Federal Register, Volume 76 Issue 79 (Monday, April 25, 2011)

[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 22785-22802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9457]

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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, 225, 226 and 245

[FNS-2008-0001]
RIN 0584-AD60

Direct Certification and Certification of Homeless, Migrant and
Runaway Children for Free School Meals

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule with request for comments.

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[[Page 22786]]

SUMMARY: This rule amends the regulations affecting the determination
of children's eligibility for free meals under the National School
Lunch Program and the School Breakfast Program by direct certification
and categorical eligibility. Conforming changes and miscellaneous
technical changes are also made, as appropriate, for the Special Milk
Program for Children, the Child and Adult Care Food Program and the
Summer Food Service Program. The Child Nutrition and WIC
Reauthorization Act of 2004 (Reauthorization Act) amended the Richard
B. Russell National School Lunch Act to require local educational
agencies to conduct direct certification in conjunction with the Food
Stamp Program, which is now called the Supplemental Nutrition
Assistance Program (SNAP). Under the direct certification process, a
local educational agency obtains documentation of a child's receipt of
SNAP benefits from the State or local SNAP office. This rule also
incorporates provisions from the Reauthorization Act concerning the
certification of certain children who are homeless, runaway, or
migratory.
This rule affects State agencies administering SNAP and the Child
Nutrition Programs; local offices administering SNAP; local program
operators that administer the School Nutrition Programs; and low income
households with school age children. The rule is intended to improve
school meal program access for low-income children, reduce paperwork
for households and program administrators, and improve the integrity of
the free and reduced price meal certification process.

DATES: Effective date: This rule is effective June 24, 2011. Comment
dates: Comments on rule provisions: Mailed comments on the provisions
in this rule must be postmarked on or before October 24, 2011; e-mailed
or faxed comments must be submitted by 11:59 p.m. on October 24, 2011;
and hand-delivered comments must be received by 5 p.m. October 24, 2011
to be assured of consideration.
Comments on Paperwork Reduction Act requirements: Comments on the
information collection requirements associated with this rule must be
received by June 24, 2011.

ADDRESSES: The Food and Nutrition Service (FNS) invites interested
persons to submit comments on this interim rule. Comments may be
submitted by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: (703) 305-2879, attention Julie Brewer.
Mail: Julie Brewer, Chief, Policy and Program Development
Branch, Child Nutrition Division, Food and Nutrition Service,
Department of Agriculture, 3101 Park Center Drive, Room 640,
Alexandria, Virginia 22302-1594.
Hand Delivery or Courier: Deliver comments to 3101 Park
Center Drive, Room 640, Alexandria, Virginia 22302-1594, during normal
business hours of 8:30 a.m.-5 p.m.
All submissions received in response to this interim rule will be
included in the record and will be available to the public. Please be
advised that the substance of the comments and the identity of the
individuals or entities submitting comments will be subject to public
disclosure. FNS may also make the comments publicly available by
posting a copy of all comments on http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Address any questions to Julie Brewer,
Chief, Policy and Program Development Branch, Child Nutrition Division,
Food and Nutrition Service, Department of Agriculture, 3101 Park Center
Drive, Alexandria, VA 22302 or by telephone at 703-305-2590. A
regulatory cost-benefit analysis was completed for this rule. It will
be available at http://www.regulations.gov as part of the docket
history for this interim rule.

SUPPLEMENTARY INFORMATION: The Reauthorization Act (Pub. L. 108-265;
June 30, 2004) phased-in mandatory direct certification provisions with
the Food Stamp Program \1\ and made children participating in certain
other programs categorically eligible for free school meals. In order
to provide readers with a chronological account of direct
certification, this preamble begins with a history of direct
certification which includes a discussion of the relevant changes made
in the Reauthorization Act. These amendments are intended to streamline
the certification and verification processes by reducing paperwork for
both program administrators and households by eliminating the need for
submission of free and reduced priced meal applications by these
households.
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\1\ While the Food, Conservation and Energy Security Act of
2008, Public Law 110-234, renamed the Food Stamp Program as the
Supplemental Nutrition Assistance Program, historical references are
to the Food Stamp Program, reflecting the Reauthorization Act's
language.
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This rule is being issued as an interim rule as authorized by
section 501(b) of the Reauthorization Act and because of the specific
implementation dates therein. The Reauthorization Act also required
that regulations be promulgated within two years of enactment which was
2006. In order to accommodate the statutory deadlines imposed for fully
phasing-in direct certification with SNAP and to provide access to free
meals to children newly added as categorically eligible, the Department
implemented the non-discretionary provisions in the Reauthorization Act
through guidance as discussed below. In addition, by issuing the
guidance, the Department complied with the implementation requirements
established in 501(a) of the Reauthorization Act. The delay in issuing
this interim rule enabled the Department to develop it using data from
the direct certification reports to Congress as well as address issues
raised by State and local agencies about the direct certification
process as implemented. The Department strongly supports providing any
opportunity for public comment from interested parties, which is
afforded through the interim rule process. Changes resulting from
comments and from experience based on the interim rule would be
implemented through a future final rule.

I. History

Eligibility Determinations

Until 1981 to receive free and reduced price meals or free milk for
their children, households were required by statute to complete an
application for free or reduced price meals or for free milk, providing
income and household size information. The Omnibus Budget
Reconciliation Act of 1981, Public Law 97-35, amended the Richard B.
Russell National School Lunch Act (NSLA) \2\ to include a number of
changes to the free and reduced price meal eligibility process. One of
those changes allowed submission of documentation showing participation
in the Food Stamp Program. This was implemented by permitting
households certified to receive benefits under the Food Stamp Program
to provide their case number to schools in lieu of completing income
information on the free and reduced price meal application. Thus,
children who are members of households certified to receive food stamp
benefits are ``categorically eligible'' for free school meals.
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\2\ The NSLA was renamed in 1999.
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The School Lunch and Child Nutrition Amendments of 1986, Public Law
99-661, made further amendments to the NSLA to mandate categorical
eligibility for free meals and a simplified verification of eligibility

[[Page 22787]]

process for children in food stamp households and children in Aid to
Families with Dependent Children (AFDC) \3\ assistance units. Since the
regulations had already been amended to allow simplified application
and verification procedures for food stamp households, the regulations
were revised to extend these provisions to AFDC households.
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\3\ The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, later replaced the
AFDC program with the Temporary Assistance for Needy Families (TANF)
Program. Please note that categorical eligibility for recipients of
TANF is subject to the limitation in section 9(b)(12)(A)(ii) of the
NSLA, 42 U.S.C. 1758(b)(1)(A)(ii) concerning eligibility standards
that were comparable to or more restrictive than those in effect on
June 1, 1995. This qualification will not be repeated in other
references to TANF in this preamble.
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The Child Nutrition and WIC Reauthorization Act of 1989, Public Law
101-147, again amended the NSLA to respond to concerns expressed by
program operators regarding the volume of paperwork associated with the
Child Nutrition Programs. The NSLA authorized school officials to
certify children eligible for free meals, without further application,
based on documentation obtained directly from the appropriate State or
local agency that the children are part of households receiving
assistance under the Food Stamp Program or AFDC Program. This
certification process is commonly referred to as ``direct
certification.''
Because the Food Distribution Program on Indian Reservations
(FDPIR) is authorized by section 4 of the Food and Nutrition Act of
2008, 7 U.S.C. 2013, the same law authorizing SNAP, formerly the Food
Stamp Program, and because eligible households on and near reservations
have the option of participating in either SNAP or FDPIR, the
Department extended the provisions on categorical eligibility and
direct certification to include FDPIR households.

Reauthorization Act 2004 Changes

In 2004, the Reauthorization Act made several amendments to the
NSLA to improve the integrity of the free and reduced price meal
certification and verification processes, without hindering access of
low-income children. Section 104 of the Reauthorization Act added
section 9(b)(4) to the NSLA, 42 U.S.C. 1758(b)(4) to require local
educational agencies to directly certify, without further application,
any child who is a member of a household receiving benefits under SNAP.
To facilitate this requirement, an agreement between the State agency
administering SNAP and the State agency or agencies administering the
school meals programs is required. The required direct certification
with SNAP is in addition to the previous and still existing optional
authority for direct certification with TANF and FDPIR.
In accordance with the Reauthorization Act, the requirement to
directly certify children receiving benefits under SNAP was phased-in
based on the enrollment of the local educational agency as follows--
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\4\ All other regulatory citations in this preamble shall be
considered references to Title 7, Code of Federal Regulations,
unless otherwise indicated.

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The provision was effective For school districts with enrollments of
as follows
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At least in school year
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July 1, 2006................. 25,000 students*..... 2005-2006
July 1, 2007................. 10,000 students*..... 2006-2007
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July 1, 2008................. All local educational agencies.
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* From prior year's October data collection as required under 7 CFR
210.8(c)(2).\4\

In addition, the 2004 Reauthorization Act included provisions
making children who are homeless, runaway, or migratory, as determined
by the homeless coordinator for homeless or runaway children or by
officials of the Migrant Education Program (MEP) for migratory
children, categorically eligible for free meals, effective July 1,
2004. To ensure that the affected children could access free meal
benefits as quickly as possible, the Department issued guidance to
implement these statutory provisions. The pertinent memoranda are:
July 19, 2004--Categorical Eligibility for Free Lunches
and Breakfasts of Runaway, Homeless, and Migrant Youth: Reauthorization
2004 Implementation Memo SP 4;
August 16, 2004--Categorical Eligibility for Free Lunches
and Breakfasts for Migrant Children; and
September 17, 2004--Guidance on Determining Categorical
Eligibility for Free Lunches and Breakfasts for Youth Served under the
Runaway and Homeless Youth Act.

These can be reviewed on our Web site--http://www.fns.usda.gov/cnd/Governance/policy.htm.

II. Direct Certification Implementation and Studies

Because of the benefits of direct certification relating to
improving access and reducing paperwork, the Department felt that is
was important to determine both the number of local educational
agencies that were doing direct certification and what percentage of
the total number of children eligible for free and reduced meals they
represented. Studies and surveys conducted by FNS have indicated that,
prior to School Year 2007-2008, a little more than 60 percent of local
educational agencies were using direct certification. Please note that
the majority of these studies were conducted prior to mandatory direct
certification with SNAP. This data has given FNS a baseline to measure
the success of mandatory direct certification with SNAP. Data for
School Year 2009-2010 showed that 83 percent of local educational
agencies conduct direct certification. Studies and sources include--
``Analysis of Verification Summary Data SY2004-05'' (May 2006)
which may be found at http://www.fns.usda.gov/oane/menu/Published/CNP/FILES/CNVerification.pdf;
``Preliminary Report on the Feasibility of Computer Matching in the
National School Lunch Program'' (January 2005) which may be found at
http://www.fns.usda.gov/oane/menu/Published/CNP/FILES/NSLPDataMatch.pdf;
``Direct Certification in the National School Lunch Program--
Impacts on Program Access and Integrity Study of Direct Certification
in the National School Lunch Program'' (October 2003, Economic Research
Service, USDA, contracted study) which may be found at http://www.ers.usda.gov/Publications/EFAN03009;
``Study of Direct Certification in the National School Lunch
Program'' (September 2000) which may be found

[[Page 22788]]

at http://www.fns.usda.gov/oane/menu/Published/CNP/FILES/directcert.pdf; and
``Direct Certification in the National School Lunch Program: State
Implementation Progress Report to Congress'' (December 2008) found at
http://www.fns.usda.gov/oane/menu/Published/CNP/FILES/DirectCert08.pdf.
``Direct Certification in the National School Lunch Program: State
Implementation Progress Report to Congress--October 2009'' found at
http://www.fns.usda.gov/ora/MENU/Published/CNP/FILES/NSLPDirectCertification2009.pdf.
``Direct Certification in the National School Lunch Program: State
Implementation Progress School Year 2009-2010'' found at http://www.fns.usda.gov/ora/menu/Published/CNP/FILES/DirectCert2010.pdf.

III. Current Procedures for Direct Certification and Categorical
Eligibility

Methods Used for Direct Certification

The studies cited in section II indicated that the methods commonly
used for direct certification involve matching and non-matching
processes. In the non-matching method, the States' assistance agencies
generate lists or databases of TANF and SNAP households with school age
children. The assistance agencies use the lists/databases to send
households a letter that includes the necessary direct certification
documentation. The letter instructs the household to provide the letter
to the school if they want free meals or milk for their children.
Children in households that provide the letters to the school or local
educational agency are certified eligible for free meals or milk based
on this documentation. This procedure is considered the ``letter
method.''
In the matching method, the State assistance agency databases/lists
of SNAP or TANF households with school age children are matched at the
State or local educational agency level against student enrollment
databases or lists. Most systems involve a matching of two or three
identifiers, such as the children's names and birth dates and/or
addresses. Matching at the State level is generally automated, while
matching at the local educational agency level may be a manual process,
especially in smaller districts or those districts with fewer families
receiving benefits from SNAP, TANF or FDPIR. Once eligible children
have been identified through direct certification, their parents or
guardians are notified, in writing by the local educational agency,
that their children are eligible to receive free meals without any
additional application. Further, these households are not subject to
verification since the local educational agency has already documented
that the child is a member of a household receiving other programs'
benefits.

Frequency of Direct Certification Efforts

Typically, direct certification is conducted at or around the
beginning of the school year. However, a number of States and local
educational agencies have the capability of doing direct certification
more frequently, on a monthly or even daily basis.

Applications With Case Numbers

Households receiving assistance from SNAP, TANF or FDPIR may also
submit an application with their case number(s) for the child(ren) on
the free and reduced price meal or free milk application to establish
their categorical eligibility for free meals or milk. The only other
information needed on the application is each child's name and the
signature of an adult household member. Should the application be
selected for verification of eligibility, the household must submit
proof of participation in SNAP, TANF or FDPIR in order to continue
program participation.

IV. Requirements for Direct Certification With SNAP

Scope of Mandatory Direct Certification With SNAP

All participating NSLP and School Breakfast Program (SBP) schools,
including public and private non-profit schools and residential child
care institutions (RCCIs), must implement the mandatory direct
certification provisions for children who are members of households
receiving benefits from the SNAP. RCCIs that operate a day school must
conduct direct certification for day students. However, RCCIs that only
have residential students are exempted from this requirement.
Residential students would not receive SNAP benefits since they are
residing in an institution. This exemption is found in this interim
rule at paragraph 245.6(b)(1)(ii).
The administering entity for the private schools or RCCIs should
contact their State agency to work out the logistics for obtaining
information from the agency administering SNAP about the children
enrolled in their schools. Please note when determining claiming
percentages for Provision 2 or Provision 3, which are the special
assistance certification and reimbursement alternatives permitted in
Sec. 245.9, direct certification is required only in base years. This
provision may be found at paragraph 245.6(b)(1)(v).

Frequency of Mandatory Direct Certification With SNAP

As indicated earlier, the NSLA requires that all children in
households receiving SNAP benefits be directly certified for free meals
and paragraph 245.6(b) is amended by this rule to address mandatory
direct certification of children receiving benefits from SNAP.
Because direct certification is a useful tool for schools and
reduces paperwork and increases participation, the Department's
ultimate goal for direct certification is for State and local
educational agencies to have the capability to conduct on-going direct
certification with SNAP, TANF and FDPIR through computer matching that
provides the most current information about households receiving
benefits from those programs. Once an on-going system becomes
operational, the local educational agency would be able to promptly
determine when children who were not already certified for free meal
benefits become eligible, based on membership in a household recently
approved for benefits from SNAP, TANF or FDPIR. The eligibility of
children previously directly certified is not affected by more frequent
direct certification because, once eligibility is established, it is in
effect for the entire school year and up to thirty (30) operating days
in the following school year.
To this end, this interim rule requires that local educational
agencies conduct direct certification with SNAP at least three times
during the school year (July 1 to June 30) beginning no later than
School Year 2011-2012. This increased number of matching efforts has
the potential to facilitate participation of children in the school
meals programs. Of course, more frequent direct certification efforts
are permissible and encouraged.
The efforts must be made at or around the beginning of the school
year; three months after the beginning of the school year; and six
months after the beginning of the school year. For example, if the
school classes begin on August 15th, the initial direct certification
effort would be in July or August; the second would be in October or
November and the last in January or February. Direct certification
efforts are required for children who were not initially directly
certified and who are currently reduced price or paid. If the local
educational agency has the capability, the status of any newly enrolled
child must be checked for SNAP eligibility at the time

[[Page 22789]]

of enrollment. If this is not possible, the household must be provided
with an application so that the child's benefits are not delayed until
the next scheduled direct certification update.
Any newly eligible children identified in matches made subsequent
to the beginning of the school year must be certified for free meals
and the local educational agency must promptly notify their parents or
guardians in writing of the new status. This includes children who had
been certified for reduced price meals but who are subsequently
identified as receiving SNAP benefits. The requirement for the
frequency of direct certification efforts with SNAP is found at
paragraph 245.6(b)(3) of this interim rule. Please note direct
certification with FDPIR and TANF remains optional. The authority for
direct certification with FDPIR or TANF is found at paragraph
245.6(b)(2).

Use of the Letter Method

As discussed earlier, some State and local SNAP or other assistance
agencies currently provide letters to households as their method of
direct certification. The household takes the letter indicating its
receipt of SNAP benefits to the local educational agency in lieu of an
application. Studies show that states have been able to improve the
effectiveness of their direct certification process by changing from
the letter method to an electronic matching approach. Further, since
the original availability of direct certification in the early 1990s,
sharing information between SNAP and other assistance agencies and
State/local educational agencies has become easier and more cost
effective.
A 2007 study, Data Matching in the National School Lunch Program:
2005 Volume 1: Final Report, available at http://www.fns.usda.gov/oane/menu/Published/CNP/FILES/DataMatching-V1.pdf. discussed the
effectiveness of the various direct certification methods. This study
showed that States with mandatory statewide State-level matching had
the highest rates of direct certification, with 74 percent of
categorically certified children directly certified. The letter method
resulted in a significantly lower rate of direct certification, with
only 52 percent of categorically certified children.
Therefore, this interim rule requires, at paragraph
245.6(b)(1)(iii), that, in School Year 2011-2012, all State agencies
phase out the letter method as their method for direct certification
with SNAP. And for School Year 2012-2013, the letter method can no
longer be used to conduct direct certification. This provision is
consistent with the requirement in the Healthy, Hunger-Free Kids Act of
2010 (Pub. L. 111-296; December 13, 2010). All State agencies must have
a method to exchange eligibility information from SNAP more directly
with the local educational agency through some type of automated data-
matching process. Currently, there are a range of systems in use.
However, State and local agencies may continue to provide letters to
families as a secondary method along with use of automated system,
especially during the initial use of an automated system. The
additional notification to families would help to ensure that they were
aware of their children's categorical eligibility.
Please note that the use of the letter method only as a secondary
method of identifying categorical eligibility only applies to SNAP. The
letter method may continue to be used as the primary method for other
sources of categorical eligibility.

Extension of Eligibility to All Children in the Household

Section 9(b)(12) of the NSLA provides for categorical eligibility
for children who are members of households receiving assistance from
SNAP, FDPIR, and TANF. The implementing regulations required that a
child be a member of the household as determined by the assistance
program in order to be categorically eligible for free school meals.
For direct certification, this has been an individual match. For
applications, each child had to have a case number listed in order to
be categorically eligible. For consistency, we did not extend
categorical eligibility to newly enrolled siblings in the subsequent
school year.
We have heard from various program operators and other stakeholders
that this interpretation is problematic administratively and
unnecessarily omits eligible children from the direct certification
process. For direct certification, school-age children from the same
household who are not identified through the match are most likely
receiving SNAP or other benefits but are not matched because of minor
differences in the identifying information used in the match.
Individual eligibility also results in households with some
children directly certified and others for whom an application must be
submitted. If some of the children in the family are directly
certified, the family may not realize until after school starts that an
application is needed for their other children. This sometimes requires
the family to pay for meals for the uncertified children until the
application is submitted and approved.
For local educational agencies, maintaining different types of
eligibility for direct certification and application-based records for
the same household may be difficult. It also complicates reporting and
may result in misleading information for determining verification
sample sizes and other purposes.
Therefore, under this interim rule, if one or more children in the
household is also a member of a family receiving assistance under SNAP,
FDPIR or TANF, all school-aged children in the household are considered
categorically eligible for free meals or free milk. This applies for
both direct certification and applications with case numbers. The local
educational agency must extend eligibility for free meals to all
children that can be identified as members of a household on an
application for free or reduced price meals or free milk. If the local
educational agency does not have a prior application to refer to,
school district enrollment records are acceptable to determine if there
any additional children in the household who were not directly
certified. For households submitting applications with case numbers for
some children, the local educational agency must certify all children
as categorically eligible for free meals and disregard income
information. This requirement is found at Sec. 245.2 (definition of
``Documentation''), paragraph 245.6(b)(7) and paragraph 245.6(c)(5).

Agreement Between SNAP State Agency and the State Agency Administering
the School Meals Programs

To facilitate mandatory direct certification of children receiving
benefits from SNAP, the NSLA requires, at section 9(b)(4)(A), 42 U.S.C.
1758 (b)(4)(A), that the State agency responsible for administering
SNAP and the State agency responsible for administering the school
meals programs enter into an agreement to facilitate the mandatory
direct certification with SNAP. The Reauthorization Act included a
parallel conforming amendment in section 11(u) of the Food and
Nutrition Act of 2008 (formerly the Food Stamp Act) 7 U.S.C. 2020(u).
As specified in the NSLA, the agreements were to be in place by
July 1, 2005. In a memorandum dated April 19, 2005 (SP 14, Agreement
Checklist for Direct Certification and Direct Verification of Children
in Food Stamp Households; http://www.fns.usda.gov/cnd/governance/Reauthorization_Policy_04/Reauthorization_04/2005-04-19.pdf), the
Department provided guidance on initial items that the State agencies
responsible for administering

[[Page 22790]]

the school meals programs and the State agencies administering SNAP
should include in the agreement. All State administering agencies,
including those responsible for non-public schools or residential child
care institutions, must have an agreement with the State agency
administering SNAP. In order to fully support effective direct
certification efforts, this interim rule requires that the agreement
address how direct certification will be conducted, including
frequency; what notification method(s) will be used; how use of the
letter method will be phased-out as the primary method and what system
will replace it; how the system and procedures will identify additional
children in the household who are categorically eligible based on one
household members' receipt of benefits; and other specifics needed to
ensure efficient operation of direct certification.
The methods used to conduct direct certification can always be
improved and expanded and should not be considered static. The more
children who are identified as eligible through direct certification
assists both families and local educational agencies by simplifying the
certification process and by more accurately targeting free meal
benefits.
As a result of this interim rule, the State agencies administering
the school meals programs may need to amend their existing agreements
with the State agencies responsible for SNAP to set up procedures to
conduct more frequent direct certification. Because the addenda to the
agreement would depend on the system used, State agencies must
determine what amendments are needed. The requirement for the agreement
is found at paragraph 245.6(b)(1)(iv) of this interim rule.

V. Requirements for Certification of Certain Homeless, Migrant, Runaway
and Head Start Children

The Reauthorization Act also extended categorical eligibility and
direct certification to additional programs for homeless, migrant and
runaway children.\5\ In most cases, we expect that these children will
be certified through direct contact with official sources as discussed
below. However, it is also possible that the families of some of these
children might identify themselves through the free/reduced price
application as categorically eligible. Paragraph 245.6(b)(5) of this
interim rule specifies what documentation is needed to substantiate
certification with appropriate officials. Officials responsible for
free meal or free milk eligibility determinations are not responsible
for making the determination that a child is homeless, migrant or a
runaway. Rather, they are to coordinate with and accept the
documentation from a person or agency authorized to make those
determinations.
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\5\ Please note that the Healthy, Hunger-Free Kids Act of 2010
extended categorical eligibility to foster children. This provision
was implemented through a policy memorandum, SP 17-2011, CACFP 08-
2011, SFSP 05-2011-Revised, Categorical Eligibility of Foster
Children, dated March 11, 2011. This new requirement will be
incorporated into the regulations in a separate rulemaking.
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Homeless Children

Section 107 of the Reauthorization Act amended the NSLA to extend
categorical eligibility for free school meals to children who are
homeless, as defined under section 725(2) of the McKinney-Vento
Homeless Assistance Act 42 U.S.C. 11434a(2). The McKinney-Vento
Homeless Assistance Act defines as homeless individuals those lacking a
fixed, regular and adequate nighttime residence.
In accordance with requirements of the McKinney-Vento Homeless
Assistance Act, each local educational agency must designate a local
educational liaison for homeless children and youth. The local liaison
serves as one of the primary contacts between homeless families and
school staff and district personnel, shelter workers and other service
providers. The shelter director or local educational liaison for
homeless children and youth provides the necessary documentation for
direct certification to be used by local educational agencies. A
memorandum dated July 19, 2004, ``SP 4 Categorical Eligibility for Free
Lunches and Breakfasts of Runaway, Homeless and Migrant Youth (http://www.fns.usda.gov/cnd/Governance/policy.htm) advised State agencies of
categorical free meal or free milk eligibility provisions relating to
homeless children and youth mandated by the Reauthorization Act.
School officials must accept documentation which meets regulatory
requirements and confirms that identified children are homeless from
the local educational agency's liaison for homeless children. School
officials also must accept a letter or other document from the director
of the homeless shelter where the child resides. This provision is
found at paragraph 245.6(b)(6)(ii). In addition, this interim rule
provides at paragraph 245.6(b)(5) that documentation to substantiate
free meal or milk eligibility includes the child's name or a list of
names, a statement that certifying that the children are eligible for
that program and the signature of the local educational liaison or the
director of the homeless shelter and the date of the signature. This
rule provides that documentation is acceptable in lieu of a free and
reduced price meal or free milk application. We continue to encourage
local educational agencies to identify and work with the local
educational agency liaison for homeless children and with directors of
homeless shelters where children may reside to expedite benefits to
homeless children.

Runaway Children

Section 107 of the Reauthorization Act made children served by a
runaway and homeless youth grant program established under the Runaway
and Homeless Youth Act (42 U.S.C. 5701 et seq.) categorically eligible
for free school meals. A child who is a runaway must be participating
in a runaway and homeless youth grant program under the Runaway and
Homeless Youth Act to be categorically eligible for free meal benefits
and for direct certification. The Family and Youth Services Bureau
(FYSB), part of the Administration on Children and Families of the
United States Department of Health and Human Services, awards funding
to local community agencies to offer services to young people and their
families. There are three grant programs for runaways under that
title--Basic Center Program, Transitional Living Program and the Street
Outreach Program. The agencies receiving grants under these three
programs are referred to as either FYSB grantees, or Runaway and
Homeless Youth (RHY) service providers.
Additionally, the 2003 Reauthorization of the RHY Program directed
FYSB to coordinate with local educational agency liaisons under the
McKinney-Vento Homeless Assistance Act to assure that RHY are provided
information about the educational services available to them and to
ensure they receive support services guaranteed under the law.
Therefore, the first source for documentation for these children is the
local educational agency's homeless liaison.
This interim rule provides in paragraph 245.6(b)(5)(iii) that
documentation to substantiate free meal or milk eligibility must
consist, at a minimum, of the youth's name, or a list of names, a
statement certifying that the children are eligible for that program,
the signature of the McKinney-Vento local educational agency's liaison
or the RHY service provider(s) and the date signed. Documentation which
meets the regulatory requirements must be

[[Page 22791]]

accepted in lieu of a free meal or milk application. It is important
that schools/local educational agencies become familiar with their
local RHY service providers and their McKinney-Vento local educational
agency's liaison in order to facilitate the service of free school
meals or milk for youth in the programs administered by the FYSB.

Migrant Children

The Reauthorization Act extended categorical eligibility to
migratory children as defined in section 1309 of the Elementary and
Secondary Education Act of 1965 (ESEA). In general, a migrant child is
one who has moved across local educational agency boundaries, within
the last three years, to accompany or join a parent or guardian who has
moved to seek or obtain temporary or seasonal work in agriculture or
fishing. Please note, however, that it is not necessary for local
educational agency personnel to apply the ESEA definition because there
are State educational agency and local MEP staff who are responsible
for identifying (and maintaining supporting documentation) for each
eligible migrant child under ESEA.
As recognized in paragraph 245.6(b)(6)(ii) of this interim rule,
local educational agencies will benefit from working directly with MEP
coordinators or, where appropriate, the State MEP director, to identify
migrant children and to document their eligibility for free school
meals. Pursuant to paragraph 245.6(b)(5)(iii), local educational
agencies must accept documentation that the children are migrant
children from the MEP coordinator. Such documentation of migrant status
to substantiate free meal eligibility may be a list that includes each
child's name, a statement certifying that the children are eligible for
that program, and the signature of the MEP coordinator or the State MEP
director and the date of the signature. This list serves as
documentation of categorical eligibility for or migrant children.

Newly Enrolled Homeless, Runaway or Migrant Students

It is important that newly enrolled homeless, runaway and migrant
children in the local educational agency be identified and certified
for free meals or milk as promptly as possible. The Eligibility
Guidance for School Meals Manual (http://www.fns.usda.gov/cnd/Guidance/default.htm) indicates that, to the extent possible, applications
should be processed immediately. This includes determination of
eligibility through sources such as the homeless liaison. Local
educational agencies need to establish procedures with the
coordinators/liaisons to assure they are notified when the
coordinators/liaisons identify a new homeless, runaway or migrant child
so these children may be promptly certified at any time during the
school year. Children also may be determined eligible through the
standard application process. If the child is not indentified through
coordinators/liaisons and an application is not submitted, paragraph
245.6(d) of the existing regulations allows school officials to
complete an application on the child's behalf noting the child is
homeless, etc. and giving the source for his/her knowledge. This must
be done only on a case-by-case basis.

Children Enrolled in Head Start Programs

This interim rule also adds as categorically eligible children who
are enrolled as participants in Head Start programs authorized under
the Head Start Act. Until enactment of the Improving Head Start for
School Readiness Act of 2007 (Pub. L. 110-134), only children enrolled
in Head Start who met that program's prescribed low-income criteria
were categorically eligible for free school meals. However, section
29(c) of Public Law 110-134 amended section (9)(b)(12)(A)(iii) and
section 17(c)(5) of the NSLA to extend categorical eligibility for free
meals and free milk to all Head Start enrollees. The original policy on
limited categorical eligibility was issued in a memorandum dated April
14, 1995 and the most recent policy was issued in a memorandum dated
May 16, 2008, ``SP-23-2008, CACFP 07-2008, SFSP 06-2008, Automatic
Eligibility for Free Meal Benefits Extended to All Children Enrolled in
Head Start'' (http://www.fns.usda.gov/cnd/Governance/policy.htm). We
are now incorporating the most recent statutory requirement into the
regulations. Therefore, a definition of a Head Start child is added to
Sec. 245.2 and a definition of categorically eligible is added which
states that children enrolled in Head Start are categorically eligible
for free school meals.

VI. Other Provisions and Technical Amendments

Confidentiality and Prevention of Overt Identification

Paragraph 245.6(b)(9) of this interim rule addresses the
confidentiality of information obtained through the direct
certification process and the prevention of overt identification of
children eligible for free or reduced-price meals or free milk. This
paragraph incorporates the provisions found in paragraph 245.6(b)(1)
prior to the effective date of this rule. However, the wording has been
revised to improve readability and to clarify that information obtained
about the child's participation in SNAP, FDPIR or TANF must be used for
direct certification purposes only and information regarding a child's
eligibility status in the Child Nutrition Programs may be used or
disclosed solely in accordance with the disclosure provisions in
section 9(b)(6) of the NSLA.

Providing Application Materials

The existing provision that schools are not required to provide
application materials to children who were approved for free meals
through the direct certification process was moved in this interim rule
from paragraph 245.6(b)(2) to paragraph 245.6(b)(10).

Notice of Approval

The existing provision concerning the notification of households in
writing of children determined eligible for free meals or free milk
through the direct certification process was moved from paragraph
245.6(b)(2) to paragraph 245.6(c)(6)(ii). The current provision also
requires that households have an opportunity to decline school meals
benefits for their children. A written notice to the household is not
required if the direct certification documentation is provided to the
school by the household, such as a letter indicating receipt of
benefits from SNAP. By providing the school with documentation, the
household is indicating that they want free meals or milk for their
children. Paragraph 245.6(c)(5) is also being revised in this interim
rule to include the new categories of children (homeless, Head Start,
runaways and migrants) who may be directly certified.

Definitions

The following outlines changes, made by Public Law 108-265 and
Public Law 110-134, which are addressed in Sec. 245.2, Definitions, to
reflect statutory amendments and for clarification purposes.
Categorically eligible--This rule adds a new definition,
``Categorically eligible,'' in Sec. 245.2. ``Categorically eligible''
means that children are eligible for free meals or free milk, as
applicable, based on the child's status as--
A member of a household receiving assistance under SNAP or
FDPIR or a member of a family receiving benefits under the TANF
program;
An enrollee in the Head Start Program;

[[Page 22792]]

A runaway child served by grant programs established under
the Runaway and Homeless Youth Act;
A homeless child as defined under the McKinney-Vento
Homeless Assistance Act; or
A migratory child as specified under the Migrant Education
Program.

This definition also clarifies that categorical eligibility and
automatic eligibility may be used synonymously.

Direct certification--This rule adds a new definition of ``Direct
certification'' in Sec. 245.2. Although the regulations have not
previously included a definition for this term, it has generally been
understood to mean the process of determining eligibility for certain
categories of children by obtaining information directly from the State
or local agency authorized to certify children's status as being
members of households receiving assistance from SNAP, TANF or FDPIR. A
child is directly certified in lieu of completion of an application.
Children who are homeless, migrant, or runaway or enrolled in a Head
Start Program are directly certified by obtaining information from an
individual or agency to certify that the child is participating in one
of these programs.
Documentation--Paragraph (2) of the definition of ``Documentation''
in Sec. 245.2 defines documentation for direct certification purposes
as the name of the child; a statement certifying that the child is
receiving assistance from SNAP, FDPIR or TANF program; information in
sufficient detail to match the child attending school in the local
educational agency; the signature of the appropriate SNAP, FDPIR, or
TANF official; and the date. The definition also clarifies that when
the signature is impracticable to obtain, such as in computerized
operations providing an electronic signature, other arrangements may be
accepted if the local educational agency has a method to ensure that a
responsible official from the assistance program can attest to the
accuracy of the information provided. This interim rule revises the
definition of ``Documentation'' to address acceptable documentation
from SNAP, FDPIR or TANF Program; acceptable documentation for children
in a family with at least one member receiving benefits from SNAP,
FDPIR or TANF; acceptable documentation for Head Start children,
homeless and migrant children and runaway children who participate in
the respective Federal program.
Head Start child, Homeless child, Migrant child and Runaway child--
Definitions for each of these are added consistent with the intent of
Section 107 of the Reauthorization Act.

Technical Amendments

Pursuant to section 12(a) of the NSLA and current regulations,
local educational agencies agree to maintain files of currently
approved and denied applications and documentation for direct
certification as part of their agreement to administer the program at
the school district level. Paragraph 210.9(b) is being revised by this
rule to include the new categories of children who may be directly
certified (i.e., homeless, certain runaway and migrant children and
Head Start enrollees). The review requirements in paragraph 210.18(g)
are also amended to add the new categories of children who may be
directly certified. Paragraph 210.18(g)(1)(B) is also being amended to
conform with changes made in the November 13, 2007, interim regulation
(72 FR 63785) that established year-long eligibility for free and
reduced price meals.
We are also using this opportunity to clarify the relationship
between delayed implementation of Provision 2 as permitted in paragraph
245.9(b)(6)(ii) and use of a child's prior year's eligibility status
for the first 30 operating days in the new school year (``carryover'')
in paragraph 245.6(c)(2). Delayed implementation permits schools
establishing claiming percentages for Provision 2 to charge
participating students for meals in the first claiming period of the
base year. This exception is permitted to assist schools in securing
completed free and reduced price applications from households which
might not otherwise submit an application if there is no charge for
meals. With the State agency's approval, schools may delay implementing
Provision 2 for a period not to exceed the first claiming period of the
base year. When the carryover provision was added in the interim
rulemaking dated November 13, 2007, (72 FR 63793), we did not address
how it applied to delayed implementation. Therefore, we are revising
paragraph 245.6(c)(2) to indicate that carryover is not required when
schools are approved to use the delayed implementation in relation to
Provision 2.
We are also making technical amendments to paragraph
210.18(g)(1)(i)(A)(3) to reflect the recent changes to the carryover
provision that no longer permit the State agency to establish a
different timeframe. Other technical changes are to correct an omission
in the introductory text of paragraph 210.19(c) by adding a reference
to paragraph 210.19(c)(iii), which was inadvertently left out, and to
correct a citation in the definition of ``School in severe need'' in
Sec. 220.2 that should refer to paragraph 220.9(d), not paragraph
220.9(e).
We are also using this interim rule to correct a number of obsolete
names, addresses, terms of usage, and spelling errors that may appear
in parts 210, 215, 220, 225, 226, and 245.
As mandated by the Food, Conservation and Energy Act of 2008,
effective October 1, 2008, the Food Stamp Program was renamed as the
Supplemental Nutrition Assistance Program or SNAP. This interim rule
amends parts 210, 215, 225, 226, and 245 to reflect this change.
The new name of the General Accounting Office, the Government
Accountability Office (GAO), is made to paragraphs 225.6(h)(vii) and
226.10(d). This interim rule also replaces the term ``handicap'' with
the term ``disability'' in paragraphs 225.8(g)(i), 225.15(e),
226.23(c)(5), 226.23(e)(2)(iv), and 226.23(h). Other corrections are a
reference to CACFP in paragraph 226.23(e)(1)(iii)(E) and the spelling
of ``labeled'' in paragraph 225.15(e).
Paragraph 245.3(b) is also revised to improve the readability of
regulations and to delete a procedure applicable only to single child
applications, which may no longer be used by local educational
agencies.

VII. Procedural Matters

Executive Order 12866 and Executive Order 13563

Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This interim rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget.
Regulatory Impact Analysis
Need for Action
The 2004 Reauthorization Act requires local educational agencies to
establish systems to directly certify SNAP participant children for
free

[[Page 22793]]

school meals no later than School Year 2008-2009. The Reauthorization
Act also extends categorical eligibility and provides for the direct
certification of certain homeless, migrant, or runaway children. This
interim rule makes necessary changes to implement these statutory
requirements.
Benefits
The rule is expected to enhance access to the school meals and milk
programs by needy children, decrease duplicative paperwork for
households, decrease the administrative costs of processing and
reviewing applications, and improve program integrity. Mandatory direct
certification based on SNAP participation increased certifications for
free school meals by an estimated 190,000 children in School Year 2008-
2009. The interim rule's requirement that local educational agencies
conduct direct certification at least three times per year beginning in
School Year 2011-2012 may increase the number of children certified for
free meals (for at least part of the school year) by an additional
270,000.
Costs
Direct certification increases the number of children certified to
receive free school meals, which raises the cost of federal meal
reimbursements to participating schools. State and local education,
SNAP, and child welfare agencies also incur administrative costs
associated with direct certification. Total meal reimbursement and
administrative costs are estimated to have increased by more than $114
million over the five fiscal years from 2005 through 2009. (State SNAP
and Child Nutrition Agencies begin to incur administrative costs in
fiscal year 2005, the year prior to the mandatory implementation of
direct certification by large LEAs under the terms of the 2004
Reauthorization Act.) The estimated ten-year cost of the rule, through
FY 2014, is nearly $760 million. More than $730 million of this amount
is the cost of Federal reimbursement to schools for free meals served
to newly certified children.
Regulatory Flexibility Act
This interim rule has been reviewed with regard to the requirements
of the Regulatory Flexibility Act. It is certified that this interim
rule will not have a significant economic impact on a substantial
number of small entities. Determining children eligible for free meals
or free milk by obtaining eligibility information directly from another
agency will reduce duplicative paperwork for households who have
already established their need for assistance to certain programs which
serve low-income children and adults, and will streamline the free and
reduced price application and certification process for schools. The
provisions of this rule will enhance access to these programs by needy
children. Although there may be some initial burdens associated with
implementation of this rule, the burdens will not be significant and
will be outweighed by the long-term benefits of direct certification
and expanded categorical eligibility.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
establishes a requirement for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. Under section 202 of the UMRA, the Department
generally must prepare a written statement, including a cost-benefit
analysis. This is done for proposed and final rules that have Federal
mandates which may result in expenditures of $100 million or more in
any one year by State, local, or tribal governments, in the aggregate,
or by the private sector. When this 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. It must
then adopt the least costly, most cost-effective or least burdensome
alternative that achieves the objectives of the rule.
This rule contains no Federal mandates of $100 million or more in
any one year (under regulatory provisions of Title II of the UMRA) for
State, local, and tribal governments or the private sector. Thus, this
interim rule is not subject to the requirements of sections 202 and 205
of the UMRA.
Executive Order 12372
The National School Lunch Program, Special Milk Program, School
Breakfast Program Summer Food Service Program, and Child and Adult Care
Food Program are listed in the Catalog of Federal Domestic Assistance
under Nos. 10.555, 10.556, 10.553, 10.559 and 10.558, respectively. For
the reasons set forth in the final rule in 7 CFR part 3015, subpart V,
and final rule related notice at 48 FR 29114, June 24, 1983, these
programs are included in the scope of Executive Order 12372, which
requires intergovernmental consultation with State and local officials.
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 regulation
describing the agency's considerations in terms of the three categories
called for under section (6)(b)(2)(B) of Executive Order 13132.
Prior Consultation With State Officials
Prior to drafting this rule, we received input from State and local
agencies at various times. The Child Nutrition Programs (CNP) are State
administered, federally funded programs. Staff from FNS' headquarters
and regional offices had informal and formal discussions with State and
local officials on an ongoing basis regarding program implementation
and performance. This arrangement allows State and local agencies to
provide feedback that helps form the basis for any discretionary
decisions in this and other CNP rules. Additionally, we convened a
meeting of representative Federal and State administrators of SNAP and
CNP State directors to discuss their current direct certification
procedures. Department officials have also provided overviews of the
changes made in the certification process at meetings attended by local
educational agency representatives, advocacy groups and other
interested parties. These sessions provided FNS officials with insights
into areas of concerns from these groups and allowed us to obtain
background into how local and State administrators are currently doing
certification and direct certification and how the statutory changes
will affect these procedures.
Nature of Concerns and the Need To Issue This Rule
State and local agencies are generally concerned about improving
the integrity of the free and reduced price meal eligibility process
without hindering access to the programs. They also are concerned about
the paperwork and financial burdens placed on food service to determine
free and reduced price meal eligibility and the initial cost of
implementing direct certification.
The issuance of this regulation is required by amendments made to
the Richard B. Russell National School Lunch Act by the Reauthorization
Act. Prior to those amendments, program officials were permitted to
directly certify children in households receiving benefits from SNAP,
TANF and FDPIR. This rule now requires local educational agencies to
directly certify children in households receiving benefits from SNAP
and permits the direct certification of children in households

[[Page 22794]]

receiving TANF or FDPIR benefits, as well as homeless, some runaway
children and migrant children.
Extent to Which We Meet These Concerns
By extending categorical eligibility to all children in a family
based on one (or more) children's receipt of SNAP, FDPIR or TANF
benefits, access to free meals is improved and the application process
streamlined for both families and local educational agencies. Integrity
is also addressed in this provision because the large majority of these
other children are otherwise income eligible for free meals or are
actually receiving assistance from these programs but were not readily
identified. Additionally, children whose eligibility is determined
through the direct certification process are exempt from the
verification of eligibility process which reduces the burden placed on
households. The inclusion of all children in the family as
categorically eligible if other children are identified through direct
certification eliminates the need for an application and further
reduces the number of applications subject to verification. Local
educational agencies can reduce the number of applications/households
that are subject to verification by using direct certification as much
as possible. These amendments will reduce paperwork and financial
burdens placed on local educational agencies.
This rule is intended to have a preemptive effect on any State law
that conflicts with its provisions or that would otherwise impede its
full implementation. To the extent the rule includes discretionary
changes, the Department has established compliance timeframes which
give due consideration to State agency processes for notification of
customers and stakeholders for the implementation of the new procedures
in local offices.
Executive Order 12988
This interim rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It 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 impede its full
implementation. This rule is not intended to have retroactive effect
unless that is specified in the Effective Date section of the preamble
of the rule. Before any judicial challenge to the provisions of this
rule or the application of its provisions, all administrative
procedures that apply must be followed. The only administrative appeal
procedures relevant to this interim rule are the hearings that local
educational agencies must provide for decisions relating to eligibility
for free and reduced price meals and free milk (Sec. 245.7 for the
NSLP, SBP, and SMP in schools).
Civil Rights Impact Analysis
FNS has reviewed this interim rule in accordance with the
Department Regulations 4300-4, ``Civil Rights Impact Analysis,'' to
identify any major civil rights impacts the rule might have on children
on the basis of race, color, national origin, sex, age or disability.
After a careful review of the rule's intent and provisions, FNS has
determined that this interim rule facilitates the participation of all
eligible participants and does not establish any new burdens.
Executive Order 13175
USDA will undertake, within six months after this rule becomes
effective, a series of Tribal consultation sessions to gain input from
elected Tribal officials or their designees concerning the impact of
this rule on Tribal governments, communities and individuals. These
sessions will establish a baseline of consultation for future actions,
should any be necessary, regarding this rule. Reports from these
sessions for consultation will be made part of the USDA annual
reporting on Tribal Consultation and Collaboration. USDA will respond
in a timely and meaningful manner to all Tribal government requests for
consultation concerning this rule and will provide additional venues,
such as webinars and teleconferences, to periodically host
collaborative conversations with Tribal leaders and their
representatives concerning ways to improve this rule in Indian country.
The policies contained in this rule would not have Tribal
implications that preempt Tribal law.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 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 collection of information unless it displays a current,
valid OMB control number. This is a new collection. The new provisions
in this rule, which do increase burden hours, affect the information
collection requirements that will be merged into the National School
Lunch Program, OMB Control Number 0584-0006, expiration date
March 31, 2012, and the Determining Eligibility for Free and Reduced
Price Meals, OMB Control 0584-0026, expiration date March 31,
2013. The current collection burden inventory for the National School
Lunch Program (7 CFR 210) is 11,846,904; and the current collection
burden inventory for Determining Eligibility for Free and Reduced Price
Meals (7 CFR part 245) is 1,073,432. These changes are contingent upon
OMB approval under the Paperwork Reduction Act of 1995. When the
information collection requirements have been approved, FNS will
publish a separate action in the Federal Register announcing OMB's
approval.
Comments on the information collection in this interim rule must be
received by June 24, 2011. Send comments to the Office of Information
and Regulatory Affairs, OMB, Attention: Desk Officer for FNS,
Washington, DC 20503. Please also send a copy of your comments to Lynn
Rodgers-Kuperman, Chief, Program Analysis and Monitoring Branch, Child
Nutrition Division, 3101 Park Center Drive, Alexandria, VA 22302. For
further information, or for copies of the information collection
requirements, please contact Lynn Rodgers-Kuperman at the address
indicated above. Comments are invited on: (1) Whether the proposed
collection of information is necessary for the proper performance of
the Agency's functions, including whether the information will have
practical utility; (2) the accuracy of the Agency's estimate of the
proposed information collection burden, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility and clarity of the information to be collected; and (4) 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 request for comments will be summarized and
included in the request for OMB approval. All comments will also become
a matter of public record.
Title: Direct Certification and Certification of Homeless, Migrant
and Runaway Children for Free School Meals.
OMB Number: 0584-NEW.
Expiration Date: Not Yet Determined.
Type of Request: New Collection.
Abstract: Under the mandatory direct certification process, the
local educational agency (note: this term replaces the term school food
authority for the purposes of determining eligibility for free or
reduced price

[[Page 22795]]

school meals) must directly certify, as eligible for free school meals,
children who are members of a household that is receiving benefits from
the Supplemental Nutrition Assistance Program (SNAP). In addition, they
will continue to have the option of directly certifying children who
are members of households receiving assistance under the Food
Distribution Program on Indian Reservations (FDPIR), or Temporary
Assistance for Needy Families (TANF) program. The local educational
agency obtains documentation from the State or local agency
administering SNAP, FDPIR or TANF. The documentation establishes
children's automatic eligibility for free meals because of receipt of
benefits from the SNAP, FDPIR or TANF. Direct certification is done in
lieu of a family filing a free and reduced price application.
This interim rule also establishes categorical eligibility for free
meals for children in other programs. These are--children enrolled in a
Head Start program; children identified as homeless under the McKinney-
Vento Homeless Assistance Act (42 U.S.C. 11434a (2)); children
identified as migratory under section 1309 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6399); and children
identified as runaways receiving assistance under a program under the
Runaway and Homeless Youth Act (42 U.S.C. 5701 et seq.). These children
are identified by officials responsible for administering these
programs or by school officials responsible for identifying these
children who are enrolled in their school districts. For example, each
school district must have a local liaison who identifies homeless,
runaway or migratory children. In addition, Head Start officials or
representatives of the local Migrant Education Program may provide the
names of eligible children.
For mandatory direct certification with SNAP, optional direct
certification with FDPIR or TANF and eligibility determinations made
for children who are categorically eligible based on Head Start
participation and the other programs discussed above, the paperwork
burden for the local educational agency is due to the requirement to
obtain documentation and retain it for review purposes.
This interim rule will increase the recordkeeping burden on the
current collection burden inventory for the National School Lunch
Program, OMB Control Number 0584-0006, because local
educational agencies will be required to retain additional records
containing the names of children directly certified for National School
Lunch Program. This interim rule will increase the recordkeeping burden
and decrease the reporting burden on the current collection burden
inventory for Determining Eligibility for Free and Reduced Price Meals,
OMB Control 0584-0026, because State agencies must maintain
additional agreements and fewer households will be required to complete
an application form. The interim rule will not change the recordkeeping
nor the reporting burden on the current collection burden inventory for
School Breakfast Program, OMB Control 0584-0012, as those
respondents participating in the School Breakfast Program also
participate in the National School Lunch Program; thus the burden
associated with the School Breakfast Program will be carried in the
National School Lunch Program. The average burden per response and the
annual burden hours are explained below and summarized in the charts
which follow.
Estimated Annual Burden for 0584-NEW, National School Lunch Program, 7
CFR 210
Respondents for this Interim Rule: Local Educational Agencies.
Estimated Number of Respondents for this Interim Rule: 20,948.
Estimated Number of Responses per Respondent for this Interim Rule:
4.
Estimated Total Annual Responses: 83,792.
Estimated Total Annual Burden on Respondents for this Interim Rule:
52,370.

Estimated Annual Burden for 0584--New, National School Lunch Program, 7 CFR 210
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average
Section number of Frequency of annual Average burden Annual burden
respondents responses responses per response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping (Local Educational Agencies)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Names of children approved for meals based 7 CFR 210.9 (b)(19) and 7 20,948 3 62,844 0.5 31,422
on documentation certifying that the CFR 210.15 (b)(4).
child is included in a household
currently approved to receive benefits
under SNAP.
Names of children approved for meals based 7 CFR 210.9 (b)(19) and 7 20,948 1 20,948 1 20,948
on documentation certifying that the CFR 210.15 (b)(4).
child is included in a household
currently approved to receive benefits
under FDPIR, TANF, or is a homeless
child, migrant child, Head Start child,
or a runaway child.
Total Recordkeeping for Interim Rule...... ............................ 20,948 4 83,792 0.625 * 52,370
Total Existing Recordkeeping Burden for ............................ .............. .............. .............. .............. 8,903,547
Part 210.
Total Burden Increase for Part 210........ ............................ .............. .............. .............. .............. 51,620
Total Recordkeeping Burden for Part 210 ............................ .............. .............. .............. .............. 8,955,167
with Interim Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Includes 750 hours already in existing rule for this purpose, so net change is 51,620.

[[Page 22796]]

Estimated Annual Burden for 0584--NEW, Determining Eligibility for Free
and Reduced Price Meals, 7 CFR 245
Respondents for this Interim Rule: Households (8,262,043) and State
Education Agencies (54).
Estimated Number of Respondents for this Interim Rule: 8,262,097.
Estimated Number of Responses per Respondent for this Interim Rule:
1.0232267.
Estimated Total Annual Responses: 8,453,997.
Estimated Total Annual Burden on Respondents for this Interim Rule:
673,665.710.

Estimated Annual Burden for 0584--New, Determining Eligibility for Free and Reduced Price Meals, 7 CFR 245
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average
Section number of Frequency of Average annual burden per Annual burden
respondents response responses response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting (Households)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Households complete application form.... 7 CFR 245.6(a)............. 8,262,043 1 8,262,043 0.07 578,343.01
Households assemble written evidence and 7 CFR 245.6a (a)(7)(i)..... 190,000 1 167,441 0.5 95,000.00
send to local educational agency.
Households cooperate by providing 7 CFR 245.6a (a)(7)(ii).... 1,900 1 1,900 0.167 317.30
collateral contacts.
Total Reporting for Interim Rule........ ........................... 8,262,043 1 8,453,943 0.079686 *673,660.31
Total Existing Reporting Burden for Part ........................... ............... ............... ............... .............. 1,067,387.132
245.
Total Burden Decrease for Part 245...... ........................... ............... ............... ............... .............. (113,070.55)
Total Reporting Burden for Part 245 with ........................... ............... ............... ............... .............. 954,316.582
Interim Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Represents reduction of 113,070.55 from existing burden.

Estimated Annual Burden for 0584--New, Determining Eligibility for Free and Reduced Price Meals, 7 CFR 245
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average Average
Section number of Frequency of annual burden per Annual burden
respondents response responses response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping
--------------------------------------------------------------------------------------------------------------------------------------------------------
State agency must maintain agreements with 7 CFR 245.6(b).............. 54 1 54 0.1 5.40
local educational agencies conducting (1)(iv).....................
eligibility determinations for SNAP.
Total Recordkeeping for Interim Rule...... ............................ 54 1 54 0.1 5.40
Total Existing Recordkeeping Burden for ............................ .............. .............. .............. .............. 6,045.000
Part 245.
Total Recordkeeping Burden for Part 245 ............................ .............. .............. .............. .............. 6,050.400
with Interim Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Summary of Burden (OMB 0584--New) 7 CFR 210
------------------------------------------------------------------------

------------------------------------------------------------------------
TOTAL NUMBER of RESPONDENTS......................... 20,948
AVERAGE NUMBER of RESPONSES PER RESPONDENT.......... 4
TOTAL ANNUAL RESPONSES.............................. 83,792
AVERAGE HOURS PER RESPONSE.......................... .625
TOTAL BURDEN HOURS FOR PART 210 WITH INTERIM RULE... 11,898,524
CURRENT OMB INVENTORY FOR PART 210.................. 11,846,904
DIFFERENCE (NEW BURDEN REQUESTED WITH INTERIM RULE). 51,620
------------------------------------------------------------------------

Summary of Burden (OMB 0584--New) 7 CFR 245
------------------------------------------------------------------------

------------------------------------------------------------------------
TOTAL NUMBER of RESPONDENTS......................... 8,262,097
AVERAGE NUMBER OF RESPONSES PER RESPONDENT.......... 1.0232266
TOTAL ANNUAL RESPONSES.............................. 8,453,997
AVERAGE HOURS PER RESPONSE.......................... 0.079686
NEW TOTAL REPORTING AND RECORDKEEPING BURDEN HOURS 960,366.98
FOR PART 245 WITH INTERIM RULE.....................
PROPOSED OMB INVENTORY FOR PART 245................. 1,073,432.000
DIFFERENCE (NEW BURDEN REDUCTION REQUESTED WITH (113,065.10)
INTERIM RULE)......................................
------------------------------------------------------------------------

[[Page 22797]]

E-Government Act Compliance
FNS is committed to compliance with the 2002 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.
Public Participation
This action is being issued without prior notice or public comment
under authority of 5 U.S.C. 553(b)(3)(A) and (B). In recognition of the
need to implement the provisions on direct certification and expanded
categorical eligibility in order to facilitate participation of needy
students and to reduce the burden on local educational agencies,
section 501(b) of the Reauthorization Act allows the Department to
issue interim rules on these and other provisions in that law. Thus,
the Department has determined in accordance with 5 U.S.C. 553(b) that
Notice of Proposed Rulemaking and an opportunity for prior public
comment is unnecessary and contrary to the public interest and, in
accordance with 5 U.S.C. 553(d), finds that good cause exists for
making this action effective without prior public comment. However, as
noted earlier in this preamble, the Department recognizes that there
are some discretionary areas inherent in these provisions and has
concluded that it is important to provide an opportunity for public
comment to facilitate policy development through the rulemaking
process. In addition, several of the discretionary provisions have long
implementation timeframes.

List of Subjects

7 CFR Part 210

Children, Commodity School Program, Food assistance programs,
Grants programs--social programs, National School Lunch Program,
Nutrition, Reporting and recordkeeping requirements, Surplus
agricultural commodities.

7 CFR Part 215

Food assistance programs, Grant programs--education, Grant
programs-health, Infants and children, Milk, Reporting and
recordkeeping requirements.

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 225

Food assistance programs, Grant programs--health, Infants and
children, Labeling, Reporting and recordkeeping requirements.

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.

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.
Accordingly, 7 CFR parts 210, 215, 220, 225, 226 and 245 are
amended as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

0
1. The authority citation for part 210 continues to read as follows:

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

0
2. In Sec. 210.9:
0
a. Revise paragraph (b)(18);
0
b. Redesignate paragraphs (b)(19) and (b)(20) as paragraphs (b)(20) and
(b)(21), respectively; and
0
c. Add a new paragraph (b)(19).
The revision and addition read as follows:

Sec. 210.9 Agreement with State agency.

* * * * *
(b) * * *
(18) Maintain files of currently approved and denied free and
reduced price applications which must be readily retrievable by school.
(19) Maintain files of the names of children currently approved for
free meals through direct certification with the supporting
documentation, as specified in Sec. 245.6(b)(5) of this chapter, which
must be readily retrievable by school. Documentation for direct
certification must include information obtained directly from the
appropriate State or local agency, or other appropriate individual, as
specified by FNS, that:
(i) A child in the Family, as defined in Sec. 245.2 of this
chapter, is receiving benefits from SNAP, FDPIR or TANF, as defined in
Sec. 245.2 of this chapter; if one child is receiving such benefits,
all children in that family are considered to be directly certified;
(ii) The child is a homeless child as defined in Sec. 245.2 of
this chapter;
(iii) The child is a runaway child as defined in Sec. 245.2 of
this chapter;
(iv) The child is a migrant child as defined in Sec. 245.2 of this
chapter; or
(v) The child is a Head Start child as defined in Sec. 245.2 of
this chapter.
* * * * *

0
3. Section 210.18 is amended by revising paragraph (g)(1)(i)(A)(3);
paragraph (g)(1)(i)(A)(4); and the second sentence of paragraph
(g)(1)(i)(B) to read as follows:

Sec. 210.18 Administrative reviews.

* * * * *
(g) * * *
(1) * * *
(i) * * *
(A) * * *
(3) Evaluate if the previous year's eligibility determinations were
used as required in Sec. 245.6(c)(2) of this chapter.
(4) In the case where children are determined eligible for free
lunches through direct certification, as specified in Sec. 245.6 of
this chapter, establish that the documentation for direct certification
of children is official and from the appropriate State or local agency
or another appropriate individual, as approved by FNS; establish that
all information required under Sec. 245.6 of this chapter is complete
and the children were enrolled in the school under review during the
review period.
(B) * * * The State agency shall determine whether the system for
issuing benefits and updating children's eligibility status is adequate
and, within the timeframes established in Sec. 210.7(c)(1)(ii)(B),
reflects changes due to verification findings, transfers, or a
household's decision to decline benefits.
* * * * *

Sec. 210.19 [Amended]

0
4. Section 210.19 is amended in paragraph (c)(6) introductory text by
removing the phrase ``paragraphs (c)(6)(i) and (ii)'' and adding in its
place ``paragraphs (c)(6)(i) through (c)(6)(iii)''; and paragraph
(c)(6)(ii) by removing the term ``food stamp'' and adding in its place
``SNAP''.

Sec. 210.23 [Amended]

0
5. Section 210.23 is amended in paragraph (b), last sentence, by
removing the words ``FNS Instruction 113-6'' and adding in their place
the words ``FNS Instruction 113-1''.

[[Page 22798]]

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

0
6. The authority citation for part 215 continues to read as follows:

Authority: 42 U.S.C. 1772 and 1779.

Sec. 215.13a [Amended]

0
7. Section 215.13a is amended in paragraph (f) by removing the term
``Food Stamp'' and adding in its place ``SNAP''.

PART 220--SCHOOL BREAKFAST PROGRAM

0
8. The authority citation for part 220 continues to read as follows:

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

Sec. 220.2 [Amended]

0
9. Section 220.2, the definition of ``School in severe need'' is
amended by removing ``Sec. 220.9(e)'' and adding in its place ``Sec.
220.9(d)''.

0
10. Section 220.7 is amended by revising paragraph (e)(14) to read as
follows:

Sec. 220.7 Requirements for participation.

* * * * *
(e) * * *
(14) Retain documentation of free or reduced price eligibility as
follows:
(i) Maintain files of currently approved and denied free and
reduced price applications which must be readily retrievable by school
for a period of three years after the end of the fiscal year to which
they pertain; or
(ii) Maintain files with the names of children currently approved
for free meals through direct certification with the supporting
documentation, as specified in Sec. 245.6(b)(4) of this chapter, which
must be readily retrievable by school. Documentation for direct
certification must include information obtained directly from the
appropriate State or local agency, or other appropriate individual, as
specified by FNS, that:
(A) A child in the Family, as defined in Sec. 245.2 of this
chapter, is receiving benefits from SNAP, FDPIR or TANF, as defined in
Sec. 245.2 of this chapter; if one child is receiving such benefits,
all children in that family are considered to be directly certified;
(B) The child is a homeless child as defined in Sec. 245.2 of this
chapter;
(C) The child is a runaway child as defined in Sec. 245.2 of this
chapter;
(D) The child is a migrant child as defined in Sec. 245.2 of this
chapter; or
(E) The child is a Head Start child, as defined in Sec. 245.2 of
this chapter.
* * * * *

PART 225--SUMMER FOOD SERVICE PROGRAM

0
11. The authority citation for part 225 continues to read as follows:

Authority: Secs. 9, 13 and 14, Richard B. Russell National
School Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a)

0
12. In Sec. 225.2:
0
a. The introductory text of paragraph (b) and paragraph (b)(1) of the
definition of ``Documentation'' are amended by removing the term ``food
stamp,'' and adding in its place ``SNAP,'';
0
b. Remove the definition of ``Food stamp household''; and
0
c. Add a definition of ``SNAP household'' in alphabetical order to read
as follows:

Sec. 225.2 Definitions.

* * * * *
SNAP household means any individual or group of individuals which
is currently certified to receive assistance as a household from SNAP,
the Supplemental Nutrition Assistance Program, as defined in Sec.
245.2 of this chapter.
* * * * *

Sec. 225.6 [Amended]

0
13. In Sec. 225.6:
0
a. In paragraph (c)(2)(i)(L), the second sentence is amended by
removing the term ``food stamps,'' and adding in its place ``SNAP
benefits,'' ;
0
b. The last sentence of paragraph (c)(4)(ii)(B) is amended by removing
the term ``food stamp,'' and adding in its place ``SNAP,'' and
0
c. Paragraph (h)(2)(vii) is amended by removing the words ``General
Accounting Office'' and adding in their place the words ``Government
Accountability Office''.

Sec. 225.7 [Amended]

0
14. Section 225.7 is amended in paragraph (g)(1) by removing the word
``handicap'' and adding in its place the word ``disability'';

0
15. Section 225.15 is amended by:
0
a. Removing the term ``food stamp'' and adding in its place ``SNAP''
wherever it appears in the following paragraphs:
0
i. The third sentence of paragraph (e);
0
ii. The heading of the introductory text of paragraph (f)(3);
0
iii. Paragraph (f)(3)(i);
0
iv. Paragraph (f)(4)(ii);
0
v. Paragraph (f)(4)(iv);
0
vi. Paragraph (f)(4)(viii);
0
vii. Paragraph (f)(5)(i); and
0
viii. Paragraph (f)(5)(vi).
0
b. In paragraph (e) by removing the word ``labelled'' and adding in its
place the word ``labeled'' and by removing the word ``handicap'' and
adding in its place the word ``disability''.

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

0
16. The authority citation for 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).

0
17. In Sec. 226.2:
0
a. Amend the definition Documentation by removing the term ``food
stamp'' and adding in its place ``SNAP'' in paragraph (b) introductory
text, paragraph (b)(1), paragraph (d) introductory text, and paragraph
(d)(1);
0
b. Amend the definition Free meal by removing the term ``food stamp''
and adding in its place ``SNAP,'' each time it appears;
0
c. Amend the definition Verification by removing the term ``food
stamp'' and adding in its place ``SNAP,'' each time it appears;
0
d. Remove the definition of ``Food Stamp household'', and add a
definition of SNAP household in alphabetical order to read as follows:

Sec. 226.2 Definitions.

* * * * *
SNAP household means any individual or group of individuals which
is currently certified to receive assistances as a household from SNAP,
the Supplemental Nutrition Assistance Program, as defined in Sec.
245.2 of this chapter.
* * * * *

Sec. 226.6 [Amended]

0
18. In Sec. 226.6, paragraph (f)(1)(viii)(E) is amended by removing
the term ``Food Stamp Program'' and adding in its place ``SNAP'' each
time it appears.

Sec. 226.10 [Amended]

0
19. Section 226.10 is amended in paragraph (d) by removing the words
``General Accounting Office'' and adding in their place the words
``Government Accountability Office'';

Sec. 226.23 [Amended]

0
20. Section 226.23 is amended by:
0
a. Removing the term ``food stamp'' and adding in its place ``SNAP''
each time it appears in the following paragraphs:
0
i. Paragraph (c)(2);
0
ii. Paragraph (d);
0
iii. Paragraph (e)(1)(i);
0
iv. Paragraph (e)(1)(iii)(E), first and seventh sentence;
0
v. Paragraph (e)(1)(iv) introductory text;

[[Page 22799]]

0
vi. Paragraph (e)(1)(iv)(B);
0
vii. Paragraph (e)(1)(v) introductory text;
0
viii. Paragraph (e)(1)(v)(A);
0
ix. Paragraph (e)(1)(v)(B);
0
x. Paragraph (e)(2)(vii)(A);
0
xi. Paragraph (h)(2)(i)(A);
0
xii. Paragraph (h)(2)(i)(B);
0
xiii. Paragraph (h)(2)(iii)(A);
0
xiv. Paragraph (h)(2)(iv) introductory text;
0
xv. Paragraph (h)(2)(iv)(A);
0
xvi. Paragraph (h)(2)(v)(C), second sentence.
0
b. Removing the term ``Food stamp'' and adding in its place ``SNAP''
each time it appears in the following paragraphs:
0
i. Paragraph (e)(1)(ii)(F);
0
ii. Paragraph (e)(1)(iv)(A);
0
iii. Paragraph (h)(2)(v)(A).
0
c. In paragraph (e)(1)(iii)(E), and in paragraph (h)(2)(vi), by
removing the words ``food stamps'' and adding in their place the word
``SNAP''.
0
d. In paragraphs (d), (e)(2)(iv) and (h) by removing the word
``handicap'' and adding in its place the word ``disability'';
0
e. In paragraph (e)(1)(iii)(E) by removing the term ``CCFP'' and adding
in its place the term ``CACFP'';
0
f. In paragraph (h)(2)(iv) introductory text, first sentence by
removing the words ``the Food Stamp, FDPIR or TANF program'' and adding
in their place the words ``SNAP, FDPIR or TANF'';
0
g. In paragraph (h)(2)(iv) introductory text, second sentence by
removing the words '' Food Stamp, FDPIR or TANF program'' and adding in
their place the words ``SNAP, FDPIR or TANF'' and by removing the words
at the end of the sentence ``in the Food Stamp, FDPIR or TANF
Programs'' and adding in their place the words'' in SNAP, FDPIR or
TANF'' ;
0
h. In paragraph (h)(2)(iv) introductory text, fourth sentence by
removing the words ``in the Food Stamp Program'' and adding in their
place the word ``SNAP'';
0
i. In paragraph (h)(2)(iv)(A), first sentence by removing the words
``Food Stamp'' and adding in their place the word ``SNAP''.

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

0
21. The authority citation for part 245 continues to read as follows:

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

0
22. In Sec. 245.2:
0
a. Remove the definitions of ``Food Stamp Program'', and ``Food Stamp
Household'';
0
b. In the definition Documentation, paragraphs (1)(ii) and (2) are
revised;
0
c. In the definition Verification, the fourth sentence is amended by
removing the term ``Food Stamp Program'' and adding in its place
``SNAP''; and removing the term ``food stamps'' and adding in its place
``SNAP'';
0
d. Add definitions of ``Categorically eligible'', ``Direct
certification'', ``Head Start child'', ``Homeless child'', ``Migrant
child'', ``Runaway child'', ``SNAP'', and ``SNAP household'' in
alphabetical order.
The additions and revision read as follows:

Sec. 245.2 Definitions.

* * * * *
Categorically eligible means considered income eligible for free
meals or free milk, as applicable, based on documentation that a child
is a member of a Family, as defined in this section, and one or more
children in that family are receiving assistance under SNAP, FDPIR or
the TANF program, as defined in this section. A Homeless child, a
Migrant child, a Head Start child and a Runaway child, as defined in
this section, are also categorically eligible. Categorical eligibility
and automatic eligibility may be used synonymously.
* * * * *
Direct certification means determining a child is eligible for free
meals or free milk, as applicable, based on documentation obtained
directly from the appropriate State or local agency or individuals
authorized to certify that the child is a member of a household
receiving assistance under SNAP, as defined in this section; is a
member of a household receiving assistance under FDPIR or under the
TANF program, as defined in this section; a Homeless child, a Migrant
child, a Head Start child and a Runaway child, as defined in this
section.
* * * * *
Documentation means:
(1) * * *
(ii) For a child who is receiving assistance under SNAP, FDPIR or
TANF, as defined in this section, the child's name and appropriate SNAP
or TANF case number or FDPIR case number or other FDPIR identifier and
signature of an adult household member.
(2) In lieu of completion of the free and reduced price meal
application:
(i) Information obtained from the State or local agency responsible
for administering SNAP, FDPIR or TANF, as defined in this section.
Documentation for these programs includes the name of the child; a
statement certifying that the child is a member of a household
receiving assistance under SNAP, FDPIR or TANF, as defined in this
section; information in sufficient detail to match the child attending
school in the local educational agency with the name of a child who is
a member of one of the applicable programs as defined in this section;
the signature of the official from the applicable program who is
authorized to provide such documentation on behalf of that program and
the date that the official signed the certification statement;
(ii) (A) A letter or other document provided to the household by
the agency administering FDPIR or the TANF program, as defined in this
section or by the entity or official authorized to administer an
eligible program for a Migrant child, Homeless child, Runaway child, or
Head Start child, as defined in this section; or
(B) A letter or document from the agency administering the SNAP
program that was voluntarily submitted by the household to the local
educational agency;
(iii) Information from the local educational agency, such as
enrollment information or information from applications submitted for
free or reduced price meals, or from SNAP, FDPIR or TANF program
officials that indicate there are children in a Family, as defined in
this section, who were not documented as receiving assistance under
SNAP, FDPIR or TANF, in order to extend categorical eligibility to such
children as found in Sec. 245.6(b)(7). Documentation for these
purposes is the information discussed in paragraph (2)(i) of this
definition, plus a written statement by a local educational agency
official briefly explaining how the presence of additional children in
the family was determined.
(iv) Information obtained from an official responsible for
determining if a child is a Homeless child, a Migrant child, a Head
Start child and a Runaway child, as defined in this section.
Documentation for these children includes the name of the child; a
statement certifying that the child has been determined eligible for
that program or is enrolled in the Head Start Program; information in
sufficient detail to match the child attending school in the local
educational agency with the name of a child who has been determined
eligible for that program or is enrolled in an eligible Head Start
Program; the signature of the official from the program who is
authorized to provide such documentation on behalf of that program and
the date that the official signed the certification statement.
Documentation may also be a

[[Page 22800]]

list of children or a computer match that includes this information.
(v) When a signature is impracticable to obtain, such as in a
computer match, the local educational agency shall have a method to
ensure that a responsible official can attest to the accuracy of the
information provided.
* * * * *
Head Start child means a child enrolled as a participant in a Head
Start program authorized under the Head Start Act (42 U.S.C. 9831 et
seq.)
Homeless child means a child identified as lacking a fixed, regular
and adequate nighttime residence, as specified under section 725(a) of
the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)) by the
local educational agency liaison, director of a homeless shelter or
other individual identified by FNS.
* * * * *
Migrant child means a child identified as meeting the definition of
migrant in section 1309 of the Elementary and Secondary Education Act
of 1965 (20 U.S.C. 6399) by the State or local Migrant Education
Program coordinator or the local educational liaison, or other
individual identified by FNS.
* * * * *
Runaway child means a child identified as a runaway receiving
assistance under a program under the Runaway and Homeless Youth Act (42
U.S.C. 5701 et seq.) by the local educational liaison, or other
individual in accordance with guidance issued by FNS.
* * * * *
SNAP means the Supplemental Nutrition Assistance Program
established under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et.
seq.) and operated under parts 271 and 283 of this chapter.
SNAP household means any individual or group of individuals
currently certified to receive assistance as a household from SNAP.
* * * * *

0
23. Section 245.3(b) is revised to read as follows:

Sec. 245.3 Eligibility standards and criteria.

* * * * *
(b) Each participating local educational agency and all
participating schools under its jurisdiction must adhere to the
eligibility criteria specified in this part. Local educational agencies
must include these eligibility criteria in their policy statement as
required under Sec. 245.10 and it must be publicly announced in
accordance with the provisions of Sec. 245.5. Additionally, each State
agency, or FNSRO where applicable, must require that local educational
agencies accept as income eligible for free meals and free milk,
children who are categorically eligible for those benefits based on
documentation of eligibility, as specified in Sec. 245.6 (b).
* * * * *

0
24. Section 245.5 is amended as follows:
0
a. In paragraph (a)(1)(iv) remove the term ``food stamp'' and add in
its place ``SNAP'';
0
b. Redesignate paragraphs (a)(1)(x) and (a)(1)(xi) as paragraphs
(a)(1)(xi) and (a)(1)(xii), respectively, and add a new paragraph
(a)(1)(x) to read as follows:

Sec. 245.5 Public announcement of the eligibility criteria.

(a) * * *
(1) * * *
(x) An explanation that Head Start enrollees and certain migrant,
homeless, and runaway children are categorically eligible for free
meals and free milk and their families should contact the school for
more information.
* * * * *

0
25. Section 245.6 is amended as follows:
0
a. Paragraph (a)(6) is amended by removing the term ``Food Stamp
Program'' and adding in its place ``SNAP'' and by removing the term
``food stamp'' and adding in its place ``SNAP'';
0
b. Paragraph (a)(8)(i) is amended by removing the term ``Food Stamp''
and adding in its place ``Supplemental Nutrition Assistance Program
(SNAP)'';
0
c. Amend paragraph (a)(8)(ii) by adding two new sentences at the end;
0
d. Revise paragraph (b);
0
e. Amend paragraph (c)(2) by adding two sentences at the end;
0
f. Revise paragraph (c)(5);
0
g. In paragraph (c)(6)(ii), the first sentence is amended by removing
``Food Stamp Program, FDPIR or TANF Program'' and adding in its place
``SNAP, FDPIR or TANF''; and
0
h. In paragraph (c)(6)(ii), the last sentence is amended by removing
the term ``food stamp'' and adding in its place ``SNAP'';
0
i. Amend paragraph (c)(6)(ii) by adding a new sentence at the end.
The addition and revisions read as follows:

Sec. 245.6 Application, eligibility and certification of children for
free and reduced price meals and free milk.

(a) * * *
(8) * * *
(ii) * * * Also, certain migrant, homeless, and runaway children
and children enrolled in a Head Start program are categorically
eligible for free meals and free milk. If you are completing an
application for these children, contact the school for more
information.
* * * * *
(b) Direct certification. In lieu of requiring a household to
complete the free and reduced price meal or free milk application, as
specified in paragraph (a) of this section, the local educational
agency must certify children as eligible for free meals or free milk in
accordance with paragraph (b)(1)(i) of this section or may certify
children as eligible for free meals or free milk in accordance with
paragraph (b)(2) of this section. If a household also submits an
application for directly certified children, the direct certification
eligibility determination will take precedence.
(1) Mandatory direct certification of children in SNAP households.
(i) All local educational agencies conducting eligibility
determinations must directly certify children who are members of a
household receiving assistance under SNAP, as defined in Sec. 245.2,
in School Year 2008-2009, which begins on July 1, 2008, and each
subsequent school year.
(ii) Schools participating only in the Special Milk Program
authorized under part 215 of this chapter may directly certify children
for that program but are not required to conduct direct certification
with SNAP. In addition, residential child care institutions, as defined
in paragraph (c) of the definition of School in Sec. 210.2 of this
chapter, that do not have non-residential children are also not
required to conduct direct certification with SNAP.
(iii) Beginning in School Year 2012-2013, direct certification
shall be conducted using a data matching technique only and letters to
household for direct certification may be used only as an additional
means to notify households of children's eligibility based on receipt
of SNAP benefits. The last period that letters to households may be
used as the primary method for direct certification is School Year
2011-12.
(iv) Each State agency must enter into an agreement with the State
agency conducting eligibility determinations for SNAP. The agreement
must specify the procedures that will be used to facilitate the direct
certification of children who are members of a household receiving
assistance under SNAP, as defined in Sec. 245.2. The agreement must
address procedures to comply with the requirements of paragraphs (b)(3)
through (b)(9) of this section. Direct

[[Page 22801]]

certification must allow for notifying parents that their children have
been determined eligible for free meals or free milk, as applicable,
and that no further application is required. Such agreements must
address how phase-out of non-electronic matches as the primary method
for conducting direct certification for SNAP will be completed by
School Year 2012-2013. The agreement shall be maintained by the State
agency.
(v) Schools applying to use Provision 2 or Provision 3, as
permitted under Sec. 245.9, are required to conduct direct
certification only in base years. However, schools may elect to conduct
direct certification at other times, such as streamlined base years,
when eligibility determinations are made.
(2) Children who may be directly certified. The local educational
agency may directly certify children for free meals or free milk based
on documentation received from the appropriate State or local agency
that administers FDPIR or TANF, as defined in Sec. 245.2, when that
agency indicates that the children are members of a household receiving
assistance under one of these programs. In addition, the local
educational agency may directly certify children for free meals or free
milk based on documentation from the appropriate State or local agency
or other appropriate individual, as specified by FNS, that the child is
a Migrant child, a Homeless child, a Runaway child, or a Head Start
child, as defined in Sec. 245.2.
(3) Frequency of direct certification contacts with SNAP. (i) Until
School Year 2011-2012, local educational agencies must conduct direct
certification activities with SNAP at least at the beginning of the
school year.
(ii) (A) Beginning in School Year 2011-2012, at a minimum, all
local educational agencies must conduct direct certification as
follows:
(1) At or around the beginning of the school year;
(2) Three months after the initial effort; and
(3) Six months after the initial effort.
(B) The information used shall be the most recent available.
(iii) The names of all newly enrolled children and all children not
certified for free meals shall be submitted for the direct
certification required in paragraph (b)(3)(ii)(B) and paragraph
(b)(3)(ii)(C) of this section. Newly enrolled children must be provided
with application materials in order to alleviate a delay in receipt of
free meals or free milk if direct certification for these children
cannot be completed promptly upon enrollment.
(iv) State agencies are encouraged to conduct direct certification
more frequently to obtain information about newly enrolled children or
children who may be newly certified for that program's benefits.
(4) Frequency of direct certification with other programs. Local
educational agencies opting to conduct direct certification activities
with FDPIR or TANF should conduct such activities at or around the
beginning of the school year. Obtaining information about homeless,
migrant, runaway children or Head Start enrollees should be done, at a
minimum, at or around the beginning of the school year and when newly
enrolled children or children newly eligible for those programs are
being certified.
(5) Direct certification documentation. (i) The required
documentation for direct certification is provided in paragraph (2) of
the definition of Documentation in Sec. 245.2.
(ii) (A) Beginning in School Year 2012-2013, direct certification
with SNAP shall be conducted using a data matching technique only.
Letters to households for direct certification may be used only as an
additional means to notify households of children's eligibility based
on receipt of SNAP benefits. The last period that letters to households
may be used as the primary method for direct certification is School
Year 2011-2012. While such notices cannot be the primary method used by
a state to document receipt of SNAP, the local educational agency shall
accept such a letter if presented by a household.
(B) Letters or other documents may be used as the primary method
for direct certification to document receipt of FDPIR or TANF benefits.
(iii) Individual notices from officials of eligible programs for a
Migrant child, Homeless child or Runaway child, as defined in Sec.
245.2, or for a Head Start child, as defined in Sec. 245.2 may
continue to be used. These notices are provided to school officials who
must certify these children as eligible for free meals or free milk, as
applicable, without further application, upon receipt of such notice.
(6) Officials who can provide documentation for direct
certification. (i) The local educational agency must accept
documentation from officials of the State or local agency that
administers SNAP, certifying that a child is a member of a household
receiving assistance under SNAP as defined in Sec. 245.2, or officials
of the State or local agency that administers FDPIR or TANF, as defined
in Sec. 245.2, certifying that a child is a member of a household
receiving assistance under one of those programs.
(ii) In the case of a child who is a Homeless child, as defined in
Sec. 245.2, the director of a homeless shelter or the local
educational liaison for homeless children and youth may provide the
appropriate documentation. The Migrant Education Program coordinator or
the local educational liaison, as applicable, may provide the
supporting documentation for a Migrant child, as defined in Sec.
245.2. For a Head Start child, as defined in Sec. 245.2, an official
from that program may supply the documentation indicating enrollment in
the Head Start program. Once the appropriate official has provided the
direct certification documentation to the local educational agency, the
child must have free benefits made available as soon as possible but no
later than three operating days after the date the local educational
agency receives the direct certification documentation.
(7) Extension of eligibility to all children in a family. If any
child is identified as a member of a household receiving assistance
under SNAP, FDPIR, or TANF, all children in the Family, as defined in
Sec. 245.2, shall be categorically eligible for free meals or free
milk. This applies to children identified through direct certification
or through a free and reduced price application.
(8) Migrant, Runaway, Homeless or Head Start Children. To be
categorically eligible as a Migrant child, Runaway child, Homeless
child or a Head Start child, the child's individual eligibility or
participation for these programs shall be established. Categorical
eligibility based on these programs shall not be extended to other
children in the household.
(9) Confidential nature of direct certification information.
Information about children or their households obtained through the
direct certification process must be kept confidential and is subject
to the limitations on disclosure of information in section 9 of the
Richard B. Russell National School Lunch Act, 42 U.S.C. 1758.
Therefore, information that a household is receiving benefits from
SNAP, FDPIR or TANF or that a child is participating in another program
which makes children categorically eligible for free school meals or
free milk must be used solely for the purposes of direct certification
for determining children's eligibility for free school meals or free
milk and as otherwise permitted under Sec. 245.6(f).
(10) Notification to families. For children who are directly
certified, local educational agencies are not required to provide
application materials and notice

[[Page 22802]]

to parents informing them of the availability of free and reduced price
meal benefits, as specified in Sec. 245.5(a), when that information is
distributed by mail, individualized student packets, or other method
which prevents overt identification of children eligible for direct
certification.
(c) * * *
(2) * * * Schools conducting an initial base year for Provision 2
that are approved to delay implementation as permitted under Sec.
245.9(b)(6)(ii) are not required to carryover children's prior year
eligibility status as outlined in this paragraph (c). Carryover cannot
be used when returning to standard meal counting and claiming under
Sec. 245.9(c)(2)(i), when establishing a new base year under Sec.
245.9(c)(2)(ii) or establishing a streamlined base year under Sec.
245.9(c)(2)(iii).
* * * * *
(5) Categorical eligibility. (i) SNAP, FDPIR, TANF When a household
submits an application containing the required SNAP, FDPIR or TANF
documentation, as defined under Documentation in Sec. 245.2, all
children in that household shall be categorically eligible for free
meals or free milk. Additionally, when the local educational agency
obtains confirmation of eligibility for these programs through direct
certification, all children who are identified as members of a Family,
as defined in Sec. 245.2, shall be categorically eligible for free
meals or milk.
(ii) Homeless, migrant, runaway children and Head Start enrollees.
Upon receipt of Documentation, as defined in paragraph (2)(ii) and
(2)(iv) of the definition in Sec. 245.2, the local educational agency
must approve such children for free benefits without further
application.
(6) * * *
(ii) * * * The local educational agency must notify, in writing,
households with children who are approved on the basis of documentation
that they are Categorically eligible, as defined in Sec. 245.2, that
their children are eligible for free meals or free milk, and that no
application is required.
* * * * *

0
26. Section 245.6a(a)(1)(i) is revised to read as follows:

Sec. 245.6a Verification requirements.

(a) * * *
(1) * * *
(i) SNAP, as defined in 245.2;
* * * * *

Sec. 245.9 [Amended]

0
27. Section 245.9 is amended by removing the term ``Food Stamp
Program'' and adding in its place ``SNAP'' paragraphs (c)(1)(i) and
(e)(1)(i).

0
28. Section 245.10 is amended by revising the last two sentences of
paragraph (a)(3) to read as follows:

Sec. 245.10 Action by local educational agencies.

(a) * * *
(3) * * * Additionally, the local educational agency must include
the specific procedures it will use for obtaining documentation for
determining children's eligibility through direct certification, in
lieu of an application. Local educational agencies shall also provide
households that are directly certified with a notice of eligibility, as
specified in Sec. 245.6(c)(2) and shall include in their policy
statement a copy of such notice.
* * * * *

0
29. Section 245.11 is amended by removing the term ``Food Stamp'' and
adding in its place ``SNAP'' in paragraph (h)(4)(iv).

Dated: April 13, 2011.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2011-9457 Filed 4-22-11; 8:45 am]
BILLING CODE 3410-30-P