AGENCY:

Food and Nutrition Service (FNS), USDA.

ACTION:

Final rule.

SUMMARY:

This action delays, from October 1, 2019 until October 1, 2021, the implementation date of the “ounce equivalents” requirement for crediting grains served in the Child and Adult Care Food Program (CACFP). The final rule, Child and Adult Care Food Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act of 2010, published on April 25, 2016, specified that meal planners must use ounce equivalents to determine the amount of creditable grain served as part of a reimbursable meal or snack. A two-year extension allows more time for FNS to develop additional technical assistance materials and for State agencies and sponsoring organizations to provide training and technical assistance to support meal planners and assure compliance nationwide. This action is consistent with FNS' efforts to provide excellent customer service as we work with State and local partners to ensure high quality, nutritious meals for children and adult participants in CACFP. This action also applies to the crediting of grains served to infants and toddlers in the National School Lunch and School Breakfast Programs. In addition, this rule makes a technical correction to the application for free and reduced-price meals for adult CACFP participants.

DATES:

Effective October 1, 2019.

FOR FURTHER INFORMATION CONTACT:

Andrea Farmer, 703-305-2590, andrea.farmer@usda.gov.

SUPPLEMENTARY INFORMATION:

Background

This final rule delays the implementation date, from October 1, 2019 until October 1, 2021, of the requirement for crediting grains served in CACFP by “ounce equivalents.” Historically, meal planners at day care homes and centers in CACFP have credited grains served as part of a reimbursable meal or snack based on household measures, such as cups or “servings” of breads and other grain-based foods. The final rule, Child and Adult Care Food Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act of 2010, published at 81 FR 24347 on April 25, 2016, specified that grains must be credited using ounce equivalents instead.

To make compliance easier, particularly as State agencies and local partners were focused on implementing more significant aspects of the meal pattern rule, FNS initially delayed implementation of the ounce equivalents provision until October 1, 2019. However, even with the additional time, confusion among some meal planners convinced FNS that additional training and technical assistance is needed to support day care homes and centers with the tools they need to more easily implement this provision and assure compliance.

On July 1, 2019, FNS published a proposed rule, Delayed Implementation of Grains Ounce Equivalents in the Child and Adult Care Food Program, 84 FR 31227, that would allow State agencies, institutions, and day care homes and centers additional time to fully implement the crediting of grains by ounce equivalents by October 1, 2021. The rule proposed a two-year extension to allow adequate time for FNS to develop additional technical assistance materials and for State agencies and sponsoring organizations to use these materials to provide training and technical assistance to support meal planners and assure compliance nationwide. This action is consistent with FNS' efforts to provide excellent customer service as we work with State and local partners to ensure high quality, nutritious meals for children and adult participants in CACFP.

FNS received 679 written comments during the 30-day comment period, which ended on July 31, 2019. Of these, 311 were unique comments and the remainder (368) were form letters. The majority of respondents were child care providers, including both center-based and in-home based care. Comments were also received from State administering agencies, non-profit organizations, advocates, dietitians, academics, industry stakeholders, adult care providers, and members of the general public.

The vast majority of respondents (604) wrote in support of a delayed implementation. As such, FNS will move forward with the delay as proposed. Most supporters cited the need for training and technical assistance on ounce equivalents. Supporters also frequently stated that the immediate change would overwhelm meal planners at day care homes and centers who may still be adjusting to implementing the other requirements of the updated CACFP meal patterns. Meal planners in CACFP may lack experience with or access to the same types of resources, such as Child Nutrition labeled products or the Food Buying Guide Interactive Web-Based Tool, which have helped schools successfully implement ounce equivalents in the National School Lunch and School Breakfast Programs. Many respondents cited the need for more user-friendly resource materials on ounce equivalents from FNS and other sources.

Nineteen respondents wrote in opposition to the delay, including one State agency. They stated that day care home and center providers have had adequate time to adjust to using ounce equivalents or that the State agency had already successfully implemented training. FNS is encouraged that these respondents are ready for implementation and FNS supports early implementation of ounce equivalents crediting, as outlined in the paragraphs below.

Seventy-eight respondents expressed frustration with the requirement or asked that it be reevaluated. The most common concerns were a lack of time and equipment. Many of these commenters seemed to misunderstand the ounce equivalents requirement and believed that all grain portions must be weighed using a kitchen scale, thus requiring new equipment and reducing staff time available for direct care of children or adults in the program. To clarify, the use of ounce equivalents to credit grains will not require all grain portions to be weighed. Among these 78 respondents, 42 simultaneously supported the delay. In addition, some respondents expressed their frustration with CACFP requirements in general, often citing documentation burdens or limited staff resources, without expressing an opinion on the proposed delay. FNS will continue to listen to stakeholder feedback and monitor implementation during the period of delay to assess the success of sponsoring organizations and program operators in applying the ounce equivalents requirement.

FNS recognizes the concerns of stakeholders about the need for additional transition time to prepare to credit grains in ounce equivalents. FNS is working to deliver technical assistance materials and tools that can help simplify the use of ounce equivalents in CACFP, including resources that allow providers planning and preparing meals to continue to use common household measures while meeting the new crediting requirements.

Some examples of the resources that will ease this transition include a training webinar, a revised Crediting Handbook for the Child and Adult Care Food Program, and standardized recipes. USDA is also updating the online Food Buying Guide for Child Nutrition Programs— which now contains the Recipe Analysis Workbook and the Exhibit A Grains Tool—that allows menu planners to easily determine grain contributions for commercial grain products. FNS is also working to develop additional CACFP Meal Pattern Training Worksheets that will simplify the use of ounce equivalents, and clarify the method for determining ounce equivalents for grains in the CACFP. These new tools will be available on USDA Team Nutrition's web page: https://www.fns.usda.gov/​tn.

Although this rule requires full implementation of ounce equivalents by October 1, 2021, State agencies may implement the ounce equivalents requirements prior to October 1, 2021. FNS encourages State agencies and sponsoring organizations to implement ounce equivalents as soon as they are confident that day care homes and centers have the training and technical assistance they need to successfully achieve compliance. However, during the period of early implementation, State agencies and sponsoring organizations must provide technical assistance in lieu of fiscal action when they observe violations related to the ounce equivalents requirement. Prior to October 1, 2021, a violation based solely on this requirement may not result in a disallowance of Federal reimbursement of meals that are otherwise eligible, an assessment of an overclaim, a declaration of serious deficiency, or any other adverse action.

Accordingly, FNS delays full implementation of the ounce equivalents requirement in CACFP until October 1, 2021. This action also applies to the crediting of grains served to infants and toddlers in the National School Lunch and School Breakfast Programs. Corresponding changes are made to update the infant meal pattern tables at 7 CFR 210.10(o), 210.10(q), 220.8(p), and 226.20(c); preschool meal pattern tables at 7 CFR 210.10(o), 210.10(p), and 220.8(o); and meal pattern tables for children and adult participants at 7 CFR 226.20(c). FNS is revising the endnotes to these tables to state that, beginning on October 1, 2021, ounce equivalents will be used to determine the quantity of creditable grains. FNS is also removing endnotes, which delayed implementation of the minimum serving size of dry, cold whole grain-rich, enriched, or fortified ready-to-eat cereal, specified in some of the tables. Beginning on October 1, 2019, this information will no longer be needed.

FNS is also using this opportunity to correct a technical error that appears in the free and reduced-price meal application for adult CACFP participants at 7 CFR 226.23. Under section 9(d)(1) of the Richard B. Russell National School Lunch Act, 42 U.S.C. 1758(d)(1), only the adult household member who signs a household application for free and reduced-price lunches must provide the last four digits of his or her social security number, as a condition of eligibility. However, an error in the statement that must be included on the meal benefit form for adult participants requires the last four digits of the social security number of all adult household members, including the adult day care participant. Accordingly, this rule corrects the statement at 7 CFR 226.23(e)(1)(iii)(E) to require the last four digits of the social security number of only the adult household member who signs the meal benefit form.

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 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, reducing costs, harmonizing rules, and promoting flexibility. This final rule was determined to be not significant and was not reviewed by the Office of Management and Budget (OMB).

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. The FNS Administrator has certified that this final rule will not have a significant economic impact on a substantial number of small entities. This rule allows meal planners additional time to receive training and technical assistance and additional time for State agencies and sponsoring organizations to facilitate implementation of the new requirement. While this rule will affect State agencies, sponsoring organizations, school food authorities, and day care homes and centers, any economic effect will not be significant.

Executive Order 13771

Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that the cost of planned regulations be prudently managed and controlled through a budgeting process. This final rule is not expected to be an Executive Order 13771 regulatory action because it is not significant under Executive Order 12866.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and the private sector. Under section 202 of UMRA, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of UMRA generally requires FNS 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 final rule contains no Federal mandates, under the regulatory provisions of title II of UMRA, for State, local, and tribal governments, or the private sector, of $100 million or more in any one year. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 12372

CACFP is listed in the Assistance Listings under the Catalog of Federal Domestic Assistance Number 10.558. The National School Lunch Program and School Breakfast Program are listed under No. 20.555 and 10.553, respectively. They are subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. Since the Child Nutrition Programs are State-administered, FNS has 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 FNS with the opportunity to receive regular input from State administrators and local program operators, which contributes to the development of feasible requirements.

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. FNS has determined that this final rule does not have federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the application of the provisions of this rule, all applicable administrative procedures must be exhausted.

Civil Rights Impact Analysis

FNS has reviewed this final rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis, to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that this rule is not expected to limit or reduce the ability of protected classes of individuals to participate as program operators or as recipients of meal benefits. FNS also does not expect this rule to have any disparate impacts on program operators by protected classes of individuals.

Executive Order 13175

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Tribal representatives were informed about this rulemaking on June 27, 2019. FNS anticipates that this will have no significant cost and no major increase in regulatory burden on tribal organizations.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 and 5 CFR 1320, requires OMB to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This final rule does not add any new information collection requirements.

E-Government Act Compliance

FNS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Online resources to aid in the implementation of ounce equivalents for grains in the CACFP include the online interactive Food Buying Guide for Child Nutrition Programs, the Exhibit A Grains Tool, and the Recipe Analysis Workbook.

List of Subjects

7 CFR Part 210

• Grant programs—education
• Grant Programs—health
• Infants and children
• Nutrition
• Penalties
• Reporting and recordkeeping requirements
• School breakfast and lunch programs
• Surplus agricultural commodities

7 CFR Part 220

• Grant programs—education
• Grant Programs—health
• Infants and children
• Nutrition
• Reporting and recordkeeping requirements
• School breakfast and lunch programs

7 CFR Part 226

• Accounting
• Aged
• Day care
• Food assistance programs
• Grant programs
• Grant programs—health
• American Indians
• Individuals with disabilities
• Infants and children
• Intergovernmental relations
• Loan programs
• Reporting and recordkeeping requirements
• Surplus agricultural commodities

Accordingly, 7 CFR parts 210, 220, and 226 are amended as follows:

PART 210—NATIONAL SCHOOL LUNCH PROGRAM

1. The authority citation for part 210 continues to read as follows:

Authority: 42 U.S.C. 1751-1760, 1779.

2. In § 210.10, revise the tables in paragraphs (o)(3)(ii), (o)(4)(ii), (p)(2), and (q)(2) to read as follows:

PART 220—SCHOOL BREAKFAST PROGRAM

3. The authority citation for part 220 continues to read as follows:

Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.

4. In § 220.8, revise the tables in paragraphs (o)(2) and (p)(2), to read as follows:

PART 226—CHILD AND ADULT CARE FOOD PROGRAM

5. The authority citation for 7 CFR part 226 continues to read as follows:

Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell National School Lunch Act, as amended, 42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766.

6. In § 226.20:

a. Revise the table in paragraph (b)(5);

b. In the table to paragraph (c)(1), remove the date “October 1, 2019” in endnote 7 and add in its place “October 1, 2021”, and remove endnote 9;

c. In the table to paragraph (c)(2), remove the date “October 1, 2019” in endnote 10 and add in its place “October 1, 2021”; and

d. In the table to paragraph (c)(3), remove the date “October 1, 2019” in endnote 8 and add in its place “October 1, 2021”, and remove endnote 10.

The revision reads as follows:

7. In § 226.23, revise the third sentence in paragraph (e)(1)(iii)(E) to read as follows: