[Federal Register Volume 86, Number 147 (Wednesday, August 4, 2021)]
[Notices]
[Pages 41943-41945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16479]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service


Request for Information: Buy American in the National School 
Lunch Program and School Breakfast Program

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Notice: Request for information.

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SUMMARY: This is a Request for Information from stakeholders, including 
local operators, State administrators, industry and producers, about 
the Buy American provision in the National School Lunch Program (NSLP) 
and the School Breakfast Program (SBP). The NSLP and SBP, which are 
administered by the United States Department of Agriculture (USDA) Food 
and Nutrition Service (FNS), play a critical role in ensuring that 
America's children have access to nutritious food they need to learn 
and succeed in the classroom, in addition to supporting American 
agriculture, and small, minority, and women's businesses and 
agricultural producers. In order to claim Federal reimbursement for 
meals served, school food authorities (SFAs) must follow Federal 
procurement and program regulations. These include the Buy American 
provision. The purpose of this Request for Information is to help FNS 
gather feedback from a wide variety of stakeholders on how the Buy 
American provision and guidance are currently implemented, changes FNS 
should make to current regulations and guidance and feedback on how FNS 
can better support local operators as they strive to purchase domestic 
foods and food products.

DATES: Written comments must be received on or before November 2, 2021.

ADDRESSES: USDA invites the submission of the requested information 
through one of the following methods:
    <bullet> Federal eRulemaking Portal (preferred method): Go to 
http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    <bullet> Mail: Send written comments to the School Meals Monitoring 
Branch, Program Monitoring and Operational Support Division, Child 
Nutrition Programs, USDA Food and Nutrition Service, Braddock Metro 
Center II, 1320 Braddock Place, Alexandria, VA 22314.

All comments submitted in response to this Request for Information will 
be included in the record and will be made available to the public. 
Please be advised that the substance of the comments and the identity 
of the individuals or entities submitting the comments will be subject 
to public disclosure. USDA will make the comments publicly available 
via http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jessica Saracino, School Meals 
Monitoring Branch, Program Monitoring and Operational Support Division, 
Child Nutrition Programs, USDA Food and Nutrition Service, 703-605-
3223.

SUPPLEMENTARY INFORMATION: On January 25, 2021, President Biden signed 
the Executive Order on Ensuring the Future is Made in All of America by 
All of America's Workers (referred to as the Buy American Executive 
order hereafter) supporting the American economy by requiring terms and 
conditions of Federal financial assistance awards and Federal 
procurements to maximize the use of goods, products, and materials 
produced in, and services offered in, the United States. FNS is issuing 
this RFI in response to this Executive Order.
    Section 104(d) of the William F. Goodling Child Nutrition 
Reauthorization Act of 1998 (Pub. L. 105-336) added a provision, 
Section 12(n) to the National School Lunch Act (NSLA) (42 U.S.C. 
1760(n)), requiring school food authorities (SFAs) to purchase, to the 
maximum extent practicable, domestic commodities or products. This Buy 
American provision supports the mission of the Child Nutrition 
Programs, which is to serve children nutritious meals and support 
American agriculture. The existing regulatory provision stems directly 
from the statutory requirement.
    The Buy American provision applies to SFAs located in the 48 
contiguous United States and is one of the procurement standards these 
SFAs must comply with when purchasing commercial food and food products 
served in NSLP and SBP. Although Alaska, Hawaii, and the U.S. 
territories are exempt from the Buy American provision, SFAs in Hawaii 
are required to purchase food and food products produced in Hawaii in 
sufficient quantities, as determined by the SFA, to meet NSLP and SBP 
needs per 7 CFR 210.21(d)(3) and 7 CFR 220.16(d)(3). Likewise, SFAs in 
Puerto Rico are required to purchase food and food products produced in 
Puerto Rico in sufficient quantities, under 42 U.S.C. 1760(n)(4).
    Section 12(n) of the NSLA defines ``domestic commodity or product'' 
as an agricultural commodity that is produced in the United States and 
a food product that is processed in the United States substantially 
using agricultural commodities produced in the United States. Report 
language accompanying the legislation noted that ``substantially means 
over 51% from American products.'' Accordingly, FNS has established in 
guidance that over 51% of the final processed product must consist of 
agricultural commodities that were grown domestically. Thus, for foods 
that are unprocessed, agricultural commodities must be domestic, and 
for foods that are processed, they must be processed domestically using 
domestic agricultural food components that are comprised of over 51% 
domestically grown items, as determined by the SFA. Any processed 
product used must contain over 51% of the product's food component from 
United States origin. This definition of domestic product serves both 
the needs of schools and American agriculture. Foods and food products 
from Guam, American Samoa, Virgin Islands, Puerto Rico, and the 
Northern Mariana Islands are considered domestic products under this 
provision as these products are from the territories of the United 
States.
    FNS has provided through guidance limited exceptions to the Buy 
American provision which allow for the purchase of foods not meeting 
the ``domestic'' standard as described above (i.e., ``non-domestic'') 
in circumstances when use of domestic foods is truly not practicable. 
These exceptions, as determined by the SFA, are:
    <bullet> The product is not produced or manufactured in the United 
States in sufficient and reasonably available quantities of a 
satisfactory quality; or
    <bullet> Competitive bids reveal the costs of a United States 
product are significantly higher than the non-domestic product.
    It should be noted that FNS has not defined a dollar amount or 
percentage triggering possible use of an exception. It is each 
individual SFA's responsibility to determine what dollar amount or 
percentage constitutes a significantly higher price thus permitting the 
use of the exception. If an SFA is using one of the above exceptions, 
there is no requirement at this time to request a waiver from the State 
agency or FNS in order to purchase a non-domestic product. SFAs must, 
however, keep documentation justifying their use of exception(s). State 
agencies must ensure SFA compliance with the Buy American provision 
when conducting oversight processes.

[[Page 41944]]

    FNS has already received feedback that stakeholders face 
difficulties in implementing and monitoring the Buy American provision 
and guidance. Additionally, stakeholders have reached out for 
assistance with interpreting and following the Buy American provision 
and have also requested help with understanding the exceptions. 
Feedback provided in response to this Request for Information will help 
inform future rulemaking and guidance around the Buy American 
provision.

Maximizing the Value of Public Feedback

    This notice contains a list of questions, the answers to which will 
assist FNS in identifying those regulations, and/or policies that may 
benefit from modification, streamlining, expansion, or repeal in light 
of the Buy American Executive order. FNS encourages public comment on 
these questions and seeks any other data commenters believe are 
relevant to FNS's review efforts. The type of feedback that is most 
useful to the agency includes feedback that identifies specific 
regulations and/or policies that could benefit from reform; feedback 
that refers to specific barriers to participation; feedback that offers 
actionable data; and feedback that specifies viable alternatives to 
existing approaches that meet statutory obligations. For example, 
feedback that simply states that a stakeholder feels strongly that FNS 
should change a regulation or policy but does not contain specific 
information on how the proposed change would impact the costs and 
benefits of the regulation, is much less useful to FNS. FNS is looking 
for new information and new data to support any proposed changes. 
Highlighted below are a few of those points, noting comments that are 
most useful to FNS. Commenters should consider these principles as they 
answer and respond to the questions in this notice.
    <bullet> Commenters should identify, with specificity, the program 
regulation and/or policy at issue, providing the Code of Federal 
Regulation (CFR) citation where appropriate.
    <bullet> Commenters should identify, with specificity, 
administrative burdens, program requirements, or unnecessary complexity 
that may impose unjustified barriers in general, or that may have 
adverse effects on equity for all, including individuals who belong to 
underserved communities that have been denied equitable treatment, such 
as Black, Latino, and Indigenous and Native American persons, Asian 
Americans and Pacific Islanders and other persons of color; members of 
religious minorities; lesbian, gay, bisexual, transgender, and queer 
(LGBTQ+) persons; persons with disabilities, including learning 
disabilities; persons who live in rural areas; and persons otherwise 
adversely affected by persistent poverty or inequality.
    <bullet> Commenters should provide, in as much detail as possible, 
an explanation why a program regulation and/or policy should be 
modified, streamlined, expanded, or repealed, as well as specific 
suggestions of ways the agency can better achieve its statutory and 
regulatory objectives in light of the Buy American Executive order.
    <bullet> Commenters should provide specific data that document the 
costs, burdens, and benefits of existing requirements to the extent 
they are available.

List of Questions for Commenters

    This Request for Information reflects the commitment of FNS to work 
with our stakeholders, including local operators, State administrators, 
industry and producers, to ensure that the Program-specific Buy 
American provision support the Administration's priorities, is 
practicable and that FNS provides adequate guidance.
    The below non-exhaustive list of questions is meant to assist 
members of the public in the formulation of comments and is not 
intended to restrict the issues that commenters may address.

General

    1. What changes, if any, to the Buy American provision and guidance 
would you recommend to FNS to support the Buy American executive order? 
Please describe in detail.
    2. Please describe what works well for your organization when 
implementing and/or meeting the Buy American provision.
    3. Please describe any challenges or impediments identified in 
meeting or monitoring the Buy American provision.
    4. Do you have State-specific requirements to ensure SFAs comply 
with the Buy American provision (e.g., recording every exception used, 
listing alternatives considered, etc.)? If so, please describe in 
detail.
    5. Does your SFA use geographic preference when soliciting for 
unprocessed locally grown or locally raised agricultural products?
    a. If not, what are the reason(s) your SFA does not use geographic 
preference to purchase locally grown or locally raised agricultural 
products?
    6. Does your SFA use small, minority, and/or women's businesses, 
including Tribal businesses, and labor surplus firms to purchase or 
process foods from local producers such as farmers, ranchers, and other 
producers, or to process unprocessed, locally grown agricultural 
commodities into usable food products, needed to operate the NSLP and 
SBP? If yes, which of the above does your SFA use and how often? Please 
describe whether your SFA has experienced any additional benefits 
(other than obtaining affordable foods) by using local producers.
    7. Please provide suggestions on how FNS can support stakeholders 
in meeting the Buy American provision or in connecting U.S. food 
producers to local schools.

Exceptions

    8. FNS allows two limited exceptions to the Buy American provision: 
Costs of a United States product that are significantly higher than the 
non-domestic product, and insufficient domestic quality or quantity. 
List the foods and/or food products that most often require an 
exception.

(a.) Exceptions due to quantity or quality
(b.) Exceptions due to a significantly higher cost

    9. If these currently available exceptions were more or less 
available, what impacts would this have?
    10. Do you think FNS should establish additional detail in the 
regulations for the Buy American provision?
    11. Do you think FNS should define what is considered a 
significantly higher cost? If so, how should FNS define 
``significant''? Please be as specific as possible.
    12. What methodology do you use to determine a significantly higher 
cost to your SFA that will require the purchase of non-domestic foods 
or food products? Do you use a dollar value or percentage in your 
determination? If yes, list the dollar value or percentage you use.
    13. Should FNS consider a defined list of Buy American ``excepted'' 
items for food or food products that have been determined as not 
produced in the United States in sufficient and reasonably available 
commercial quantities of a satisfactory quality? If so, what criteria 
would you use to include items on this list, and which items would 
currently be included?
    Collection of Information Requirements: This document does not 
impose information collection requirements, that is, reporting, 
recordkeeping or third-party disclosure

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requirements. However, this document does contain a general 
solicitation of comments in the form of a request for information. In 
accordance with implementing regulations of the Paperwork Reduction Act 
of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), this general 
solicitation is exempt from the PRA. Facts or opinions submitted in 
response to general solicitations of comments from the public, 
published in the Federal Register or other publications, regardless of 
the form or format thereof, provided that no person is required to 
supply specific information pertaining to the commenter other than that 
necessary for self-identification, as a condition of the agency's full 
consideration, are not generally considered information collections and 
therefore not subject to the PRA.

Timothy English,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 2021-16479 Filed 8-3-21; 8:45 am]
BILLING CODE 3410-30-P