[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]



 ========================================================================
 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. 
 
 ========================================================================
 

  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.

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

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