[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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Fax: (703) 305-2879, attention Julie Brewer.
    <bullet> 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.
    <bullet> 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
                              ------------------------------------------
                                        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
                              ------------------------------------------
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:
    <bullet> July 19, 2004--Categorical Eligibility for Free Lunches 
and Breakfasts of Runaway, Homeless, and Migrant Youth: Reauthorization 
2004 Implementation Memo SP 4;
    <bullet> August 16, 2004--Categorical Eligibility for Free Lunches 
and Breakfasts for Migrant Children; and
    <bullet> 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--
    <bullet> A member of a household receiving assistance under SNAP or 
FDPIR or a member of a family receiving benefits under the TANF 
program;
    <bullet> An enrollee in the Head Start Program;

[[Page 22792]]

    <bullet> A runaway child served by grant programs established under 
the Runaway and Homeless Youth Act;
    <bullet> A homeless child as defined under the McKinney-Vento 
Homeless Assistance Act; or
    <bullet> 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 <greek-i>0584-0006, expiration date 
March 31, 2012, and the Determining Eligibility for Free and Reduced 
Price Meals, OMB Control <greek-i>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 <greek-i>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 <greek-i>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 <greek-i>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 <greek-i>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 <greek-i>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