Correction
Published Dec. 27, 2022: https://www.fns.usda.gov/sfsp/fr-122722
Summary
This rulemaking amends the Summer Food Service Program (SFSP) regulations to strengthen program integrity by clarifying, simplifying, and streamlining program administration to facilitate compliance with program requirements. Through this final rule, USDA is codifying changes to the regulations that will streamline requirements among child nutrition programs, simplify the application process, enhance monitoring requirements, offer more clarity on existing requirements, and provide more discretion at the state agency level to manage program operations.
Background
The Summer Food Service Program (SFSP) is authorized under section 13 of the Richard B. Russell National School Lunch Act (NSLA), 42 USC 1761. Its primary purpose is to provide free, nutritious meals to children from low-income areas during periods when schools are not in session.
USDA published the proposed rule Streamlining Program Requirements and Improving Integrity in the Summer Food Service Program (SFSP) on Jan. 23, 2020 (85 FR 4064) in order to streamline requirements for program operators and enhance the customer experience for participating children and their families. Although this final rule primarily affects the SFSP, it also makes changes to the regulations related to waiver authority for the National School Lunch Program (NSLP), School Breakfast Program (SBP), Special Milk Program, Fresh Fruit and Vegetable Program, and the Child and Adult Care Food Program (CACFP). This rulemaking is the culmination of many years of stakeholder and community engagement, which informed the development of these policies.
Many of the provisions codified through this final rule are currently allowed as program flexibilities and have been shown to improve program administration and enhance service delivery for participating children and their families. These flexibilities were previously indicated through policy memoranda and will now have the full force and effect of law. In addition, this rule will codify key aspects of four nationwide waivers that were available in the past but have been rescinded in response to an audit by the USDA Office of the Inspector General (OIG), entitled “FNS Controls Over the Summer Food Service Program” (27601-0004- 41). This report led USDA to determine that offering waivers under 42 USC 1760(l) on a nationwide basis is not supported by the statute. However, beginning in 2019, USDA allowed states and sponsors to request, on an individual basis, four of the rescinded waivers: first week site visits, meal service times, offer versus serve, and eligibility for closed enrolled sites. Such individual waivers are authorized under section 12(l) of the NSLA, which provides USDA authority to waive certain provisions of the child nutrition programs if a waiver would facilitate the ability of the state or eligible service provider to carry out the purpose of the affected program while also meeting public notice and federal cost requirements. States and eligible service providers were approved for more than 230 individual section 12(l) waivers under this authority for summer 2019, related primarily to the four rescinded waivers.
In March 2020, Congress passed the Families First Coronavirus Response Act (FFCRA) (PL 116-127), which authorized USDA to establish nationwide waivers for all states for the purposes of providing meals under the child nutrition programs with appropriate safety measures with respect to the novel coronavirus (COVID–19) pandemic. Under section 2202(a) of this authority, USDA issued nationwide waivers for first week site visits, meal service times, offer versus serve, and eligibility for closed enrolled sites. Therefore, states and eligible service providers did not need to request these same waivers under section 12(l) of the NSLP on an individual basis in summers 2020 or 2021. Prior to issuance of the nationwide waivers under section 2202(a) of FFCRA, USDA received 189 requests for individual waivers under section 12(l) of the NSLP related to the four rescinded waivers for summer 2020. The large number of individual waiver requests received from states and sponsors related to the rescinded waivers demonstrates the value of the policies allowed through the waivers, and the benefit of codifying key aspects of the waivers so that these policies are available to all states and sponsors without the need to request a waiver. Through the process of evaluating waiver requests and outcomes for summer 2019, USDA gained valuable insight into challenges and best practices of using the waivers, which informed changes in this final rule to provisions impacted by the waivers. As a result, this final rule codifies, with modifications that will promote better program integrity, the four most requested SFSP waivers.
Codifying existing flexibilities and key aspects of the four rescinded nationwide waivers will facilitate sponsor and site participation, decrease paperwork burdens on state agencies and sponsors, and provide certainty that these options will continue to be available.
This final rule also codifies additional provisions to streamline program administration, enhance monitoring requirements, and provide needed clarity on existing provisions. In their totality, these changes will improve the customer experience, and facilitate the ability of states and sponsors to implement the program with fidelity.
Review the complete Federal Register posting for:
- a table, entitled FNS Policy Memoranda Addressed in This Rule, which details USDA policy memoranda that are discussed in this rule, the specific provision(s) from each memorandum that is discussed, the status of the impacted waiver or flexibility, and the section of the rule in which it is addressed;
- additional information on public comments;
- a section-by-section discussion of the regulatory provisions; and
- procedural matters.