candidate with a master's or doctorate
degree in one of the specified fields in Sec. 235.11(g)(1)(i)
regardless as to the field of their bachelor's degree. Adding a
master's or doctorate degree in one of the specified fields to the
basic qualifications acknowledges that many professionals change
careers and gain experience through advanced education in areas
relevant to school nutrition. It was not our intent to deny highly
educated individuals the ability to qualify for these positions. In
addition, it was not our intent to exclude a type of advanced degree in
the specified fields; therefore, we also add a doctorate
[[Page 6958]]
degree to the qualifications. For example, a State agency supervisor
who has a bachelor's degree in political science and a doctorate degree
in nutrition, who also meets the other qualifications, would have a
strong general education plus advanced education in one of the
specified areas. This final rule also affirms a preference for both a
bachelor's degree and a master's degree, or bachelor's and doctorate,
in the specified fields.
While we appreciate the additional suggestions for flexibility,
USDA will maintain a hiring standard for State directors of school
nutrition programs that is similar in structure to the existing
regulations. The existing combination of specific education and
experience is straightforward as far as facilitating implementation and
is sufficiently rigorous in recognition of the position's significance
to school nutrition programs in the States. Accordingly, this final
rule amends Sec. 235.11(g)(1)(i) to allow a master's or doctorate
degree in specified fields. Additionally, this final rule amends Sec.
235.11(g)(1)(iv)(A) to support a preference for both a bachelor's and a
master's or doctorate degree in the specified fields.
Procedural Matters
Executive Order 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This final rule has been determined to be not significant and was
therefore not reviewed further by the Office of Management and Budget
(OMB) in conformance with Executive Order 12866.
Regulatory Impact Analysis
This rule has been designated as not significant by the Office of
Management and Budget, therefore, no Regulatory Impact Analysis is
required.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, it has
been certified that this rule would not have a significant impact on a
substantial number of small entities. This rule would not have an
adverse impact on small entities in the National School Lunch Program
and School Breakfast Program, rather, it will ease program operations
by adding flexibility in the hiring standards for new directors in LEAs
with 2,499 students or fewer and new directors of State agencies.
Impact: The provisions of this rule apply to LEAs with 2,499
students or fewer, and to State agencies operating the National School
Lunch Program and School Breakfast Program. These entities meet the
definitions of ``small governmental jurisdiction'' and ``small entity''
in the Regulatory Flexibility Act. These entities would be able to
quickly benefit from the hiring flexibilities in this rule.
Executive Order 13771
Executive Order 13771 directs agencies to reduce regulation,
control regulatory costs, and provide that the cost of planned
regulations be prudently managed and controlled through a budgeting
process.
This final rule is an E.O. 13771 deregulatory action that eases the
professional standards regulations for State directors of school
nutrition programs and for school nutrition program directors in LEAs
with 2,499 students or fewer, which are often found in rural
communities facing labor market challenges. This rule addresses hiring
challenges, such as recruitment of qualified candidates, identified by
the State agencies that administer the Child Nutrition Programs. It
adds flexibility to hiring standards by expanding the range of
allowable education for new State directors, and the range of allowable
work experience for new local directors in small LEAs.
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 by State, local, or Tribal
governments, in the aggregate, or 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 most cost effective or least burdensome alternative that achieves
the objectives of the rule.
This final rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, and
Tribal governments or the private sector of $100 million or more in any
one year. Thus, the rule is not subject to the requirements of sections
202 and 205 of the UMRA.
Executive Order 12372
The National School Lunch Program and School Breakfast Program are
listed in the Catalog of Federal Domestic Assistance under Number
10.555 and Number 10.553, respectively, and are subject to Executive
Order 12372, which requires intergovernmental consultation with State
and local officials. (See 2 CFR chapter IV.) Since the Child Nutrition
Programs are State-administered, USDA's Food and Nutrition Service
(FNS) Regional Offices have formal and informal discussions with State
and local officials, including representatives of Indian Tribal
Organizations, on an ongoing basis regarding program requirements and
operation. Discussions also take place in response to technical
assistance requests submitted by the State agencies to the FNS Regional
Offices. This regular interaction with State and local operators
provides USDA with valuable input that informs rulemaking. Based on the
inquiries and waiver requests from the State agencies disclosing
challenges with the professional standards regulations, USDA is
providing specific flexibilities to address the requirement issues in a
manner that promotes program efficiency and effectiveness.
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under Section (6)(b)(2)(B) of Executive Order 13132.
The Department has considered the impact of this rule on State and
local governments and has determined that this rule does not have
federalism implications. Therefore, under section 6(b) of the Executive
Order, a federalism summary is not required.
[[Page 6959]]
Executive Order 12988, Civil Justice Reform
This final 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
and timely implementation. This rule is not intended to have
retroactive effect. Prior to any judicial challenge to the provisions
of the final rule, all applicable administrative procedures must be
exhausted.
Civil Rights Impact Analysis
USDA has reviewed this final rule in accordance with USDA
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify any
major civil rights impacts the rule might have on Program participants
on the basis of age, race, color, national origin, sex, or disability.
After a careful review of the rule's intent and provisions, USDA has
determined that this rule is not expected to affect the participation
of protected individuals in the National School Lunch Program and
School Breakfast Program, or limit the ability of protected classes of
individuals to serve as new directors in LEAs and State agencies. The
provisions of this rule add flexibility to the existing hiring
standards for new directors in order to address difficulties faced by
program operators in finding qualified applicants.
Executive Order 13175
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes. USDA notified Tribal leaders
about the proposed rule to encourage public comments, and briefed
Tribal leaders at the conference call scheduled by the FNS Office of
Tribal Relations on March 14, 2018. USDA will also notify Tribal
leaders about this final rule, and intends to brief Tribal leaders at
one of the periodic consultations or conference calls scheduled by the
FNS Office of Tribal Relations.
USDA has assessed the impact of this final rule on Indian tribes
and determined that this rule does not, to our knowledge, have negative
Tribal implications that require Tribal consultation under E.O. 13175.
We are unaware of any current Tribal laws that could be in conflict
with the provisions of this rule and anticipate that the hiring
flexibilities will benefit Tribal schools.
The flexibilities provided by this rule are expected to increase
the pool of candidates qualified to serve as new directors of school
nutrition programs in small LEAs. This is expected to benefit Tribal
communities, which often experience difficulty attracting qualified
school nutrition personnel.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR
1320) requires 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.
This rule does not contain information collection requirements
subject to approval by OMB under the Paperwork Reduction Act of 1995.
E-Government Act Compliance
The Department is committed to complying with the E-Government Act,
to promoting 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
7 CFR Part 210
Children, Commodity School Program, Food assistance programs, Grant
programs--health, Grant programs--education, School breakfast and lunch
programs, Nutrition, Reporting and recordkeeping requirements.
7 CFR Part 235
Administrative practice and procedure, Food assistance programs,
Grant programs--health, Grant programs--education, School breakfast and
lunch programs, Nutrition, Reporting and recordkeeping requirements.
Accordingly, 7 CFR parts 210 and 235 are amended as follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
0
1. The authority citation for part 210 continues to read as follows:
Authority: 42 U.S.C. 1751-1760, 1779.
0
2. Amend Sec. 210.30 by:
0
a. Revising paragraph (b)(1)(i) and;
0
b. Revising the table in paragraph (b)(2).
The revisions read as follows:
Sec. 210.30 School nutrition program professional standards.
* * * * *
(b) * * *
(1) * * *
(i) School nutrition program directors with local educational
agency enrollment of 2,499 students or fewer. Directors must meet the
requirements in paragraph (b)(1)(i)(A), (B), (C), or (D) of this
section. However, a State agency may approve a school food authority to
use the nonprofit school food service account to pay the salary of a
school nutrition program director who does not meet the hiring
standards herein so long as the school food authority is complying with
a State agency-approved plan to ensure the director will meet the
requirements.
(A) A bachelor's degree, or equivalent educational experience, with
an academic major or concentration in food and nutrition, food service
management, dietetics, family and consumer sciences, nutrition
education, culinary arts, business, or a related field;
(B) A bachelor's degree, or equivalent educational experience, with
any academic major or area of concentration, and either a State-
recognized certificate for school nutrition directors, or at least one
year of relevant food service experience. At the discretion of the
State agency, and on an individual basis, documented relevant food
service experience may be unpaid;
(C) An associate's degree, or equivalent educational experience,
with an academic major or area of concentration in food and nutrition,
food service management, dietetics, family and consumer sciences,
nutrition education, culinary arts, business, or a related field and at
least one year of relevant food service experience. At the discretion
of the State agency, and on an individual basis, documented relevant
food service experience may be unpaid; or
(D) A high school diploma or equivalency (such as the general
educational development diploma), and at least three years of relevant
food service experience. At the discretion of the State agency, and on
an individual
[[Page 6960]]
basis, documented relevant food service experience may be unpaid.
Directors hired under this criterion are strongly encouraged to work
toward attaining an associate's degree in an academic major in at least
one of the fields listed in paragraph (b)(1)(i)(C).
(E) For a local educational agency with less than 500 students, the
State agency may approve the hire of a director who meets one of the
educational criteria in paragraphs (b)(1)(i)(B) through (D) but has
less than the required years of relevant food service experience.
* * * * *
(2) * * *
Summary of School Nutrition Program Director Professional Standards by Local Educational Agency Size
----------------------------------------------------------------------------------------------------------------
Minimum requirements for Student enrollment 2,499 Student enrollment 2,500- Student enrollment
directors or less 9,999 10,000 or more
----------------------------------------------------------------------------------------------------------------
Minimum Education Standards Bachelor's degree, or Bachelor's degree, or Bachelor's degree, or
(required) (new directors only). equivalent educational equivalent educational equivalent educational
experience, with experience, with experience, with
academic major or academic major or academic major or
concentration in food concentration in food concentration in food
and nutrition, food and nutrition, food and nutrition, food
service management, service management, service management,
dietetics, family and dietetics, family and dietetics, family and
consumer sciences, consumer sciences, consumer sciences,
nutrition education, nutrition education, nutrition education,
culinary arts, business, culinary arts, culinary arts,
or a related field business, or a related business, or a related
field; field;
OR OR OR
Bachelor's degree, or Bachelor's degree, or Bachelor's degree, or
equivalent educational equivalent educational equivalent educational
experience, with any experience, with any experience, with any
academic major or area academic major or area academic major or area
of concentration, and of concentration, and a of concentration, and a
either a State- State-recognized State-recognized
recognized certificate certificate for school certificate for school
for school nutrition nutrition directors; nutrition directors;
directors or at least 1
year of relevant food
service experience;
OR OR OR
Associate's degree, or Bachelor's degree in any Bachelor's degree in any
equivalent educational academic major and at major and at least 5
experience, with least 2 years of years of experience in
academic major or relevant school management of school
concentration in food nutrition program nutrition programs.
and nutrition, food experience.
service management, OR......................
dietetics, family and Associate's degree, or
consumer sciences, equivalent educational
nutrition education, experience, with
culinary arts, business, academic major or
or a related field; and concentration in food
at least 1 year of and nutrition, food
relevant school service management,
nutrition program dietetics, family and
experience; consumer sciences,
OR....................... nutrition education,
High school diploma (or culinary arts,
GED) and 3 years of business, or a related
relevant food service field; and at least 2
experience.. years of relevant
school nutrition
program experience..
----------------------------------------------------------------------------------------------------------------
Minimum Education Standards Directors hired without Directors hired without Master's degree, or
(preferred) (new directors only). an associate's degree a bachelor's degree willingness to work
are strongly encouraged strongly encouraged to toward master's degree,
to work toward attaining work toward attaining preferred.
associate's degree upon bachelor's degree upon
hiring. hiring.
----------------------------------------------------------------------------------------------------------------
At least 1 year of
management experience,
preferably in school
nutrition, strongly
recommended.
At least 3 credit hours
at the university level
in food service
management plus at
least 3 credit hours in
nutritional sciences at
time of hiring strongly
preferred.
----------------------------------------------------------------------------------------------------------------
Minimum Prior Training Standards At least 8 hours of food safety training is required either not more than 5
(required ) (new directors only). years prior to their starting date or completed within 30 calendar days of
employee's starting date.
----------------------------------------------------------------------------------------------------------------
* * * * *
PART 235--STATE ADMINISTRATIVE EXPENSE FUNDS
0
3. The authority citation for part 235 continues to read as follows:
Authority: Secs. 7 and 10 of the Child Nutrition Act of 1966, 80
Stat. 888, 889, as amended (42 U.S.C. 1776, 1779).
Sec. 235.11 [Amended]
0
4. Amend Sec. 235.11 as follows:
0
a. In paragraph (g)(1)(i) after the words ``Bachelor's degree'', add
the words ``, master's degree, or doctorate degree''; and
0
b. In paragraph (g)(1)(iv)(A), remove the words ``Master's degree'' and
add in their place the words, ``Both a bachelor's degree and a master's
or doctorate degree''.
[[Page 6961]]
Dated: February 21, 2019.
Brandon Lipps,
Administrator, Food and Nutrition Service.
[FR Doc. 2019-03524 Filed 2-28-19; 8:45 am]
BILLING CODE 3410-30-P