[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Proposed Rules]
[Pages 17406-17419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05624]


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

  Federal Register / Vol. 88, No. 56 / Thursday, March 23, 2023 / 
Proposed Rules  

[[Page 17406]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 245

[FNS-2022-0044]
RIN 0584-AE93


Child Nutrition Programs: Community Eligibility Provision--
Increasing Options for Schools

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This rulemaking proposes to expand access to the Community 
Eligibility Provision by lowering the minimum identified student 
percentage participation threshold from 40 percent to 25 percent, which 
would give States and schools greater flexibility to choose to invest 
non-Federal funds to offer no-cost meals to all enrolled students. As a 
result, more students, families, and schools would have an opportunity 
to experience the benefits of the Community Eligibility Provision, 
including access to meals at no cost, eliminating unpaid meal charges, 
minimizing stigma, reducing paperwork for school nutrition staff and 
families, and streamlining meal service operations. When all students 
have access to healthy school meals, meal participation tends to 
increase, and more children can experience nutritional benefits that 
fuel their learning, growth, and development. This proposed rule would 
also support State and local choices to expand the availability of free 
school meals for all through programs supported by State or local 
funding. Lowering the eligibility threshold would allow States and 
local educational agencies to optimize use of the Community Eligibility 
Provision, helping them to support school meals in a more streamlined 
manner.

DATES: Written comments on this proposed rule should be received on or 
before May 8, 2023 to receive consideration.

ADDRESSES: The Food and Nutrition Service, USDA, invites interested 
persons to submit written comments on this proposed rule. Comments may 
be submitted in writing by one of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Send comments to School Meals Policy Division, Food 
and Nutrition Service, P.O. Box 9233, Reston, VA 20195. All written 
comments submitted in response to this proposed rule will be included 
in the record and will be made available to the public. Please be 
advised that the substance of the comments and the identity of the 
individuals or entities submitting the comments will be subject to 
public disclosure. FNS will make the written comments publicly 
available on the internet via http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Michelle Frey, Branch Chief, Policy 
Design Branch, School Meals Policy Division--4th Floor, Food and 
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314, 
telephone: 703-305-2590.

SUPPLEMENTARY INFORMATION:

Background

    The Community Eligibility Provision (CEP) is an option for eligible 
schools to offer no-cost meals to all enrolled students without 
collecting household applications. Authorized by the Healthy, Hunger-
Free Kids Act of 2010 (HHFKA), CEP is a reimbursement alternative for 
eligible local educational agencies (LEAs) and schools participating in 
both the National School Lunch Program (NSLP) and School Breakfast 
Program (SBP). CEP aims to combat child hunger in high poverty areas, 
while reducing administrative burden and increasing program efficiency 
by using current, readily available data to offer school meals to all 
students at no cost. CEP eliminates the need for schools to collect 
household income applications by sharing eligibility data between 
specific Federal assistance programs; thus, reducing administrative 
burden for schools and families while intending to ensure that hunger 
is not a barrier to students' academic success.

Eligibility for CEP

    To be eligible for CEP, an individual school, group of schools, or 
school district must meet or exceed the established identified student 
percentage (ISP) threshold in the school year prior to implementing 
CEP. The ISP is the percentage of enrolled students who are certified 
for free school meals without submitting a household application, such 
as those directly certified through Federal benefits programs like the 
Supplemental Nutrition Assistance Program (SNAP). For CEP, students who 
are certified for free meals without a household application are 
``identified students'' (42 U.S.C. 1759a(a)(1)(F)(i); 7 CFR 
245.9(f)(1)(ii)).\1\ The ISP is calculated by dividing the total number 
of identified students by the total number of enrolled students:
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    \1\ Identified students include students living in households 
participating in SNAP, Temporary Assistance for Needy Families, and 
Food Distribution Program on Indian Reservations. Identified 
students also include those who are homeless, migrant, runaway, in 
foster care, or enrolled in Head Start. In some States, students are 
directly certified through Medicaid direct certification 
demonstration projects. Students in States participating in the 
Medicaid direct certification demonstration projects are only 
included in the ISP if they are certified for free meals (not 
reduced price meals).
[GRAPHIC] [TIFF OMITTED] TP23MR23.000


[[Page 17407]]


    Under current regulations, the minimum ISP is 40 percent; 
therefore, to be eligible for CEP, an individual school, group of 
schools, or school district must have an ISP greater than, or equal to, 
40 percent (ISP >=40 percent) as of April 1 of the school year prior to 
implementing CEP (7 CFR 245.9(f)(3)(i)).

Current Requirements

    The ISP determines eligibility to participate in CEP and is also 
the basis of Federal reimbursements for meals served to students in CEP 
schools. A 1.6 ``multiplier'' is established by statute. The ISP is 
multiplied by 1.6 to calculate the percentage of meals reimbursed at 
the Federal free rate (7 CFR 245.9(f)(4)(vi)). Any remaining meals, up 
to 100 percent, are reimbursed at the Federal paid rate.\2\
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    \2\ CEP schools only claim meals at the free and paid 
reimbursement rates. CEP schools do not claim reduced price meals.

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% Meals reimbursed at Federal free rate = ISP x 1.6

% Meals reimbursed at Federal paid rate = 100--% meals reimbursed at 
Federal free rate CEP requires that LEAs must pay, with non-Federal 
funds, any costs of offering free meals to all students that exceed the 
Federal assistance provided. Examples of non-Federal funding sources 
include, but are not limited to, funds provided by the State agency 
that exceed revenue matching requirements outlined in section 7 of the 
National School Lunch Act (NSLA) and at 7 CFR 210.17, profits from 
[agrave] la carte sales, and cash donations. If all operating costs are 
covered by the Federal assistance provided, then LEAs are not required 
to contribute non-Federal funds (7 CFR 245.9(f)(4)(vii)).

Statutory Requirements Regarding the ISP Threshold and CEP Multiplier

    Pursuant to 42 U.S.C. 1759a(a)(1)(F)(ix), the U.S. Department of 
Agriculture (USDA) gradually phased in CEP from school year (SY) 2011-
2012 to SY 2013-2014, before it was nationally implemented in SY 2014-
2015. During this phase-in period, USDA was required by statute to set 
the CEP multiplier at 1.6 (42 U.S.C. 1759a(a)(1)(F)(vii)(I)) and the 
ISP threshold for eligibility at 40 percent (42 U.S.C. 
1759a(a)(1)(F)(viii)(I)). Starting July 1, 2014, when CEP was fully 
implemented, Congress gave the Secretary discretion to use a multiplier 
between 1.3 and 1.6 (42 U.S.C. 1759a(a)(1)(F)(vii)(II)) and an ISP 
threshold that is less than 40 percent (42 U.S.C. 
1759a(a)(1)(F)(viii)(II)).

Regulatory History & National Implementation

    On November 4, 2013, USDA published a proposed rule in the Federal 
Register seeking to add CEP to regulations governing the determination 
of eligibility for free and reduced price meals and free milk in 
schools, consistent with amendments made to the NSLA by the HHFKA (78 
FR 65890). USDA drew on a range of information to develop the proposed 
rule, including the statutory language in the NSLA and knowledge gained 
through the phased-in implementation of CEP in SYs 2011-2012 through 
2013-2014.
    Beginning July 1, 2014, pursuant to 42 U.S.C. 1759a(a)(1)(F)(x)(I), 
CEP became available nationwide to all eligible schools at the 
discretion of their LEAs. Many State and local officials throughout the 
country enthusiastically embraced the new provision, resulting in 
significant CEP expansion. In SY 2014-2015, almost 14,000 schools in 
2,190 LEAs elected CEP, resulting in about 6.4 million students with 
access to free meals each school day.\3\ About two-thirds of the 75 
largest highly eligible school districts identified by USDA elected CEP 
for at least some of their schools in SY 2014-2015, while about half of 
electing LEAs had enrollments of 500 or fewer students.\4\ 
Significantly, these data indicated that a broad range of LEAs chose to 
elect CEP. During this time, USDA continued to provide extensive 
guidance and technical assistance through conference calls, public 
speaking engagements, webinars, guidance publications, in-person 
visits, collaboration with partner organizations, and focused contact 
with States and LEAs.
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    \3\ Center on Budget and Policy Priorities. (2015). Take Up of 
Community Eligibility This School Year. Available at https://www.cbpp.org/research/take-up-of-community-eligibility-this-school-year.
    \4\ Ibid. The term ``highly eligible'' refers to schools and 
districts with an ISP greater than or equal to 60 percent.
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    On July 29, 2016, USDA published the final rule, National School 
Lunch Program and School Breakfast Program: Eliminating Applications 
through Community Eligibility as Required by the Healthy, Hunger-Free 
Kids Act of 2010 [81 FR 50194, July 29, 2016], which codified CEP 
requirements that were implemented through statute and policy guidance, 
at 7 CFR 245.6 and 245.9(f). The final rule codified CEP requirements 
in Federal regulation, including the following:
     Eliminated the collection of school meal applications in 
CEP schools;
     Allowed eligible LEAs/schools to offer all students no-
cost lunches and breakfasts for four successive school years;
     Limited CEP participation to LEAs and schools that have an 
ISP of at least 40 percent;
     Established 1.6 as the multiplier to be used to determine 
CEP claiming percentages for an entire 4-year CEP cycle;
     Required LEAs to pay, with non-Federal funds, the 
difference (if any) between the cost of serving meals at no cost to all 
students and the Federal assistance provided; and,
     Established procedures to determine the percentage of 
meals to be claimed at the Federal free and paid rates at CEP schools.
    By codifying the CEP eligibility threshold and multiplier in the 
final rule, USDA committed to pursue any subsequent changes to the 
eligibility threshold or multiplier through the Federal regulatory 
process, including an opportunity for public comment. This gives 
stakeholders, including school districts and schools, an opportunity to 
consider changes and related impacts to the costs and benefits of 
electing CEP.

Benefits of CEP

    Since its inception, CEP has been a consistent tool to address 
childhood hunger. Requiring schools to offer both breakfast and lunch 
to participate in CEP has increased the number of LEAs implementing or 
expanding the SBP, thereby giving children greater access to 
breakfast.\5\ Studies have also shown that CEP schools experienced 
significant student participation growth in their school meal programs. 
USDA published a CEP Characteristics Study in March 2022, which 
highlighted, in depth, the benefits of CEP.\6\ This first comprehensive 
study since CEP became available nationwide compared the impact of CEP 
participation in school districts that elected CEP to similar non-
participating school districts. Overall, the study found that CEP 
participation resulted in sustained increases in student participation 
in both the NSLP and SBP.\7\ Notably, the study indicated

[[Page 17408]]

that student participation in NSLP is about 7 percent higher in CEP 
school districts compared to similar, eligible LEAs that chose not to 
adopt CEP. It also found that student participation in SBP is about 12 
percent higher in LEAs that participate in CEP.
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    \5\ Among the 347 participating LEAs that responded to the CEP 
Evaluation Implementation Web Survey, 9 percent reported 
implementing or expanding their school breakfast program due to CEP. 
U.S. Department of Agriculture. (2014). Community Eligibility 
Provision Evaluation Final Report. Available at: http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf (p. 112).
    \6\ U.S. Department of Agriculture. (2022). USDA Community 
Eligibility Provision Characteristics Study, School Year 2016-2017. 
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17.
    \7\ Among the Year 2 sample, the impact on the NSLP 
participation rates was statistically significant at five percentage 
points in the first year of CEP and six percentage points in the 
second year of CEP. This suggests that the impact of CEP lasted 
beyond the first year of implementation and actually grew by one 
percentage point from the first to second year of implementation. 
USDA Community Eligibility Provision Characteristics Study, 
Available at https://fns-prod.azureedge.us/sites/default/files/resource-files/CEPSY2016-2017.pdf.
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    While these participation increases are important because they show 
more children took advantage of SBP's and NSLP's nutritional benefits, 
increases in student participation also confer several other benefits. 
USDA's CEP Characteristics Study found that increases in student 
participation positively impacted LEAs' finances. Student participation 
increases contributed to CEP schools being significantly more likely to 
report that it was easier to balance nonprofit school nutrition 
financial accounts (i.e., break even), compared to respondents from 
non-participating schools. As a result of higher participation, schools 
may also take advantage of economies of scale both in administrative 
costs and in meal production, reducing the cost per meal. Increases in 
student participation were also associated with increased non-Federal 
revenues among study respondents: almost two-thirds of participating 
LEAs said that CEP was a factor in the increase in non-Federal revenues 
because State subsidies tied to meal counts also increased, providing 
LEAs with more non-Federal funds that can be used to support CEP.\8\
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    \8\ U.S. Department of Agriculture. (2022). USDA Community 
Eligibility Provision Characteristics Study, School Year 2016-2017. 
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17 (p. 
68).
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    A systematic review of research around free school meals for all 
students also found that free school meals, paired with strong 
nutrition standards (especially standards that promote vegetables, 
fruits, and whole grains), are positively associated with students' 
diet quality and academic performance, such as standardized math test 
scores.\9\ Furthermore, the review suggested that free school meals for 
all may resolve the issues of social stigma, a lack of information 
(e.g., households not knowing they need to apply or re-apply each 
year), challenges with applying (e.g., language or literacy barriers), 
or food insecurity of students who are not eligible for free or reduced 
price meals.\10\ Participation increases in CEP schools result in more 
students receiving the nutrition necessary to support learning.
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    \9\ Cohen JFW, Hecht AA, McLoughlin GM, Turner L, Schwartz MB. 
Universal School Meals and Associations with Student Participation, 
Attendance, Academic Performance, Diet Quality, Food Security, and 
Body Mass Index: A Systematic Review. Nutrients. 2021 Mar 
11;13(3):911. Diet quality (pp. 6-9); Academic performance (p. 10).
    \10\ Ibid, p. 33.
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    Participation in CEP is also associated with a positive impact on 
household finances. A study conducted by the National Bureau of 
Economic Research indicated households with children receiving free 
school meals through CEP saved between 5 percent and 19 percent on 
their monthly grocery bills.\11\ Researchers also observed that CEP 
exposure is associated with an almost 5 percent decline in households 
classified as food insecure.\12\
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    \11\ National Bureau of Economics. (2022). The Effect of Free 
School Meals on Household Food Purchases: Evidence from the 
Community Eligibility Provision. Available at: https://www.nber.org/papers/w29395.
    \12\ Ibid. The term ``CEP exposure'' refers to the probability 
that a household has a child attending a CEP school.
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    Another benefit of CEP is reduced administrative burden and 
increased program efficiency. CEP schools eliminate costs associated 
with school meal applications, including staff time and other resources 
dedicated to printing, distributing, collecting, processing, and 
verifying school meal applications. USDA's initial CEP study of the 
phase-in States demonstrated that CEP consistently saved time for LEA 
food service administrative staff, school nutrition professionals, and 
school administrators.\13\ The 2022 CEP Characteristics Study resulted 
in similar findings: 74 percent of participating LEAs reported a 
decreased burden on families, and 65 percent reported decreased LEA 
administrative burden.\14\ Of those reporting a decreased 
administrative burden, food service staff spent more time conducting 
other administrative tasks (73 percent), overseeing food program 
operations (69 percent), and planning meal services (56 percent).\15\
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    \13\ U.S. Department of Agriculture. (2014). Community 
Eligibility Provision Evaluation Final Report. Available at: http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf.
    \14\ U.S. Department of Agriculture. (2022). USDA Community 
Eligibility Provision Characteristics Study, School Year 2016-2017. 
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17 (p. 
43).
    \15\ Ibid, p. 44-45.
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    CEP also eliminates the problem of unpaid meal debt--debt that 
accumulates when students who pay for school meals, at either full or 
reduced price, do not have money to pay at the point of sale. In their 
School Nutrition Trends Summary Report (2019), the School Nutrition 
Association found that approximately 75% of school districts have 
outstanding school meal debt.\16\ USDA's Child Nutrition Programs 
Operations Study found that the median school food authority was owed 
approximately $1,500 total in unpaid meal charges.\17\ The 2022 CEP 
Characteristics Study showed that about 70 percent of LEAs reported the 
elimination of unpaid meal charges as a benefit of CEP.\18\
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    \16\ School Nutrition Association. (2019). School Nutrition 
Trends Report. This report is available to the public for purchase 
at http://schoolnutrition.org/2019-school-nutrition-trends-summary-report/.
    \17\ Beyler, N., Murdoch, J., & Cabili, C. (2021). Child 
Nutrition Program Operations Study II: SY 2017-18. Prepared by 2M 
Research. Contract No. AG-3198-C-15-0008. Alexandria, VA: U.S. 
Department of Agriculture, Food and Nutrition Service, Office of 
Policy Support, Project Officer: Holly Figueroa. Available online 
at: Child Nutrition Program Operations Study, School Year 2017-18 
[bond] Food and Nutrition Service (usda.gov).
    \18\ U.S. Department of Agriculture. (2022). USDA Community 
Eligibility Provision Characteristics Study, School Year 2016-2017. 
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17 (p. 
43).
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    Another related benefit is that CEP has been found to improve 
program integrity by simplifying Program administration.\19\ Program 
integrity is essential to the effectiveness of school nutrition 
programs, and responsible stewardship of Federal taxpayer dollars. 
Schools that participate in CEP do not rely on annual household 
applications that are typically used to determine students' eligibility 
for free and reduced price meals. Instead, schools directly certify 
students through electronic data matching at the State or local level 
to establish ISPs. USDA's third Access, Participation, Eligibility, and 
Certification Study found that LEAs had a much lower error rate in 
directly certifying students--such as the ``identified students'' in 
CEP schools--than in certifying students by applications.\20\ Since the 
nationwide expansion of CEP in SY 2014-2015, many States have enhanced 
their data

[[Page 17409]]

matching systems to improve accuracy and reliability.\21\
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    \19\ U.S. Department of Agriculture. (2014). Community 
Eligibility Provision Evaluation Final Report. Available at: http://www.fns.usda.gov/sites/default/files/CEPEvaluation.pdf (p. 127).
    \20\ Milfort et al. (2021). Third Access, Participation, 
Eligibility, and Certification Study. Prepared by Westat, Inc., 
Contract No. AG-3198-K-15-0054. Alexandria, VA: U.S. Department of 
Agriculture, Food and Nutrition Service, Office of Policy Support, 
Project Officer: Conor McGovern. Available online at: https://fns-prod.azureedge.us/sites/default/files/resource-files/APECIII-Vol1.pdf (p. 8-14 through 9-3).
    \21\ The calculated national percentage of SNAP-participant 
children directly certified for free school meals was 98 percent in 
both SY 2017-18 and SY 2018-19. This is an improvement of 6 
percentage points from the direct certification performance rate in 
SY 2016-17, which was 92 percent, and an 11-percentage point 
increase since SY 2013-14. Data from Ranalli, Dennis, Templin, Joe, 
& Applebaum, Maggie (2021). Direct Certification in the National 
School Lunch Program: State Implementation Progress Research 
Summary, School Year 2017-18 and School Year 2018-19. Prepared by 
the U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support and Child Nutrition Programs, Alexandria, 
VA. Available at: https://fns-prod.azureedge.us/sites/default/files/resource-files/NSLPDirectCertification2017-1.pdf.
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    Study results show that throughout its phase-in and national 
implementation, CEP accomplishes two goals: feeding schoolchildren and 
streamlining Program administration and operations. Participating LEAs 
have been highly satisfied with CEP and are likely to continue their 
participation: USDA's 2022 CEP Characteristics Study found that most 
participating LEAs (97 percent) intended to participate in CEP the 
following school year, as did 23 percent of eligible, but non-
participating LEAs.\22\
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    \22\ U.S. Department of Agriculture. (2022). USDA Community 
Eligibility Provision Characteristics Study, School Year 2016-2017. 
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17. p. 5.
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Discussion

    As of SY 2021-2022, 74.3 percent of eligible school districts were 
participating in CEP, reaching a total of 16.2 million school children 
in 33,300 schools.\23\ Participating schools are located in all 50 
States, the District of Columbia, and Guam, ensuring that students in 
high-poverty communities throughout the country can enter their 
classrooms well-nourished and ready to learn. Through this rulemaking, 
USDA intends to provide more LEAs and schools with the option to 
participate in CEP by lowering the minimum ISP participation threshold 
from 40 percent to 25 percent.
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    \23\ Food Research & Action Center. (2022). Community 
Eligibility: The Key to Hunger-Free Schools, School Year 2021-2022. 
Available at https://frac.org/wp-content/uploads/cep-report-2022.pdf 
(p. 4).
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Rationale for Expanding CEP

    As described above, school meals have the potential to positively 
impact children's health and academic outcomes. Providing meals at no 
cost can increase student participation and improve household finances 
and household food security. Electing CEP reduces administrative burden 
for schools, providing more time to focus on meal quality and other 
aspects of administering the Programs. To date, only LEAs, groups of 
schools and schools with ISPs of at least 40 percent have been able to 
experience the benefits of CEP.
    During the CEP phase-in period, USDA was required to set the ISP 
threshold at 40 percent (42 U.S.C. 1759a(a)(1)(F)(viii)(I)). In the 
early years of nationwide CEP availability, State agencies and LEAs 
were concerned about the impact of CEP on NSLP and SBP participation 
and school finances. As a practical response to support financial 
viability, USDA established the CEP participation threshold at 40 
percent.\24\ In response to the 2013 rule that proposed establishing 
the 40 percent threshold, USDA received public comments that supported 
making CEP available to all schools, instead of limiting CEP to schools 
with ISPs of at least 40 percent. Despite supportive comments, USDA 
maintained the 40 percent threshold in the final rule to support the 
financial health of nonprofit school nutrition accounts. Now that CEP 
has been available for almost a decade, States and schools are 
generally more familiar and comfortable with how CEP works, mitigating 
some of the concerns that may have prevented earlier CEP elections. 
USDA has also published guidance and tools to help LEAs decide if CEP 
is a viable option, including guidance developed collaboratively with 
the U.S. Department of Education and the Federal Communications 
Commission around Title I and E-Rate funding, respectively.\25\ To 
assist LEAs with making sound financial decisions related to CEP 
participation, the USDA created an online resource, the CEP Resource 
Center, which provides extensive guidance and technical assistance to 
State agencies and LEAs, including practical tools and best practices 
to help LEAs estimate the Federal reimbursement under CEP.\26\ In 
addition, USDA worked in cooperation with State agencies and anti-
hunger partners to share resources, success stories and best practices 
for making CEP work at all ISP levels. These collective efforts have 
positioned LEAs to make informed decisions about CEP participation. 
Therefore, the concerns that contributed to USDA's decision to 
establish the ISP threshold at 40 percent have been alleviated. LEAs 
should now be well-situated to understand the implications of electing 
CEP and, if they are able to manage CEP financially, should be able to 
experience the benefits of CEP for their schools, students, and 
families.
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    \24\ As described earlier, LEAs with lower ISPs may need 
reliable sources of non-Federal funding to support their nonprofit 
school nutrition accounts, and to make the account whole if 
operational costs exceed the Federal assistance provided.
    \25\ Title I Guidance for CEP schools is available at: https://www.fns.usda.gov/cn/updated-title-i-guidance-schools-electing-community-eligibility. E-Rate guidance for CEP schools is available 
at: https://www.fns.usda.gov/cn/updated-e-rate-guidance-schools-electing-community-eligibility.
    \26\ U.S. Department of Agriculture. Community Eligibility 
Resource Center. Available at https://www.fns.usda.gov/cn/community-eligibility-provision.
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    In addition to giving eligible LEAs the choice to decide what is 
best for their schools, many States, schools, and communities 
experienced the benefits of healthy school meals for all during SYs 
2020-2021 and 2021-2022 due to the COVID-19 pandemic. For these two 
school years during the COVID-19 pandemic, USDA provided waivers 
authorized under the Families First Coronavirus Response Act and the 
Continuing Appropriations Act, 2021 and Other Extensions Act that 
allowed schools across the country to offer free meals to all 
students.\27\ By offering meals to all students at no cost during the 
pandemic, many schools experienced the benefits associated with free 
school meals for all, including increased student participation and 
positive impacts on student health, well-being, and food and nutrition 
security. Nationwide waivers permitting schools to offer free school 
meals to all students via the Summer Food Service Program (SFSP) and 
Seamless Summer Option (SSO) demonstrated the benefits of offering all 
students free meals and, as a result, there is renewed interest in 
CEP.\28\
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    \27\ On March 18, 2020, H.R. 6201--Families First Coronavirus 
Response Act, became Public Law Number 116-127. The bill gave USDA 
authority to issue nationwide child nutrition waivers to ensure 
access to meals through the Child Nutrition Programs as communities 
responded to the COVID-19 pandemic. The bill also gave USDA 
authority to waive school meal pattern requirements for the child 
nutrition programs in response to a disruption to the food supply as 
a result of the COVID-19 pandemic. More information on the bill is 
available at: https://www.congress.gov/bill/116th-congress/house-bill/6201/text/eh.
    \28\ States could opt-in to waivers that allowed schools to 
offer no-cost meals to all students via the SFSP or SSO in SY 2020-
21, and via the SSO in SY 2021-22. For additional information, see 
COVID-19 Child Nutrition Responses #56: Nationwide Waiver to Allow 
Summer Food Service Program and Seamless Summer Option Operations 
through December 2020 (available at: https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-56), COVID-19 Child Nutrition 
Response #59: Nationwide Waiver to Allow Summer Food Service Program 
and Seamless Summer Option Operations through School Year 2020-
2021--Extension (available at: https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-59), and COVID-19 Child Nutrition Response 
#85: Nationwide Waiver to Allow the Seamless Summer Option through 
School Year 2021-22 (available at: https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-85). A complete list of COVID-19-
related waivers issued by State is available at: https://www.fns.usda.gov/disaster/pandemic/covid-19/cn-waivers-flexibilities.

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[[Page 17410]]

    Census Bureau data show food insecurity surged during the COVID-19 
pandemic.\29\ However, in 2021, food insecurity among households with 
children dropped, likely due--at least in part--to the widespread 
availability of no-cost meals available to children via schools 
authorized by Congress during the COVID-19 pandemic. Despite this 
decrease, five million children lived in food insecure households, 
which have been shown to rely on meals served via schools for their 
primary source of nutrition.30 31 The COVID-19 pandemic 
provided an unintended experiment that highlighted the critical role 
that schools play in providing food and nutrition security to millions 
of children.
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    \29\ Brynne Keith-Jennings, Catlin Nchako, and Joseph Llobrera, 
``Number of Families Struggling to Afford Food Rose Steeply in 
Pandemic and Remains High, Especially Among Children and Households 
of Color,'' CBPP, April 27, 2021, https://www.cbpp.org/research/food-assistance/number-of-families-struggling-to-afford-food-rose-steeply-in-pandemic-and.
    \30\ Food insecurity may have improved for households with 
children in 2021 because of the expansion of Federal nutrition 
assistance programs, such as widespread availability of no-cost 
meals and other forms of assistance targeting households with 
children, such as the expanded Child Tax Credit or Pandemic 
Electronic Benefits Transfer (P-EBT) program. Household Food 
Security in the United States in 2021, by Alisha Coleman-Jensen, 
Matthew P. Rabbitt, Christian A. Gregory, and Anita Singh, ERS, 
September 2022 (p. 9).
    \31\ Smith, T.A. Do School Food Programs Improve Child Dietary 
Quality? Am. J. Agric. Econ. 2016, 99, 339-356. Available at: 
https://onlinelibrary.wiley.com/doi/full/10.1093/ajae/aaw091.
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    During SY 2022-2023, schools returned to operating standard school 
meals programs as the flexibilities that Congress provided to offer 
free meals expired. This means that schools that were not participating 
in a special provision, like CEP, were required to claim meals by 
eligibility category (i.e., free, reduced price and paid) and charge 
students for meals. However, a growing number of States are investing 
in healthy school meals for all: most are maximizing LEAs' use of CEP 
as a mechanism to offer no-cost meals to all students, and are pairing 
CEP with State initiatives to expand access to free meals to all 
students.\32\ Many States offering healthy school meals for all are 
easing LEAs' financial concerns by ensuring that funding is available 
to cover any gaps between operational costs and Federal assistance.\33\ 
This additional funding helps make CEP financially viable for schools. 
Lowering the CEP minimum eligibility threshold would provide States and 
LEAs with greater flexibility to combine CEP with State initiatives to 
simplify Program administration, reduce burden, and offer meals to all 
students at no charge.
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    \32\ National Conference of State Legislatures. (2022). States 
Step in as End of Free School Meal Waivers Looms. Available at 
https://www.ncsl.org/research/human-services/states-step-in-as-end-of-free-school-meal-waivers-looms-magazine2022.aspx.
    \33\ Schools must use non-Federal funding to cover food service 
costs that exceed the Federal assistance provided. As an example, if 
an LEA's ISP is 40, the LEA would claim 64 percent of meals at the 
free rate (40 x 1.6 = 64) and 36 percent of meals at the paid rate. 
If the cost of providing all meals at no cost is greater than the 
Federal assistance provided, the LEA must contribute non-federal 
funding to make up the difference.
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Why USDA Is Proposing a 25 Percent ISP Threshold

    As previously discussed, USDA has the discretion to establish an 
ISP threshold that is lower than 40 percent. USDA is proposing to 
establish a 25 percent ISP threshold for LEAs, schools, or groups of 
schools to elect CEP. This threshold would provide the opportunity for 
more LEAs located in high poverty areas to elect CEP. The lower 
threshold will allow these LEAs, especially those with non-Federal 
funds available to support school meals, to consider CEP and its 
numerous benefits.
    To determine an appropriate threshold, USDA considered operational 
factors, including characteristics of LEAs currently eligible and near 
eligible to elect CEP, and analyzed the composition of the ISP and the 
proportion of free and reduced price students at varying ISP levels. 
Based on these analyses, at a 25 percent ISP, USDA estimates that at 
least 45 percent of students would be eligible for free or reduced 
price meals, if household income applications were collected. This 45 
percent reflects both directly certified students and students eligible 
via household income applications and could be higher if LEAs certify 
more students for free or reduced price benefits via applications 
versus direct certification.
    A 25 percent CEP eligibility threshold also aligns operationally 
with the minimum threshold for which severe need payments are provided 
under the Child Nutrition Act to incentivize schools to participate in 
the SBP. Severe need payments are provided to help schools that serve 
high proportions of children from low-income households to start and 
maintain school breakfast programs. Under CEP, a minimum ISP of 25 
percent results in 40 percent of meals reimbursed at the free rate (25 
x 1.6 = 40). Schools where at least 40 percent of the lunches served to 
students in the second preceding school year were are free or reduced 
price qualify as severe need schools and receive this additional 
reimbursement (42 U.S.C. 1773(d); 7 CFR 220.9(d)). CEP and severe need 
payments strive to benefit schools that serve high poverty areas. Under 
the current ISP threshold of 40 percent, individually eligible CEP 
schools receive qualify for the additional severe need payments.\34\ 
This would continue under the proposed 25 percent ISP threshold. These 
schools with an ISP of 25 percent are already likely receiving severe 
need payments based on USDA's analysis that schools with an ISP of 25 
percent are estimated to have a free and reduced price percentage of at 
least 45 percent. Aligning the CEP threshold with the severe need 
payments threshold simplifies this determination and further supports 
the SBP through CEP.\35\
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    \34\ ``Individually eligible'' means a school's individual ISP 
is 40 percent or higher.
    \35\ More than 80 percent of total School Breakfast Program 
breakfasts served receive severe need payments, based on FNS 
Administrative data from the National Data Bank.
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    In addition, under current statutory requirements, LEAs and schools 
that are nearly eligible to elect CEP (i.e., schools with ISPs of at 
least 30 percent, but less than 40 percent) must be annually notified 
of their near eligibility (42 U.S.C. 1759a(a)(1)(F)(x)(II); 7 CFR 
245.9(f)(5) and (f)(6)). This annual notification intends to prompt 
nearly eligible LEAs and schools to consider CEP and whether it is 
beneficial to take actions (e.g., increase direct certification 
matching) to gain eligibility to elect CEP. A 25 percent threshold 
increases options for LEAs and schools that are currently near 
eligible, so they have more opportunity to consider electing CEP.
    A 25 percent threshold allows CEP to benefit communities with high 
proportions of children eligible for free or reduced price meals. For 
schools with similar identified student populations, especially those 
with non-Federal funds available to support school meals, CEP may be 
financially viable and offer significant student health, operational, 
and administrative benefits. Non-CEP schools that serve high 
proportions of low-income children are expending already-constrained 
resources to collect and process school meal applications to ensure 
low-income students have access to free or reduced price meals. 
Lowering the CEP threshold to 25 percent provides an opportunity for 
more LEAs with high proportions of low-income students to capitalize on 
CEP's

[[Page 17411]]

administrative and operational benefits, while maintaining CEP's intent 
to provide all students in high poverty areas with healthy, free meals.

What does a lower CEP threshold mean for schools? Considerations for 
Electing CEP

    Participating in CEP is a voluntary decision made by LEAs based on 
their unique student populations. LEA decisionmakers must consider 
student health, educational, administrative, and financial factors when 
deciding to elect CEP. USDA's CEP studies found that financial concerns 
were the most significant barrier to CEP participation for LEAs with 
lower ISPs.\36\
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    \36\ USDA's Community Eligibility Provision Characteristics 
Study, School Year 2016-2017 available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17 defined LEAs with 
``lower ISPs'' as LEAs with ISPs at the lower end of CEP 
eligibility: between 40 and 50 percent. USDA assumes that, if the 
eligibility threshold was lowered to 25 percent, eligible LEAs with 
lower ISPs (i.e., between 25 and 40 percent) would have similar 
financial concerns.
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    Making CEP work at a lower ISP requires careful consideration. A 
school participating with a 25 percent ISP would receive the Federal 
free reimbursement for 40 percent of student meals served (25 x 1.6 = 
40); the remaining 60 percent of student meals served would be 
reimbursed at the lower, paid rate. Eligible schools must assess their 
ability to cover operating costs with Federal assistance and, if 
necessary, other non-Federal funds. Schools with lower ISPs are 
strongly encouraged to explore CEP with prudence: for example, conduct 
a financial analysis to determine if meals can be offered at no charge 
to all students while, considering the loss of student payments as a 
revenue stream, maintaining the financial health of the school 
nutrition department's budget. In addition, conducting robust data 
matching is critical to support CEP implementation. To optimize CEP's 
reach and impact, States and school districts must work together to 
ensure that data matching systems find all identified students, so a 
school's ISP accurately reflects its student population. Lastly, LEAs 
and schools should consider how any data loss from school meal 
applications may impact other funding levels outside of the school meal 
programs. As previously stated, USDA has worked closely with the U.S. 
Department of Education and the Federal Communications Commission 
around Title I and E-Rate funding, respectively.\37\ However, there may 
be additional impacts that LEAs and schools need to consider.
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    \37\ Title I Guidance for CEP schools is available at: https://www.fns.usda.gov/cn/updated-title-i-guidance-schools-electing-community-eligibility. E-Rate guidance for CEP schools is available 
at: https://www.fns.usda.gov/cn/updated-e-rate-guidance-schools-electing-community-eligibility.
---------------------------------------------------------------------------

    If CEP is financially viable, LEAs with lower ISPs should strongly 
consider electing CEP to experience the administrative, operational, 
and health benefits it confers to students, families, schools, and 
school nutrition departments.

Conclusion

    This rulemaking proposes to lower the CEP eligibility threshold 
from 40 percent to 25 percent, and make related, conforming changes to 
the CEP regulatory text at 7 CFR 245.9(f). Electing CEP is a LEA-level 
decision, not a requirement, so local schools and communities have 
discretion to decide if electing CEP is beneficial. Through this 
proposed action, USDA aims to expand CEP's nutritional, operational, 
and administrative benefits to more schools serving low-income students 
in high poverty areas, which has the potential to positively impact 
students, low-income families, schools, and school nutrition 
departments. In addition, a lower threshold would support the growing 
number of States that are choosing to invest their own funds to provide 
free school meals to all students, through maximizing LEAs' use of CEP 
in combination with State-specific initiatives.

Proposed Regulatory Changes

Minimum ISP

Current Requirement
    Participating in CEP is a voluntary decision made by LEAs based on 
their unique student populations. To be eligible for CEP under current 
regulations at 7 CFR 245.9(f), an LEA, group of schools, or school 
must:
     Ensure that at least 40 percent of enrolled students are 
identified students;
     Participate in both the NSLP and SBP; and
     Offer lunches and breakfasts to all enrolled students at 
no charge.
    Section 11(a)(1)(F)(iii) of the NSLA and program regulations at 7 
CFR 245.9(f)(3)(i) require the ISP to be established using the number 
of identified students and the number of total enrolled students as of 
April 1 of the prior school year. Through CEP's grouping mechanism,\38\ 
LEAs have discretion to elect CEP at schools with an ISP lower than 40 
percent as long as the group's aggregate ISP meets the 40 percent 
threshold. The claiming percentage established for an LEA, group of 
schools, or an individual school is valid for a period of up to four 
school years. If the ISP increases during the 4-year cycle, a new cycle 
can be started using a new ISP at any time.
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    \38\ LEAs may ``group'' schools within an LEA to participate in 
CEP as a single entity with a shared ISP. The ISP for a group of 
schools is calculated by dividing the sum of the identified students 
for the entire group of schools by the sum of the total student 
enrollment for the entire group of schools.
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Proposed Change
    This proposed rule would amend 7 CFR 245.9(f)(3)(i) to require a 
LEA, group of schools, or school to have an ISP of at least 25 percent, 
as of April 1 of the school year prior to participating in CEP. 
Individual schools participating in CEP as part of a group would be 
permitted to have an ISP lower than 25 percent, provided that the 
group's aggregate ISP is at least 25 percent.

Grace Year

Current Requirement
    Section 11(a)(1)(F)(v)(I) of the NSLA requires schools and LEAs in 
the fourth year of a 4-year CEP cycle interested in continuing 
participation in CEP to calculate a new ISP reflective of April 1 of 
the cycle's fourth year to: (1) elect a new 4-year CEP cycle with a new 
ISP; and (2) meet the following school year's publication and 
notification requirements as outlined at 7 CFR 245.9(f)(5). If an LEA 
determines that a new 4-year cycle may not be immediately elected 
because its ISP is less than the required threshold, but no more than 
10 percentage points lower, then the LEA may elect to participate in 
CEP for an additional (fifth) year, or ``grace year'' (Section 
11(a)(1)(F)(v) of the NSLA and 7 CFR 245.9(f)(4)(ix)). This additional 
year gives CEP LEAs an opportunity to increase their ISPs (e.g., via 
improved direct certification) to begin a new 4-year CEP cycle. If the 
ISP as of April 1 of the grace year does not meet the minimum ISP 
requirement, the LEA must return to standard counting and claiming, or 
enroll in another special provision option for the following school 
year. The Federal reimbursement in the grace year is based on the ISP 
as of April 1 in the fourth year of the CEP cycle multiplied by 1.6.
Proposed Change
    This proposed rule would amend 7 CFR 245.9(f)(4)(ix), the 
regulations governing grace years, to conform with the proposed 25 
percent ISP threshold in 7 CFR 245.9(f)(3), allowing an LEA, group of 
schools, or school with an ISP of less than 25 percent but equal to or 
greater than 15 percent (as of April 1 of

[[Page 17412]]

the fourth year of a CEP cycle) to continue using CEP for a grace year. 
This rulemaking proposes only to change the numbers (e.g., 40 percent 
to 25 percent, 30 percent to 15 percent) consistent with the proposed 
lower threshold; no additional substantive changes are proposed by this 
rulemaking.

Identification and Notification of Potential CEP LEAs and Schools

Current Requirement
    Section 11(a)(1)(F)(x)(II) of the NSLA, as implemented by 7 CFR 
245.9(f)(5) and (6), requires that States publish, annually by May 1, 
lists of LEAs and schools eligible and nearly eligible to elect CEP for 
the next school year. Eligible schools have an ISP that meets the 
required minimum threshold--currently 40 percent--and nearly eligible 
schools have an ISP no more than 10 percentage points lower than the 
minimum required threshold.
    To meet this requirement, States must notify LEAs of district wide 
eligibility, and LEAs must notify State agencies of school-level 
eligibility by April 15 each year. Requiring this exchange of 
information by April 15 allows States to meet the May 1 deadline, by 
which States have to publish the lists of eligible and nearly eligible 
schools on their public websites. States and LEAs may share the 
required information prior to the April 15 deadline.
Proposed Change
    This rulemaking proposes the following changes to the 
identification requirements to conform with the proposed 25 percent ISP 
threshold in 7 CFR 245.9(f)(3):
     At 7 CFR 245.9(f)(5)(i), which requires LEAs to submit to 
the State agency no later than April 15 of each school year a list of 
schools that are eligible to elect CEP, the eligibility threshold of 
``at least 40 percent'' would change to a threshold of ``at least 25 
percent'';
     At 7 CFR 245.9(f)(5)(ii), which requires LEAs to submit to 
the State agency no later than April 15 of each school year a list of 
schools that are nearly eligible to elect CEP, the eligibility 
threshold of ``less than 40 percent but greater than or equal to 30 
percent'' would change to a threshold of ``less than 25 percent but 
greater than or equal to 15 percent''; and
     At 7 CFR 245.9(f)(5)(iii), which requires LEAs to submit 
to the State agency no later than April 15 of each school year a list 
of schools currently in year 4 of the CEP cycle and eligible for a 
grace year, the eligibility threshold of ``less than 40 percent but 
greater than or equal to 30 percent'' would change to a threshold of 
``less than 25 percent but greater than or equal to 15 percent.''
    Similarly, this rulemaking proposes the following conforming 
changes to the State agency notification requirements:
     At 7 CFR 245.9(f)(6)(i), which requires the State agency 
to notify LEAs that are eligible to participate in CEP district wide of 
their eligibility to elect CEP in the subsequent school year, the 
estimated cash assistance the LEA would receive, and the State-specific 
procedures to participate in CEP, the eligibility threshold of ``at 
least 40 percent'' would change to a threshold of ``at least 25 
percent.''
     At 7 CFR 245.9(f)(6)(ii), which requires the State agency 
to notify LEAs that they may be eligible to participate in CEP in the 
subsequent year if they increase their ISP to meet the eligibility 
requirements as of April 1, the eligibility threshold of ``less than 40 
percent district wide but greater than or equal to 30 percent'' would 
change to a threshold of ``less than 25 percent district wide but 
greater than or equal to 15 percent''; and
     At 7 CFR 245.9(f)(6)(iv), which requires the State agency 
to notify LEAs currently in year 4 of their grace year eligibility, the 
eligibility threshold of ``less than 40 percent but greater than or 
equal to 30 percent'' would change to a threshold of ``less than 25 
percent but greater than or equal to 15 percent.''
    This rulemaking proposes only to change the numbers (e.g., 40 
percent to 25 percent, 30 percent to 15 percent) consistent with the 
proposed lower threshold; no additional substantive changes are 
proposed by this rulemaking.

Public Notification Requirements

Current Requirement
    Section 11(a)(1)(F)(x)(III) of the NSLA, as implemented by 7 CFR 
245.9(f)(7), requires, annually by May 1, State agencies to submit to 
USDA lists of LEAs and schools eligible to elect CEP. State agencies 
are required to publish lists of eligible and nearly eligible LEAs and 
schools on their websites in a readily accessible format. Eligible 
schools have an ISP that meets the minimum required threshold, and 
nearly eligible schools have an ISP no more than 10 percentage points 
lower than the minimum required threshold.
Proposed Change
    This proposed rule would amend the following public notification 
requirements to conform with the proposed 25 percent ISP threshold in 7 
CFR 245.9(f)(3):
     At 7 CFR 245.9(f)(7)(i), which requires the State agency 
to make readily accessible on its website eligible and near eligible 
schools and schools currently in year 4 of the CEP cycle, the 
eligibility threshold of ``at least 40 percent'' would change to ``at 
least 25 percent.'' In the same paragraph, ``less than 40 percent but 
greater than or equal to 30 percent'' would change to a threshold of 
``less than 25 percent but greater than or equal to 15 percent.''
     At 7 CFR 245.9(f)(7)(ii), which requires the State agency 
to make readily accessible on its website eligible and near eligible 
LEAs and LEAs currently in year 4, the eligibility threshold of ``at 
least 40 percent district wide'' would change to a threshold of ``at 
least 25 percent district wide,'' and the eligibility threshold of 
``less than 40 percent district wide but greater than or equal to 30 
percent'' would change to a threshold of ``less than 25 percent 
district wide but greater than or equal to 15 percent.''
    This rulemaking proposes only to change the numbers (e.g., 40 
percent to 25 percent, 30 percent to 15 percent) consistent with the 
proposed lower threshold; no additional substantive changes are 
proposed by this rulemaking.

Public Comments Requested

    USDA solicits public comments on the proposed change to lower the 
CEP minimum ISP participation threshold to 25 percent. USDA also seeks 
public comments on the following questions:
    (1) To what extent are LEAs that would be newly eligible under this 
proposed rule expected to elect CEP?
    (2) What sources of non-Federal funds are available to support LEAs 
electing CEP at lower ISPs?
    (3) In a typical year, how much time do LEAs spend on 
administrative duties that may be eliminated by electing CEP (e.g., 
processing applications, managing unpaid meal charges, conducting 
verification)? What administrative activities are included in that 
estimate?
    (4) To what extent are administrative cost savings a factor in 
determining whether to elect CEP?
    (5) How do State policies related to offering free school meals for 
all students influence the likelihood of CEP election among newly 
eligible LEAs?

Procedural Matters

Executive Orders 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

[[Page 17413]]

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 proposed rule has been 
determined to be not significant and was not reviewed by the Office of 
Management and Budget (OMB) in conformance with Executive Order 12866.

Regulatory Impact Analysis

    This proposed 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 proposed rule would not have a significant 
impact on a substantial number of small entities. The provisions of 
this proposed rule are intended to reflect the operational needs of 
LEAs of all sizes. No specific additional burdens are placed on small 
LEAs seeking to operate CEP. USDA's 2022 CEP Characteristics Study 
found that 36 percent of LEAs participating in CEP in SY 2016-17 were 
single-school LEAs; 32 percent of participating LEAs were in rural 
areas; and 83 percent served fewer than 5,000 students.\39\ For smaller 
LEAs, the decision to elect CEP may be a simpler process and/or involve 
gaining approvals from fewer governing bodies. Additionally, CEP is an 
optional provision, and there is no requirement for LEAs to 
participate.
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    \39\ U.S. Department of Agriculture. (2022). USDA Community 
Eligibility Provision Characteristics Study, School Year 2016-2017. 
OMB #0584-0612, expiration 9/30/2019. Available at https://www.fns.usda.gov/cn/usda-cep-characteristics-study-sy-2016-17.
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    Currently, many small LEAs participate in CEP; in SY 2016-17, 1,939 
of the 4,263 school districts (45 percent) electing CEP had enrollments 
of 999 or less.\40\
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    \40\ Ibid.
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Unfunded Mandates Reform Act

    Title II of the Unfunded Mandate Reform Act of 1995 (UMRA) 
established requirements for Federal agencies to assess the effects of 
their regulatory actions on State, local and Tribal governments, and 
the private sector. Under section 202 of UMRA, USDA generally must 
prepare a written statement, including a cost-benefit analysis, for 
proposed and final rules with ``Federal mandates'' that may result in 
expenditures to State, local, or Tribal governments in the aggregate, 
or to the private sector, of $146 million or more (when adjusted for 
inflation; GDP deflator source: Table 1.1.9 at https://www.bea.gov/iTable) in any one year. When such a statement is needed for a rule, 
section 205 of UMRA generally requires USDA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, more cost-effective, or least burdensome alternative that 
achieves the objectives of the rule.
    This proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of URMA) for State, local and Tribal 
governments, or the private sector, of $146 million or more in any one 
year. Therefore, this proposed rule is not subject to the requirements 
of sections 202 and 205 of UMRA.

Executive Order 12372

    The NSLP and SBP are assigned Assistance Listing Numbers--NSLP 
(10.555) and SBP (10.553)--and are subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials (see 2 CFR chapter IV).\41\ Since the child nutrition 
programs are State-administered, USDA's 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 operations. This provides USDA 
with the opportunity to receive regular input from program 
administrators and contributes to the development of feasible program 
requirements.
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    \41\ Assistance listings are detailed public descriptions of 
federal programs that provide grants, loans, scholarships, 
insurance, and other types of assistance awards. More information is 
available at: https://sam.gov/content/home.
---------------------------------------------------------------------------

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 determined that this proposed rule does not have 
federalism implications. Electing CEP is a local decision, not a 
Federal mandate, and lowering the CEP eligibility threshold from 40 
percent to 25 percent does not limit State or local policymaking 
discretion. Furthermore, this proposed rule does not impose substantial 
or direct compliance costs on State and local governments. Therefore, 
under section 6(b) of the Executive Order, a Federalism summary impact 
statement is not required.

Executive Order 12988, Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is intended to have preemptive 
effect with respect to any State or local laws, regulations or policies 
which conflict with its provisions or which would otherwise impede its 
full implementation. However, FNS does not expect significant 
inconsistencies between this proposed rule and existing State or local 
regulations regarding the provision of school food service operations 
under CEP. This proposed rule would permit schools to elect CEP if 
their ISP is greater than or equal to 25 percent. Per statutory 
requirements outlined in the NSLA, State agencies operating the Federal 
school meal programs are unable to bar an eligible LEA from CEP 
participation. Additionally, States may not set an eligibility 
threshold lower than an ISP of 25 percent for participation in CEP. 
This proposed rule is not intended to have retroactive effect. Prior to 
any judicial challenge to the provisions of this proposed rule or the 
application of its provisions, all applicable administrative procedures 
must be exhausted.

Civil Rights Impact Analysis

    FNS has reviewed the proposed rule, in accordance with Departmental 
Regulation 4300-004, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts the proposed rule might have on 
participants on the basis of age, race, color, national origin, sex, 
and disability. The FNS Civil Rights Division finds that the current 
mitigation and outreach strategies outlined in the regulations and this 
Civil Rights Impact Analysis provide ample consideration to 
participants' ability to participate in the NSLP and SBP. The 
promulgation of this proposed rule would expand access to no-cost meals 
for all enrolled students at participating CEP schools by lowering

[[Page 17414]]

the minimum participation threshold. As previously outlined, the 
proposed rule is likely to impact the growing number of minority 
students and families attending public schools that face a greater risk 
of food insecurity and health disparities by providing sustained 
nutritious food and reducing families' paperwork burdens.\42\ \43\ The 
changes implemented by this proposed rule is likely to impact 
participating LEAs and SFAs by providing greater flexibility to offer 
no-cost meals to students which would further support eliminating 
unpaid meal debt, minimizing stigma, streamlining meal service 
operations, and reducing paperwork for school nutrition staff.
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    \42\ U.S. Department of Education's National Center for 
Education Statistics. (2022). Racial/Ethnic Enrollment in Public 
Schools. Available at: https://nces.ed.gov/programs/coe/indicator/cge/racial-ethnic-enrollment.
    \43\ Leveraging the White House Conference to Promote and 
Elevate Nutrition Security: The Role of the USDA Food and Nutrition 
Service (2022). Available at: https://www.usda.gov/sites/default/files/documents/wh-2022-nutrition-conference-fns-role.pdf. (p. 7).
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Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    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. FNS provides regularly 
scheduled consultation sessions as a venue for collaborative 
conversations with Tribal officials or their designees. This proposed 
rule will be discussed during the next consultation session, planned 
for Spring 2023. FNS is unaware of any current Tribal laws that could 
be in conflict with the final rule.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; 5 CFR 
1320) requires that the Office of Management and Budget (OMB) approve 
all collection of information requirements 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 rulemaking proposes to expand access to the 
Community Eligibility Provision (CEP) by lowering the minimum ISP 
participation threshold from 40 percent to 25 percent, which would give 
States and schools greater flexibility to choose to invest non-Federal 
funds to offer no-cost meals to all enrolled students. As a result, 
more students, families, and schools would have an opportunity to 
experience the benefits of CEP, including access to meals at no cost, 
eliminating unpaid meal charges, minimizing stigma, reducing paperwork 
for school nutrition staff and families, and streamlining meal service 
operations.
    In accordance with the Paperwork Reduction Act of 1995, this 
proposed rule would revise existing information collection 
requirements, which are subject to review and approval by OMB. These 
existing requirements are currently approved under OMB Control Number 
0584-0026, 7 CFR part 245--Determining Eligibility for Free & Reduced 
Price Meals and Free Milk in Schools, expiration date July 31, 2023. 
Revisions to the currently approved information collection requirements 
will result in a decrease in burden on State and local program 
operators as well as participating households. FNS is submitting for 
public comment the changes in the information collection burden that 
would result from this proposed rule. Because the approval for OMB 
Control Number 0584-0026 expires on July 31, 2023, to ensure that the 
review of this proposed rule does not interfere with this renewal, FNS 
is requesting a new OMB Control Number for the existing information 
requirements which are impacted by this proposed rule. The proposals 
outlined in this rulemaking will therefore initially be shown as 
increases to the information collection inventory. After OMB has 
approved the information collection requirements submitted in 
conjunction with the final rule and after the renewal is completed, FNS 
will merge these requirements and their burden into OMB Control Number 
0584-0026. At this point, the decrease in burden noted above will be 
fully captured in the burden for the collection.
    Comments on this proposed rule and changes in the information 
collection burden must be received by May 8, 2023.
    Comments may be sent to: School Meals Policy Division, Food and 
Nutrition Service, P.O. Box 9233, Reston, VA 20195. Comments will also 
be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting 
comments electronically.
    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the collection of information on those who 
are to respond, including use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    All responses to this document will be summarized and included in 
the request for OMB approval. All comments will also become a matter of 
public record.
    Title: Community Eligibility Provision: Increasing Options for 
Schools.
    Form Number: None.
    OMB Control Number: 0584-NEW.
    Expiration Date: Not Yet Determined.
    Type of Request: New Collection.
    Abstract: This is a new information collection that revises the 
existing information collection request approved under OMB Control 
Number 0584-0026. Below is a summary of the changes in the rule and the 
accompanying reporting and recordkeeping requirements that will impact 
the burden that program requirements have on State administering 
agencies, local education agencies (LEAs), and participating 
households.
    Participating in the CEP is a voluntary decision made by local 
school districts. To be eligible for CEP under current program 
regulations, an LEA, group of schools, or school must ensure that at 
least 40 percent of enrolled students are identified students, 
participate in both the National School Lunch Program and the School 
Breakfast Program, and serve lunches and breakfasts to all enrolled 
students at no charge.
    Identified students are certified for free school meals without 
submitting a household application, such as those directly certified 
through the Supplemental Nutrition Assistance Program (SNAP). This 
proposed rule will expand access to CEP by lowering the ISP. This will 
provide more schools with an additional option for offering no-cost 
meals to students without requiring households to submit applications 
for free or reduced price meals.
    This proposed rule would amend 7 CFR 245.9(f)(3)(i) to require a 
LEA,

[[Page 17415]]

group of schools, or school to have an ISP of at least 25 percent, as 
of April 1 of the school year prior to participating in CEP. Individual 
schools participating in CEP as part of a group would be permitted to 
have an ISP lower than 25 percent, provided that the group's aggregate 
ISP is at least 25 percent.

Reporting

State Agencies

    The changes proposed in this rulemaking will impact the existing 
reporting requirement currently approved under OMB Control Number 0584-
0026 and found at 7 CFR 245.9(f)(6) that State agencies must notify 
LEAs of their CEP status. USDA expects that the number of LEAs that 
must be notified will increase by 4,628 based on the proposed changes. 
USDA estimates the 54 State agency respondents will be required to 
notify approximately 86 additional LEAs each year, and that it takes 
approximately three minutes (.050 hours) to complete this reporting 
requirement for each record. The proposed reporting requirement adds a 
total of 231 annual burden hours and 4,628 responses into the new 
information collection request. Once this new collection is merged into 
OMB Control Number 0584-0026, USDA expects that an additional 231 hours 
and 4,628 responses will be added to the collection.

LEAs

    The changes proposed in this rulemaking will impact the existing 
reporting requirements currently approved under OMB Control Number 
0584-0026 for LEAs.
    USDA estimates that 337 additional LEAs will elect CEP and will be 
required to fulfill the reporting requirement at 7 CFR 245.9(f)(4)(i) 
that LEAs submit to the State agency documentation of an acceptable ISP 
of the LEA/school electing the provision currently approved under OMB 
Control Number 0584-0026. USDA estimates that the 337 LEA respondents 
will be required to submit ISP data when electing CEP each year and 
that it takes approximately 15 minutes (.25 hours) to complete this 
reporting requirement for each record. The proposed reporting 
requirement adds a total of 84 annual burden hours and 337 responses 
into the new information collection request. Once this new collection 
is merged into OMB Control Number 0584-0026, USDA expects that an 
additional 84 hours and 337 responses will be added to the collection.
    USDA expects that as a result of the proposed changes, more LEAs 
electing CEP will be electing CEP for all schools in the LEA, or 
district wide. This will result in a decrease in the number of LEAs 
required to process free and reduced price meal applications and 
conduct verification. USDA estimates 337 fewer LEAs than currently 
approved under OMB Control Number 0584-0026 will be required to fulfill 
the requirement at 7 CFR 245.6(c)(6)(i) that LEAs notify households of 
approval of meal benefit applications. USDA estimates that 15,003 LEA 
respondents will be required to notify 219 households of approval of 
meal benefit applications each year and that it takes approximately one 
minute (.02 hours) to complete this reporting requirement for each 
record. The proposed reporting requirement adds a total of 65,713 
annual burden hours and 3,285,657 responses into the new information 
collection request. Once this new collection is merged into OMB Control 
Number 0584-0026, USDA expects that there will be an approximate 
decrease of 1,700 hours and 85,018 responses.
    USDA estimates 337 fewer LEAs than currently approved under OMB 
Control Number 0584-0026 will be required to fulfill the requirement at 
7 CFR 245.6(c)(6)(ii) that LEAs notify households in writing that 
children are eligible for free meals based on direct certification and 
that no application is required. USDA estimates that 15,003 LEA 
respondents will be required to notify 332 households in writing that 
children are eligible for free meals based on direct certification and 
that no application is required each year and that it takes 
approximately one minute (.02 hours) to complete this reporting 
requirement for each record. The proposed reporting requirement adds a 
total of 99,620 annual burden hours and 4,980,996 responses into the 
new information collection request. Once this new collection is merged 
into OMB Control Number 0584-0026, USDA expects that there will be an 
approximate decrease of 2,296 hours and 114,780 responses.
    USDA estimates 337 fewer LEAs than currently approved under OMB 
Control Number 0584-0026 will be required to fulfill the requirement at 
7 CFR 245.6 (c)(7) that LEAs provide written notice to each household 
of denied free or reduced price benefits. USDA estimates that 15,003 
LEA respondents will be required to provide written notice to 
approximately 12 households denied free or reduced price benefits each 
year and that it takes approximately one minute (.02 hours) to complete 
this reporting requirement for each record. The proposed reporting 
requirement adds a total of 3,469 annual burden hours and 173,435 
responses into the new information collection request. Once this new 
collection is merged into OMB Control Number 0584-0026, USDA expects 
that there will be an approximate decrease of 79 hours and 3,969 
responses.
    USDA estimates 337 fewer LEAs than currently approved under OMB 
Control Number 0584-0026 will be required to fulfill the requirement at 
7 CFR 245.6a(f) that LEAs notify households of selection for 
verification. USDA estimates that 15,003 LEA respondents will be 
required to notify approximately seven households of selection for 
verification and that it takes approximately 15 minutes (.25 hours) to 
complete this reporting requirement for each record. The proposed 
reporting requirement adds a total of 24,380 annual burden hours and 
97,520 responses into the new information collection request. Once this 
new collection is merged into OMB Control Number 0584-0026, USDA 
expects that there will be an approximate decrease of 712 hours and 
2,849 responses.
    USDA estimates 337 fewer LEAs than currently approved under OMB 
Control Number 0584-0026 will be required to fulfill the requirement at 
7 CFR 245.6a(j) that LEAs provide households that failed to confirm 
eligibility with 10 days' notice for receiving a reduction or 
termination of free or reduced price meal benefit. USDA estimates that 
15,003 LEA respondents will be required to provide approximately three 
households that failed to confirm eligibility with 10 days' notice for 
receiving a reduction or termination of free or reduced price meal 
benefits and that it takes approximately six minutes (0.1 hours) to 
complete this reporting requirement for each record. The proposed 
reporting requirement adds a total of 3,976 annual burden hours and 
39,798 responses into the new information collection request. Once this 
new collection is merged into OMB Control Number 0584-0026, USDA 
expects that there will be an approximate decrease of 95 hours and 949 
responses.
    USDA estimates that 4,628 more LEAs than currently approved under 
OMB Control Number 0584-0026 will fulfill the requirement at 7 CFR 
245.9(f)(5) that LEAs must submit to the State agency for publication a 
list of eligible and potentially eligible schools and their eligibility 
status; unless otherwise exempted by State agency. USDA estimates that 
4,628 LEA respondents will be required to submit to the State agency 
for publication a list of eligible and potentially eligible schools and 
their eligibility status each year and that

[[Page 17416]]

it takes approximately five minutes (.08 hours) to complete this 
reporting requirement for each record. The proposed reporting 
requirement adds a total of 370 annual burden hours and 4,628 responses 
into the new information collection request. Once this new collection 
is merged into OMB Control Number 0584-0026, USDA expects that 370 
hours and 4,628 responses will be added to the collection. USDA 
estimates that 337 more LEAs than currently approved under OMB Control 
Number 0584-0026 will fulfill the requirement at 7 CFR 245.9(g) that 
LEAs amend free and reduced policy statements and certify that schools 
meet the eligibility criteria when electing CEP and that it takes 
approximately six minutes (.1 hours) to complete this reporting 
requirement for each record. The proposed reporting requirement adds a 
total of 34 annual burden hours and 337 responses into the new 
information collection request. Once this new collection is merged into 
OMB Control Number 0584-0026, USDA expects that an additional 34 hours 
and 337 responses will be added to the collection.

Households

    Since households attending schools participating in CEP are not 
required to submit applications, USDA estimates that, with the proposed 
changes, 77,947 fewer households than currently approved under OMB 
Control Number 0584-0026 will be required to fulfill the requirement at 
245.6(a)(1) that households complete an application form for free or 
reduced price meal benefits. USDA estimates that 3,470,131 household 
respondents will be required to submit applications and that it takes 
approximately seven minutes (.110 hours) to complete this reporting 
requirement for each record. The proposed reporting requirement adds a 
total of 381,714 annual burden hours and 3,470,131 responses into the 
new information collection request. Once this new collection is merged 
into OMB Control Number 0584-0026, USDA expects that there will be an 
approximate decrease of 8,574 hours and 77,947 responses.
    Households attending schools participating in CEP are also not 
required to assemble written evidence for verification of eligibility 
for free and reduced price meals and send to LEA. USDA estimates that 
2,205 fewer households than currently approved under OMB Control Number 
0584-0026 will be required to fulfill the requirement at 245.6a 
(a)(7)(i) that households assemble written evidence for verification of 
eligibility for free and reduced price meals and send to LEA. USDA 
estimates that 98,164 household respondents will be required to 
assemble written evidence for verification of eligibility for free and 
reduced price meals and that it takes approximately 30 minutes (.5 
hours) to complete this reporting requirement for each record. The 
proposed reporting requirement adds a total of 49,082 annual burden 
hours and 98,164 responses into the new information collection request. 
Once this new collection is merged into OMB Control Number 0584-0026, 
USDA expects that there will be an approximate decrease of 1,103 hours 
and 2,205 responses.

Recordkeeping

State Agencies

    The changes proposed in this rulemaking will impact the existing 
recordkeeping requirement currently approved under OMB Control Number 
0584-0026 and found at 7 CFR 245.9(f)(4)(ii) that State agencies must 
review and confirm LEAs' eligibility to participate in CEP. USDA 
expects that State agencies will need to review an additional 337 LEAs 
with schools newly electing CEP based on the changes proposed in this 
rulemaking. USDA estimates that 54 State Agency respondents will be 
required to review and confirm LEAs' eligibility to participate in 
Provisions 1, 2, or 3 or the CEP for approximately 337 LEAs electing 
CEP each year and that it takes approximately five minutes (.08 hours) 
to complete this recordkeeping requirement for each record. The 
proposed recordkeeping requirement adds a total of 27 annual burden 
hours and 337 responses into the new information collection request. 
Once this new collection is merged into OMB Control Number 0584-0026, 
USDA expects that an additional 27 hours and 337 responses will be 
added to the collection.

LEAs

    The changes proposed in this rulemaking will impact the existing 
reporting requirements currently approved under OMB Control Number 
0584-0026 for LEAs. USDA expects that as a result of the proposed 
changes, more LEAs electing CEP will be electing CEP for all schools in 
the LEA, or district wide. This will result in a decrease in the number 
of LEAs required to maintain documentation substantiating eligibility 
determinations. USDA estimates 337 fewer LEAs than currently approved 
under OMB Control Number 0584-0026 will be required to fulfill the 
requirement at 7 CFR 245.6(e) to maintain documentation substantiating 
eligibility determinations for three years after the end of the fiscal 
year to which they pertain. USDA estimates that 15,003 LEA respondents 
will be required to maintain documentation related to substantiating 
eligibility determinations for three years after the end of the fiscal 
year to which they pertain and that it takes approximately 5 minutes 
(.08 hours) to complete this recordkeeping requirement for each record. 
The proposed recordkeeping requirement adds a total of 1,200 annual 
burden hours and 15,003 responses into the new information collection 
request. Once this new collection is merged into OMB Control Number 
0584-0026, USDA expects that there will be an approximate decrease of 
27 hours and 337 responses.
    USDA expects that as a result of the proposed changes, 337 more 
LEAs than currently approved under OMB Control Number 0584-0026 will 
elect CEP and be required to fulfill the recordkeeping requirement at 7 
CFR 245.9(h)(3) that LEAs maintain documentation related to the 
methodology used to calculate the ISP and determine eligibility for the 
CEP. USDA estimates that 337 LEA respondents will be required to 
maintain documentation related to methodology used to calculate the ISP 
and determine eligibility and that it takes approximately 55 minutes 
(.910 hours) to complete this recordkeeping requirement for each 
record. The proposed recordkeeping requirement adds a total of 307 
annual burden hours and 337 responses into the new information 
collection request. Once this new collection is merged into OMB Control 
Number 0584-0026, USDA expects that an additional 307 hours and 337 
responses will be added to the collection.
    USDA does not expect lowering the threshold to participate in CEP 
to an ISP of 25% to impact the approved public notification 
requirements at 7 CFR 245.9(f)(7). While this proposed rule will 
increase the number of schools eligible for the CEP, the burden for 
States to notify LEAs of their community eligibility status due to the 
increased number of eligible schools is already captured above in the 
reporting requirements at 7 CFR 245.9(f)(6). Making these lists 
publicly available will not take any additional time than is currently 
approved under OMB Control Number 0584-0026 and accordingly is not 
addressed in this information collection.
    As a result of the proposals outlined in this rulemaking, FNS 
estimates that this new information collection will

[[Page 17417]]

have 3,485,188 respondents, 12,171,267 responses, and 630,207 burden 
hours. The average burden per response and the annual burden hours are 
explained below and summarized in the charts which follow. Once the 
information collection request for the final rule is approved and the 
requirements and associated burden for this new information collection 
are merged into the existing collection, FNS estimates that the burden 
for OMB Control Number 0584-0026 will decrease by 277,450 responses and 
13,534 burden hours.
Reporting
    Respondents (Affected Public): Individual/Households; and State, 
Local and Tribal Government. The respondent groups identified include 
households, State Agencies and LEAs.
    Estimated Number of Respondents: 3,485,188.
    Estimated Number of Responses per Respondent: 3.49.
    Estimated Total Annual Responses: 12,155,590.
    Estimated Time per Response: 0.052 (approximately 3 minutes).
    Estimate Total Annual Burden on Respondents: 628,673 hours.
Recordkeeping
    Respondents (Affected Public): State, Local and Tribal Government. 
The respondent groups identified include State Agencies and LEAs.
    Estimated Number of Respondents: 15,057.
    Estimated Number of Responses per Respondent: 1.04.
    Estimated Total Annual Responses: 15,677.
    Estimated Time per Response: .098 (approximately 6 minutes).
    Estimate Total Annual Burden on Respondents: 1,534 hours.

                                                                                            Reporting
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Estimated                 Estimated
                                                                                                                                                 total                     future     Estimated
                                                                                                                                                 annual                    burden       future
                                                                                                                                                 burden       Hours      hours for    change in
                                                                                       Estimated    Frequency of     Total    Average burden   hours for    currently    OMB #0584-     burden
          Description of activities                    Regulation citation             number of      response      annual       hours per     OMB #0584-    approved    0026 after   hours for
                                                                                      respondents                  responses     response     00xx due to   under OMB    the merge    OMB #0584-
                                                                                                                                                proposed    #0584-0026    with OMB   0026 due to
                                                                                                                                               rulemaking                #0584-00xx   rulemaking
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
State agency to notify LEAs of their           245.9(f)(6)........................              54         85.70       4,628           0.050          231          436          667          231
 community eligibility status as applicable.
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total State Agency Reporting.............  ...................................              54  ............       4,628  ..............          231          436          667          231
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LEAs submit to State agency documentation of   245.9(f)(4)(i).....................             337          1.00         337           0.250           84          125          209           84
 acceptable ISP of LEA/school electing the
 provision.
LEAs notify households of approval of meal     245.6(c)(6)(i).....................          15,003        219.00   3,285,657           0.020       65,713       67,414       65,713       -1,701
 benefit applications.
LEAs must notify households in writing that    245.6(c)(6)(ii)....................          15,003        332.00   4,980,996           0.020       99,620      101,916       99,620       -2,296
 children are eligible for free meals based
 on direct certification and that no
 application is required.
LEAs provide written notice to each household  245.6(c)(7)........................          15,003         11.56     173,435           0.020        3,469        3,548        3,469          -79
 of denied free or reduced price benefits.
LEAs notify households of selection for        245.6a(f)..........................          15,003          6.50      97,520           0.250       24,380       25,092       24,380         -712
 verification.
LEAs must provide households that failed to    245.6a(j)..........................          15,003          2.65      39,758           0.100        3,976        4,071        3,976          -95
 confirm eligibility with 10 days' notice for
 receiving a reduction or termination of free
 or reduced price meal benefits.

[[Page 17418]]

 
LEA to submit to the State agency for          245.9(f)(5)........................           4,628          1.00       4,628           0.080          370          698        1,068          370
 publication a list of eligible and
 potentially eligible schools and their
 eligibility status; unless otherwise
 exempted by State agency.
LEAs to amend free and reduced policy          245.9(g)...........................             337          1.00         337           0.100           34           50           84           34
 statement and certify that schools meet
 eligibility criteria.
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total Local Education Agency Reporting...  ...................................          15,003  ............   8,582,667  ..............      197,646      202,914      198,519       -4,396
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total State and Local Agency Level Total.  ...................................          15,057  ............   8,587,295  ..............      197,877      203,350      199,186       -4,165
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Households complete application form for free  245.6(a)(1)........................       3,470,131          1.00   3,470,131           0.110      381,714      390,289      381,714       -8,575
 or reduced price meal benefits.
Households assemble written evidence for       245.6(a)(7)(i).....................          98,164          1.00      98,164           0.500       49,082       50,185       49,082       -1,103
 verification of eligibility for free and
 reduced price meals and send to LEA.
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total Household Reporting................  ...................................       3,470,131  ............   3,568,295  ..............      430,796      440,474      430,796       -9,678
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total Reporting..........................  ...................................       3,485,188          3.49  12,155,590            .052      628,673      628,673      629,982      -13,842
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                                            Reporting
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Estimated                 Estimated
                                                                                                                                                 total                     future     Estimated
                                                                                                                                                 annual                    burden       future
                                                                                                                                                 burden       Hours      hours for    change in
                                                                                       Estimated    Frequency of     Total    Average burden   hours for    currently    OMB #0584-     burden
          Description of activities                    Regulation citation             number of      response      annual       hours per     OMB #0584-    approved    0026 after   hours for
                                                                                      respondents                  responses     response     00xx due to   under OMB    the merge    OMB #0584-
                                                                                                                                                proposed    #0584-0026    with OMB   0026 due to
                                                                                                                                               rulemaking                #0584-00xx   rulemaking
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
State Agency to review and confirm LEAs        245.9(f)(4)(ii)....................              54          6.24         337            .080           27           40           67           27
 eligibility to participate in Provisions 1,
 2, or 3 or the Community Eligibility
 Provision.
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total State Agency Recordkeeping.........  ...................................              54  ............         337  ..............           27           40           67           27
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 17419]]

 
LEA must maintain documentation                245.6(e)...........................          15,003             1      15,003           0.080        1,200        1,227        1,200          -27
 substantiating eligibility determinations
 for 3 years after the end of the fiscal year.
LEA to maintain documentation related to       245.9(h)(3)........................             337             1         337            .910          307          455          762          307
 methodology used to calculate the ISP and
 determine eligibility.
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total Local Education Agency               ...................................          15,003  ............      15,340  ..............        1,507        1,682        1,962          280
     Recordkeeping.
                                                                                   -------------------------------------------------------------------------------------------------------------
    Total Recordkeeping......................  ...................................          15,057          1.04      15,677            .098        1,534        1,722        2,029          307
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    OMB #0584-00xx due to proposed rule
                                                               OMB #0584-0026 once merged with OMB #0584-00xx
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total No. Respondents.............................................................    3,485,188
                                                                                      3,493,364
Average No. Responses per Respondent..............................................        3.492
                                                                                          3.513
Total Annual Responses............................................................   12,171,267
                                                                                     12,272,745
Average Hours per Response........................................................        0.052
                                                                                           .053
Total Burden Hours................................................................      630,207
                                                                                        651,192
Current OMB Inventory.............................................................            0
                                                                                        664,726
Tentative Difference Due to Rulemaking............................................      630,207
                                                                                        -13,534
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

E-Government Act Compliance

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

List of Subjects in 7 CFR Part 245

    Civil rights, Food assistance programs, Grant programs--education, 
Grant programs--health, Infants and children, Milk, Reporting and 
recordkeeping requirements, School breakfast and lunch programs.

    For the reasons stated in the preamble, FNS proposes to amend 7 CFR 
part 245 as follows:

PART 245--DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS 
AND FREE MILK IN SCHOOLS

0
1. The authority citation for 7 CFR Part 245 continues to read as 
follows:

    Authority: 42 U.S.C. 1752, 1758, 1759a, 1772, 1773, and 1779.


Sec.  245.9  [Amended]

0
2. In Sec.  245.9, in paragraph (f), wherever it appears, remove ``40 
percent'' and add, in its place ``25 percent'', and wherever it 
appears, remove ``30 percent'' and add, in its place ``15 percent''.

Cynthia Long,
Administrator, Food and Nutrition Service.
[FR Doc. 2023-05624 Filed 3-22-23; 8:45 am]
BILLING CODE 3410-30-P