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This interim final rule (IFR) will amend 7 CFR part 225 to codify the flexibility for rural program operators to provide non-congregate meal service in the Summer Food Service program (SFSP). This rule will also establish a new 7 CFR part and codify a new Summer Electronic Benefits Transfer (EBT) for Children Program in this part. The mandate for these changes is found in section 502 of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), which added new section 13a of the Richard B. Russell Nation School Lunch Act (NSLA) to allow rural non-congregate meal service in the SFSP and NSLP Seamless Summer Option (SSO) and created a new section 13a to establish a permanent Summer EBT Program.

To gather information in support of this rulemaking, between April - August 2023, FNS has hosted more than 100 listening sessions and information meetings to date with State agencies, advocacy groups, Program operators, and industry partners. These listening sessions focused primarily, but not exclusively, on the rural non-congregate meal service option. Additional listening sessions related to Summer EBT are forthcoming. Since the enactment of The Consolidated Appropriations Act, 2023, FNS published guidance that serves as the instructions for state agencies and program operators on how to implement SFSP and SSO rural non-congregate meal service during summer 2023, including guidance on oversight and monitoring pertaining to non-congregate operations to assist program operators. In addition, FNS has published early implementation guidance on Summer EBT for Indian Tribal Organizations and State agencies.

Overall Description of Deadline: The Consolidated Appropriations Act, 2023 (Pub. L. 117-328) requires FNS to promulgate regulations to carry out the provisions under section 502 of the Act no later than 1 year after the date of enactment. Public Law 117-328 was enacted on December 29, 2022; therefore, FNS is required to publish an interim final rule by December 29, 2023. However, FNS is aiming for publication by December 15, 2023, in order to ensure the statutory deadline is met.

Statement of Need:

The Consolidated Appropriations Act, 2023 (Pub. L. 117-328) established a permanent Summer EBT Program and authorized a rural non-congregate meal service option in the Summer Food Service Program (SFSP), to be promulgated through interim final regulations no later than 1 year after the date of enactment. Accordingly, this interim final rulemaking will amend the SFSP regulations in 7 CFR part 225 and create a new 7 CFR section to allow State agencies and program operators to carry out the statutory provisions of Public Law 117-328. Implementation of this legislation will expand the reach of FNS’ summer nutrition programs, providing greater access for communities and families whom the traditional SFSP cannot reliably reach, which in turn will have a lasting impact on how the nutritional needs of children are met during the summer months.

Summary of the Legal Basis:

Richard B. Russell National School Lunch Act (NSLA) at 42 U.S.C. 1761 and 1762a

Alternatives:

The Agency considered alternatives pertaining to the non-congregate meal service provisions in the Summer Food Service Program include the definition of rural, measures to ensure program integrity, meal service models, and State discretion on implementation approaches. For Summer EBT, in addition to the policies included in the interim final rule, the Agency considered alternatives in the areas of State administration, enrollment, EBT issuance and expungement, and program operations for Indian Tribal Organizations.

Anticipated Costs and Benefits:

Implementing the rule’s regulatory requirements is expected to add to current program costs at the Federal, State, and local levels, with the majority of costs going towards the establishment and implementation a permanent Summer EBT program. The implementation of this legislation is anticipated to benefit families with children by enabling more such families access to critical nutrition assistance for their children. FNS anticipates that 29 million children currently receiving free or reduced price meals will be eligible for Summer EBT annually. Participation in the SFSP will increase over time by 4.4 million, lifting the number of meals served to children in the summer by more than 380 million.

Risks:

Summer EBT will be the first new FNS nutrition program in decades and will reach millions of children each summer. Crafting implementing regulations will be a complex process as FNS will need to consider and make determinations with regards to a large number of policy decisions. FNS will also need to engage a wide spectrum of stakeholders early in this process to gather input on best practices and effective approaches to implementation. Given the short timeframe to promulgate this IFR, there is a risk that regulations will not publish in time.