[Federal Register: October 23, 2006 (Volume 71, Number 204)]
[Rules and Regulations]
[Page 62057-62058]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc06-1]
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Rules and Regulations
Federal Register
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[[Page 62057]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 226
RIN 0584-AD66
For-Profit Center Participation in the Child and Adult Care Food
Program
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule adopts without change the interim rule, published on
July 27, 2005, which added a provision to the Child and Adult Care Food
Program (CACFP) regulations authorizing for-profit centers providing
child care or outside-school-hours care to participate based on the
income eligibility of 25 percent of children in care for free or
reduced price meals. This provision, which has been available
nationwide through annual appropriation acts since December 2000, was
permanently established by the Child Nutrition and WIC Reauthorization
Act of 2004. This rule permits the ongoing participation of for-profit
centers in the CACFP based on the income eligibility of children in
care for free or reduced price meals.
DATES: This final rule is effective November 22, 2006.
FOR FURTHER INFORMATION CONTACT: Keith Churchill or Minh Pham, Child
Care and Summer Section, Policy and Program Development Branch, Child
Nutrition Division, Food and Nutrition Service, USDA, 3101 Park Center
Drive, Alexandria, VA 22302, phone (703) 305-2590.
SUPPLEMENTARY INFORMATION:
I. Background
Why Was the Interim Rule Published?
An interim rule on the participation of for-profit centers in the
CACFP was published on July 27, 2005 (70 FR 43259). The interim rule
was issued in response to Section 119(a) of the Child Nutrition and WIC
Reauthorization Act of 2004 (Pub. L. 108-265), which amended section
17(a)(2)(B)(i) of the Richard B. Russell National School Lunch Act
(NSLA) (42 U.S.C. 1766(a)(2)(B)(i)) to permanently authorize for-profit
centers that provide child care or outside-school-hours care to
participate in the CACFP if 25 percent of the children in care are
eligible for free or reduced price meals under the Program.
This criterion provides an additional means by which for-profit
centers may qualify for Program participation. For-profit centers in
all States have been permitted to participate in the Program since
December 2000, when a provision of Public Law 106-554, added Section
17(a)(2)(B)(i) to the NSLA, 42 U.S.C. 1766(a)(2)(B)(i). That time-
limited provision was subsequently renewed annually until made
permanent by Public Law 108-265 on June 30, 2004. Prior to December
2000, the Food and Nutrition Service (FNS) implemented separate but
similar authority in section 17(p) of the NSLA, 42 U.S.C. 1766(p),
permitting for-profit centers in three States (Kentucky, Iowa, and
Delaware) to participate in the Program. Section 119(a)(2) of Public
Law 108-265 struck this provision. As a result of the permanent
statutory provision affecting for-profit centers, these States were
notified that the pilot projects were eliminated and their affected
for-profit centers were incorporated into regular for-profit Program
participation under section 17(a)(2)(B)(i).
This authority differs from that in section 17(a)(2)(B)(ii) (42
U.S.C. 1766(a)(2)(B)(ii)), which permits for-profit centers providing
child care or outside-school-hours care to participate in the CACFP if
they receive compensation from the State title XX funds and if at least
25 percent of the enrolled children or the licensed capacity (whichever
is less) receive benefits under title XX of the Social Security Act.
This criterion was established by Public Law 101-147, which
reauthorized child nutrition programs in November 1989, and is located
at section 17(a)(2)(B)(ii) of the NSLA.
This final rule adopts the definition of ``For-profit center'' in
Sec. 226.2, which was added to the CACFP regulations by the interim
rule. This definition describes the eligibility criteria pertaining to
for-profit centers serving children and adults. All other changes,
which were made by the interim rule and are adopted by this final rule,
stem from this new definition of for-profit center. These changes
consist primarily of name changes in which the new term ``For-profit
center'' is substituted for ``Proprietary title XIX center'' or
``Proprietary title XX center''.
What Comments Were Received on the Interim Rule?
We did not receive any comments on the interim rule.
II. Procedural Matters
Executive Order 12866
This rule has been determined to be not significant and was not
reviewed by the Office of Management and Budget in conformance with
Executive Order 12866.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Roberto Salazar,
Administrator for the Food and Nutrition Service, has certified that
this rule will not have a significant economic impact on a substantial
number of small entities. This final rule implements a statutory change
that permanently authorizes for-profit centers to participate in the
Child and Adult Care Food Program on the basis of income eligibility of
25 percent of children in care for free or reduced price meals. This
provision has been available to for-profit centers as an eligibility
criterion for participation in the Program since FY 2001. Since the
provision is not new, the Food and Nutrition Service estimates that the
permanent designation of this eligibility criterion will not
substantially increase the number of for-profit centers that may apply
to participate in the Program.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA,
[[Page 62058]]
the Department generally must prepare a written statement, including a
cost/benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures 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 the UMRA generally requires the Department 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 rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) that impose costs on State, local,
or tribal governments or to the private sector of $100 million or more
in any one year. This rule is, therefore, not subject to the
requirements of sections 202 and 205 of the UMRA.
Executive Order 12372
The Child and Adult Care Food Program is listed in the Catalog of
Federal Domestic Assistance under No. 10.558. For the reasons set forth
in the final rule in 7 CFR part 3015, Subpart V and related Notice
published at 48 FR 29114, June 24, 1983, this program is included in
the scope of Executive Order 12372, which requires intergovernmental
consultation with State and local officials.
Executive Order 13132
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 regulation
describing the agency's considerations in terms of three categories
called for under section (6)(b)(2)(B) of Executive Order 13132. FNS has
considered the impact of this rule on State and local governments and
has determined that this rule does not have federalism implications.
This final 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
The rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is intended to have preemptive effect with
respect to any State or local laws, regulations, or policies which
conflict with its provisions or which would otherwise impede its full
implementation. This rule is not intended to have retroactive effect
unless so specified in the Dates paragraph of the rule. Prior to any
judicial challenge to the provisions of this rule or the application of
its provisions, all applicable administrative procedures must be
exhausted. In the Child and Adult Food Care Program, the administrative
procedures are set forth at 7 CFR 226.6(k), which establishes appeal
procedures and 7 CFR 226.22 and 7 CFR parts 3016 and 3019, which
address administrative appeal procedures for disputes involving
procurement by State agencies and institutions.
Civil Rights Impact Analysis
FNS has reviewed this final rule in accordance with the Department
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
there is no negative effect on these groups. All data available to FNS
indicate that protected individuals have the same opportunity to
participate in the CACFP as non-protected individuals. Regulations at 7
CFR 226.6(f)(1) require that CACFP institutions agree to operate the
Program in compliance with applicable Federal civil rights laws,
including title VI of the Civil Rights Act of 1964, title IX of the
Education amendments of 1972, Section 504 of the Rehabilitation Act of
1973, the Age Discrimination Act of 1975, and the Department's
regulations concerning nondiscrimination (7 CFR Part 15, 15a, and 15b).
At 7 CFR 226.6(m)(1), State agencies are required to monitor CACFP
institution compliance with these laws and regulations.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR
1320) requires that the Office of Management and Budget (OMB) approve
all collections of information by a Federal agency from the public
before they can be implemented. Respondents are not required to respond
to any collections of information unless it displays a current valid
OMB control number. The rule does not contain any information
collection requirements subject to approval by OMB under the Paperwork
Reduction Act of 1995.
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.
List of Subjects in 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.
PART 226--CHILD AND ADULT CARE FOOD PROGRAM
Accordingly, the interim rule amending 7 CFR part 226, which was
published at 70 FR 43259 on July 27, 2005, is adopted as a final rule
without change.
Dated: October 13, 2006.
Roberto Salazar,
Administrator, Food and Nutrition Service.
[FR Doc. E6-17640 Filed 10-20-06; 8:45 am]
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