Hiring Flexibility Under Professional Standards
| Published date | 01 March 2019 |
| Record Number | 2019-03524 |
| Section | Rules and Regulations |
| Court | Food And Nutrition Service |
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
Rules and Regulations Federal Register
6953
Vol. 84, No. 41
Friday, March 1, 2019
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210 and 235
[FNS–2017–0039]
RIN 0584–AE60
Hiring Flexibility Under Professional
Standards
AGENCY
: Food and Nutrition Service
(FNS), USDA.
ACTION
: Final rule.
SUMMARY
: This final rule adds four
flexibilities to the hiring standards for
new school nutrition program directors
in small local educational agencies
(LEAs) and new State directors of school
nutrition programs under the
Professional Standards regulations for
the National School Lunch Program and
School Breakfast Program. First, to
address hiring challenges faced by small
LEAs, which are those with 2,499 or
fewer students, this rule requires
relevant food service experience rather
than school nutrition program
experience for new school nutrition
program directors. Second, it provides
State agencies with discretion to
consider documented volunteer or
unpaid work as relevant experience for
new school nutrition program directors
in LEAs with 2,499 or fewer students.
Third, it gives State agencies discretion
to accept less than the required years of
food service experience when an
applicant for a new director position in
an LEA with fewer than 500 students
has the minimum required education.
Lastly, this rule adds flexibility to the
hiring standards for State directors of
school nutrition programs by allowing
State agencies to consider applicants
with either a bachelor’s or advanced
degree in specified fields. These
changes are expected to expand the pool
of candidates qualified to serve as
leaders in the school nutrition programs
while continuing to ensure that school
nutrition professionals are able to
perform their duties effectively and
efficiently.
DATES
: This rule is effective April 30,
2019.
FOR FURTHER INFORMATION CONTACT
: Tina
Namian, Chief, School Programs
Branch, Policy and Program
Development Division, Food and
Nutrition Service, 3101 Park Center
Drive, 12th Floor, Alexandria, Virginia
22302; 703–305–2590.
SUPPLEMENTARY INFORMATION
:
I. Background
This final rule provides flexibilities to
the hiring standards for school nutrition
program directors in small LEAs, which
are those with 2,499 students or fewer
and for State directors of school
nutrition programs.
On July 1, 2015, USDA implemented
professional standards for school
nutrition personnel who manage and
operate the National School Lunch
Program (NSLP) and the School
Breakfast Program (SBP), as required by
the final rule Professional Standards for
State and Local School Nutrition
Programs Personnel as Required by the
Healthy, Hunger-Free Kids Act of 2010
(80 FR 11077) and section 7(g) of the
Child Nutrition Act of 1966, as amended
(42 U.S.C. 1776(g)). The professional
standards consist of hiring and
continuing education/training
requirements for new school nutrition
program directors of school food
authorities (SFAs), new State directors
of school nutrition programs, and other
staff noted in the regulation. Hiring and
continuing education/training standards
for school nutrition program directors
and other SFA staff are established at 7
CFR 210.30. Hiring and continuing
education/training standards for State
directors of school nutrition programs
and State directors of distributing
agencies are established at 7 CFR
235.11(g).
The professional standards are
intended to ensure that school nutrition
professionals who manage and operate
the NSLP and SBP have adequate
knowledge and training to meet program
requirements. Requiring set
qualifications to operate the NSLP and
SBP provides program operators with
the knowledge and tools necessary to
improve menu planning and service,
reduce eligibility and counting errors,
and enhance program integrity.
The hiring standards for school
nutrition program directors are
determined based on student enrollment
at three LEA enrollment size levels:
2,499 students or fewer; 2,500–9,999
students; and 10,000 or more students.
As discussed in the proposed rule
Hiring Flexibility Under Professional
Standards (83 FR 9447, March 6, 2018),
since implementation of the
professional standards in 2015, USDA
has received multiple inquiries from
State agencies on behalf of SFAs that are
facing challenges with the hiring
standards applicable to LEAs with 2,499
students or fewer. These challenges
include limited labor markets and
difficulty recruiting qualified candidates
for new school nutrition program
director positions. To assist the SFAs
with these challenges and provide more
local control over hiring decisions that
reflect their unique labor markets,
USDA proposed changes to the hiring
standards at 7 CFR 210.30(b)(1)(i) for
LEAs with 2,499 students or fewer.
Public comments received in response
to the proposed rule helped inform the
development of this final rule.
For school nutrition program directors
in LEAs with 2,499 students or fewer,
this final rule:
•Removes the requirement of school
nutrition program experience for new
directors and instead requires relevant
food service experience as the minimum
standard to qualify new directors;
•At the discretion of the State
agency, allows an SFA to hire a new
director with documented volunteer or
unpaid relevant food service experience
on an individual basis; and
•Allows a State agency to approve an
SFA to use the nonprofit school food
service account to pay the salary of a
school nutrition program director who
does not meet the hiring standards so
long as the SFA is complying with a
State agency-approved plan to ensure
the director will meet the professional
standards requirements.
For LEAs with fewer than 500
students, this final rule provides State
agencies the discretion to approve the
hiring of a school nutrition program
director who has less than the required
years of food service experience,
provided the applicant has the
minimum education specified in the
hiring standards for LEAs with 2,499
students or fewer.
For a new State director of school
nutrition programs, the current
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regulations at 7 CFR 235.11(g)(1)(i)
require a bachelor’s degree with an
academic major in food and nutrition,
food service management, dietetics,
family and consumer sciences, nutrition
education, culinary arts, business, or a
related field. USDA proposed to allow
an individual with a master’s degree in
one of those specified fields to be hired
as a State director of school nutrition
programs in recognition that many
professionals change careers and gain
experience through advanced education
in areas relevant to school nutrition and
to attract a larger number of
professionals qualified to lead and
manage the school nutrition programs
statewide. This was intended to help
ensure that individuals with relevant
advanced degrees are not prevented
from serving as State directors of school
nutrition programs. Therefore, this final
rule allows a State agency to hire as a
State director of school nutrition
programs an individual who has a
master’s or doctorate degree in one of
the specified fields regardless as to the
field of their bachelor’s degree.
II. Overview of Public Comments and
USDA Response
During the 60-day comment period
(March 6, 2018–May 7, 2018), USDA
received a total of 79 comments,
including 3 non-germane comments and
2 duplicates. All comments, except the
non-germane comments, are posted
online at www.regulations.gov (see
docket FNS–2017–0039, Hiring
Flexibility under Professional
Standards). These germane comments
were submitted by State government
personnel, State and national
associations, school food service staff,
school district personnel, food service
management companies, and
individuals. USDA appreciates the
thoughtful comments submitted by
stakeholders and the public.
In general, 36 comments favored the
proposed rule in its entirety and 9
comments supported portions of the
rule. Commenters in favor of the
flexibilities agreed that small LEAs have
a difficult time hiring qualified
candidates and that the proposed
flexibilities would help those struggling
LEAs find a qualified director by
allowing them to consider relevant food
service experience if the applicants do
not have specific school nutrition
program experience. Three comments
opposed the rule in its entirety, and four
comments opposed portions of the
proposed rule or the existence of
Professional Standards for School
Nutrition Professionals in general.
Commenters opposed to the flexibilities
noted that all school nutrition
professionals must follow the same
program requirements, regardless of the
size of the LEA. Other comments were
not clearly in favor of or opposed to the
rule, expressed different views, or
discussed other areas of school
nutrition.
The following discussion includes
public comments made in response to
specific proposed provisions, as well as
other suggestions made by commenters.
The discussion does not include the
public comments generally supportive
of, or opposed to, the rule in its entirety.
Hiring Standards Flexibilities for
School Nutrition Program Directors in
LEAs With 2,499 Students or Fewer
In order to assist SFAs operating in
LEAs with 2,499 students or fewer, the
proposed rule included changes to the
hiring standards for school nutrition
program directors at § 210.30(b)(1)(i).
The proposed changes included:
•Removing the requirement of school
nutrition program experience for new
school nutrition program directors and
instead requiring relevant food service
experience to meet the hiring standard;
•Providing State agencies with the
discretion to approve the hiring of an
applicant with volunteer or unpaid
relevant food service experience on an
individual basis; and
•For LEAs with fewer than 500
students, providing State agencies with
the discretion to approve the hiring of
a school food service director who has
less than the required years of relevant
food service experience, provided that
the applicant has the minimum
education to satisfy the hiring standards
for LEAs with 2,499 students or fewer.
Proposed Flexibility: Allowing Relevant
Food Service Experience in Addition to
School Nutrition Program Experience
In recognition of the difficulties that
LEAs with 2,499 students or fewer face
when seeking to recruit candidates for
school nutrition program director,
USDA proposed to provide flexibility in
§ 210.30(b)(1)(i) with regard to the
hiring standards for school nutrition
program directors to allow for the
consideration of relevant food service
experience gained inside or outside of
school nutrition program operations.
Comments
Six commenters specifically voiced
their support for the flexibility to allow
food service experience that was not
school nutrition program-specific in
order to expand the pool of qualified
applicants for the position of school
nutrition program director in LEAs with
2,499 students or fewer. These
commenters included four State
agencies, one school food service staff
member, and one food service
management company. These
commenters cited difficulties recruiting
to small LEAs individuals who have
experience specific to school food
service while also pointing out that
general food service experience adds
value to school food service operations.
Four commenters opposed this
flexibility. These commenters included
one professional organization, two
school food service staff members, and
one individual member of the public.
These commenters voiced concern that
allowing general food service
experience to substitute for school
nutrition program experience would
diminish the standards for school food
service in these LEAs.
USDA Response
USDA appreciates the comments
received on this flexibility. USDA agrees
that candidates with school nutrition
program experience are best prepared
for the school nutrition program director
position. These individuals are more
likely to be informed of the most current
school nutrition practices and
regulations and are therefore preferred.
However, applicants with experience
managing food service operations at a
healthcare facility, restaurant, civic/
community organization, or other type
of establishment have demonstrated
transferable skills in food service that
could be applied in a school food
service setting. Examples of such skills
include food handling and preparation,
financial management, and customer
service. By meeting the requisite
number of years of relevant food service
experience cited in § 210.30(b)(1)(i)(B),
(C), and (D), individuals will have
sufficient food service experience to
responsibly perform the duties required
of school nutrition program directors in
these LEAs with proportionate levels of
responsibility and complexity.
Program directors are still required to
complete annual continuing education/
training. Additionally, USDA
encourages new school nutrition
program directors hired with food
service experience that is not specific to
school nutrition settings to complete
additional school nutrition training or
work toward a State-recognized
certificate for school nutrition directors.
Several entities, such as the Institute for
Child Nutrition, offer no-cost or low-
cost continuing education/training in a
variety of formats, and such training is
an allowable use of the nonprofit school
food service account.
While we encourage hiring school
food service directors who have
previous school nutrition experience,
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USDA is aware of the difficulties LEAs
with 2,499 students or fewer face when
recruiting for such positions and wants
to provide flexibility to LEAs in meeting
their hiring needs. Flexibility to allow
relevant food service experience to
qualify applicants under the hiring
standards for LEAs with 2,499 students
or fewer expands the pool of applicants
for those LEAs in communities that may
have recruitment difficulties.
Accordingly, this final rule amends
§ 210.30(b)(1)(i)(B), (C), and (D) to allow
for the consideration of relevant food
service experience generally rather than
specific school nutrition program
experience.
Proposed Flexibility: State Agency
Discretion To Consider Volunteer or
Unpaid Work Experience
USDA proposed to provide flexibility
in § 210.30(b)(1)(i)(B), (C), and (D) by
giving State agencies the discretion to
allow LEAs with 2,499 students or fewer
to hire school nutrition program
directors who have relevant food service
experience whether that experience was
in a paid or unpaid/volunteer food
service position. The State agency
would use this discretion on an
individual, case-by-case basis. For
example, an applicant with paid and/or
unpaid experience managing food
service operations at a healthcare
facility, restaurant, civic/community
organization, or other type of
establishment could be considered for a
director’s position, provided that that
applicant also has the required
education.
Comments
Five commenters supported accepting
unpaid or volunteer experience toward
meeting the food service experience
standard. Those five commenters were
comprised of three State agencies, one
food service management company, and
one individual.
Four commenters—one State agency,
one professional organization and two
individuals—opposed the proposed
flexibility. Some of these commenters
stated that unpaid or volunteer
experience would weaken standards
when such experience is not substantive
and does not equip candidates with the
necessary skills and background in
school nutrition programs. One
commenter suggested requiring
verifiable written documentation of the
unpaid or volunteer experience.
USDA Response
USDA affirms the discretion of State
agencies to allow LEAs with 2,499
students or fewer to hire school
nutrition program directors with unpaid
food service experience on an
individual basis, as specified by the
State agency. The flexibility to consider
unpaid experience acknowledges that in
smaller communities there may be fewer
employment opportunities in food
service, but residents may be able to
volunteer to manage food service
activities for civic and community
organizations. An applicant for a school
nutrition program director position may
also have relevant experience in an
unpaid apprenticeship or internship.
A State agency has the discretion to
establish a process to use this flexibility.
The existing requirements for
experience in § 210.30(b)(1)(i)(B), (C),
and (D) are between one and three years
of relevant food service experience,
depending on the level of education
obtained by the applicant. Given the
parameters of this flexibility, as well as
the necessity of having such a flexibility
available in certain cases, this provision
is finalized in this rule. However, this
final rule requires that unpaid or
volunteer work, when used to qualify an
individual to be a school nutrition
program director, must be documented
to verify that the unpaid work is
relevant and actually occurred. For
example, documentation of volunteer
work in a school cafeteria could include
a letter from the school nutrition
program director stating the amount of
time the individual worked, the
substantive work they performed, and
the skills they learned. Accordingly, this
final rule amends § 210.30(b)(1)(i)(B),
(C), and (D) to allow State agency
discretion to consider relevant food
service experience for school nutrition
program directors to include
documented unpaid or volunteer work.
This discretion shall be applied on an
individual basis.
Other Comment: Use of the Nonprofit
School Food Service Account To Pay
Salaries
The regulations in § 210.30(b)(1)(i)
provide that new school nutrition
program directors in LEAs with an
enrollment of 2,499 students or fewer
must meet specific hiring standards.
These hiring standards include
minimum educational requirements that
may be combined with relevant work
experience, depending on the
educational degree held. Pursuant to
§§ 210.2, 210.14(a), 210.18(h), 210.18(l),
210.19(a), and 210.21(a), if a director
does not meet the hiring standards, an
SFA cannot use the nonprofit school
food service account to pay the
director’s salary.
Comments
Two commenters suggested that SFAs
be permitted to use the nonprofit school
food service account to pay the salary of
a director who does not meet the hiring
requirements, provided that the SFA is
implementing a Corrective Action Plan
to meet the professional standards
requirements.
USDA Response
USDA agrees with these commenters
and recognizes the difficulties some
LEAs with 2,499 students or fewer
experience when hiring new school
nutrition program directors. Generally,
if a school nutrition program director
does not meet the hiring standards,
failure to meet the standards would be
considered a finding for purposes of the
Administrative Review. In this instance,
the State agency could take fiscal action
by requiring the SFA to repay with non-
Federal funds any of the director’s
salary paid from the nonprofit school
food service account, and disallow
further payment to the director with
Federal funds, including the nonprofit
school food service account.
Requirements should be reasonable and
achievable, and the fiscal impact of not
being able to use the nonprofit school
food service account to pay the salary of
a school nutrition program director
could jeopardize an SFA’s financial
viability and ability to participate in the
NSLP and SBP. Therefore, for LEAs
with a student enrollment of 2,499 or
fewer, this final rule provides that a
State agency may approve an SFA to use
the nonprofit school food service
account to pay the salary of a school
nutrition program director who does not
meet the hiring standards so long as the
SFA is complying with a State agency-
approved plan to ensure the director
will meet the professional standards
requirements in § 210.30.
The plan must include reasonable
timeframes for the SFA to achieve and
maintain compliance and ensure the
director will meet the qualifications,
whether by gaining experience or
completing educational requirements.
The plan may also include required
training and/or educational courses.
LEAs with student enrollment of 2,499
or fewer have faced challenges in hiring
directors who meet the required
qualifications, and this flexibility will
help to address the needs of their
unique labor markets while ensuring
standards are still met. Accordingly, this
final rule amends § 210.30(b)(1)(i) to
allow a State agency to approve an SFA
to use the nonprofit school food service
account to pay the salary of a school
nutrition program director who does not
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meet the hiring standards so long as the
SFA is complying with a State agency-
approved plan to ensure the director
will meet the professional standards
requirements.
Other Comment: Higher Educational
Degrees
Comment
A commenter suggested USDA
expand to school nutrition program
directors the proposed flexibility for
State directors of school nutrition
programs to allow a master’s degree in
a specified field with a bachelor’s
degree in any field.
USDA Response
The regulation at § 210.30(b)(1) does
not currently allow a master’s or
doctorate degree in a specified field to
supplement a bachelor’s degree in any
field for school nutrition program
directors. USDA recognizes the value of
an advanced degree in a specified field,
and encourages school nutrition
professionals to continue to learn and
expand their knowledge in the field.
However, the flexibility suggested by
the commenter falls outside the scope of
the proposed rule and has not been
included in this final rule. USDA may
consider this suggestion in a future
rulemaking regarding professional
standards.
Other Comment: Scope of the
Flexibilities
Comments
Six commenters suggested expanding
the scope of the flexibilities beyond
those included in the proposed rule.
Two State agencies requested the school
nutrition director flexibilities for LEAs
with fewer than 500 students be
expanded to LEAs with an enrollment of
1,000 students. Another State agency
requested the flexibilities be applied to
all LEAs located in rural settings,
regardless of enrollment size. One State
association requested the proposed
flexibilities be applied to schools of all
enrollment categories. An individual
requested that LEAs with fewer than
500 students be exempt from the
standards entirely, while another
individual wanted to expand the
enrollment categories from below 2,500
students to 3,500 students.
USDA Response
USDA does not support expanding
the scope of the flexibilities to include
LEAs of larger sizes in § 210.30(b)(1)(ii)
and (iii). Such an action would be
inconsistent with the intent of the
proposed rule, which addressed hiring
challenges at LEAs with enrollments of
2,499 students or fewer. We note that as
LEA size increases, the level of
responsibility and complexity also
increases, which necessitates higher
standards. However, we also note the
existing Professional Standards
regulation includes several different
pathways for candidates to meet the
educational and experience
requirements for all LEA enrollment
size categories. In addition, we do not
agree with eliminating the professional
standards for schools with fewer than
500 students or expanding the
flexibilities for all rural schools.
However, we expect that the flexibilities
outlined in this final rule will address
the specific challenges of such schools
because these flexibilities will likely
expand the pool of qualified candidates.
Other Comment: School Consolidations
Comment
A professional organization provided
a comment discussing unique
challenges facing small school districts
in the process of consolidation with
other school districts. The organization
noted consolidation could increase the
level of student enrollment of an LEA.
In that case, the hiring standards for the
SFA director could shift into a larger
LEA enrollment category under the
Professional Standards regulation in
§ 210.30(b)(1). The organization
requested that USDA allow State
agencies to work with consolidating
school districts and provide a transition
period for the affected school nutrition
professionals to work towards the
professional standards requirements at
the school district’s new enrollment size
category.
USDA Response
Although USDA recognizes the
potential challenges for an SFA making
decisions regarding staff when school
districts combine, this final rule will not
provide the transition period requested
by the commenter. It is notable that we
did not receive any comments on this
issue from State agencies, which would
be most affected if USDA were to
establish a process for transition during
a school district consolidation.
Additionally, many factors are involved
in staffing decisions when school
districts combine. Therefore, instead of
developing a regulatory process, USDA
will work with the State agency, on an
individual basis, when a school district
consolidation shifts an SFA into a larger
enrollment size category for hiring
under Professional Standards in
§ 210.30(b)(1).
Other Comments: Combinations of
Experience, Training, and Education
Comments
Nine commenters who identified
themselves as school nutrition
professionals suggested allowing school
nutrition experience to substitute for
education. Three of these commenters
specifically recommended 10 years of
school nutrition experience be allowed
to substitute for a bachelor’s degree.
Two of the nine commenters noted the
importance of balancing the education
and experience requirements so
applicants with a weakness in one area
can compensate with strengths in
another.
USDA Response
While USDA understands school
nutrition experience is valuable in
operating school nutrition programs,
this final rule does not allow such
experience to substitute for education in
§ 210.30(b)(1). One of the purposes of
this rule is to provide flexibility for the
type of experience required for new
school nutrition program directors in
small LEAs, and it is outside the scope
of the rule to allow experience to
substitute for education. USDA
appreciates the various strengths and
experiences that school nutrition
program directors bring to the programs
they administer but is not expanding the
flexibilities to substitute experience for
education in this final rule. Educational
requirements bolster the credentials of
school nutrition program directors and
enhance their practical experience with
formal academic instruction. However,
this rule does not change the current
regulation at § 210.30(b)(1) that allows
school nutrition program directors hired
before July 1, 2015 to remain in their
positions or to transfer to other
positions in LEAs of the same or smaller
enrollment category.
Comment
One commenter suggested granting
flexibility to allow a State-recognized
certificate to substitute for education for
a school nutrition program director in
an LEA of any size.
USDA Response
USDA will continue to encourage
school nutrition professionals to learn
and expand their knowledge and skills
in the field. USDA recognizes the value
of a State-recognized certificate in
school nutrition programs as a means to
advance the profession. However, the
flexibility suggested by the commenter
falls outside the scope of the proposed
rule and has not been included in this
final rule.
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Other Comment: Waivers of the General
Professional Standards
Comment
One State agency indicated it would
like the ability for State agencies to
grant waivers to these regulatory
requirements on a case-by-case basis for
applicants who do not meet the
minimum hiring criteria.
USDA Response
USDA will not establish through this
final rule a separate waiver process for
these provisions since there is a general
waiver process in place, as prescribed in
Section 12(l) of the Richard B. Russell
National School Lunch Act, as
amended. Under the general waiver
process, USDA must determine that a
waiver facilitates the State’s (or other
service provider’s) ability to carry out
the purpose of the affected program; the
entity requesting the waiver must
provide notice and information to the
public regarding the proposed waiver;
and the entity requesting the waiver
must demonstrate that the waiver will
not increase the overall cost to the
Federal Government, or that any
additional cost will be paid from non-
Federal funds. USDA then periodically
reviews the performance of any State or
other service provider granted a waiver.
This waiver process may be used when
seeking waivers from the hiring
requirements for a new school nutrition
program director, as well as a new State
director of school nutrition programs.
Proposed Flexibility: Years of
Experience for School Nutrition
Program Directors in LEAs With Fewer
Than 500 Students
To provide additional assistance to
LEAs with fewer than 500 students,
USDA proposed to modify the current
optional flexibility at
§ 210.30(b)(1)(i)(D), which provides
State agencies discretion to allow an
SFA to hire a new school nutrition
program director with a high school
diploma or equivalent, and less than the
required years of relevant school
nutrition program experience. The
proposed rule would allow the State
agency to approve the hiring of an
applicant who has at least a high school
diploma or equivalent, but less than the
required years of relevant food service
experience.
Comments
Ten commenters expressed support
for the proposed flexibility. These
comments were received from four State
agencies, five schools or school food
service staff, and one food service
management company. One commenter
from a professional organization
opposed the proposed change, stating it
would weaken the overall hiring
standards. One commenter from a State
agency stated this proposed change
should only be acceptable if the new
director had a minimum of one year
experience in addition to the minimum
required education.
USDA Response
By expanding the existing optional
flexibility at § 210.30(b)(1)(i)(D) to
include other, higher educational levels,
USDA affirms its commitment to
providing LEAs with fewer than 500
students more local control to address
their unique hiring challenges. A new
director with a high school diploma or
equivalent is currently required to have
at least three years of experience, while
a new director with an associate’s
degree or a bachelor’s degree in any
major must have at least one year of
experience. Therefore, expanding the
existing flexibility to allow an LEA with
fewer than 500 students to hire an
individual with an academic degree
higher than a high school diploma, but
less than the required years of
experience, would pose little risk to the
food service program operation because
fewer years of experience is otherwise
allowed for an individual with a high
school diploma or equivalent. Further,
allowing an LEA with fewer than 500
students to hire an individual with the
required academic credentials but less
experience would expand the pool of
potentially suitable candidates and
ensure the standards are both reasonable
and achievable for these LEAs.
Accordingly, this final rule will revise
§ 210.30(b)(1)(i)(D) and add
§ 210.30(b)(1)(i)(E) to provide State
agencies discretion to allow an LEA
with fewer than 500 students to hire a
new school nutrition program director
with a high school diploma or
equivalency, an associate’s degree, or a
bachelor’s degree, but less than the
required years of relevant food service
experience.
Proposed Flexibility: Academic
Requirements for State Directors of
School Nutrition Programs
For a new State director of school
nutrition programs, the current
regulations at § 235.11(g)(1)(i) require a
bachelor’s degree with an academic
major in food and nutrition, food service
management, dietetics, family and
consumer sciences, nutrition education,
culinary arts, business, or a related field.
Pursuant to § 235.11(g)(1)(i)(iv)(A), a
master’s degree in one of the specified
fields is strongly preferred. To
encourage individuals with a master’s
degree in one of the specified fields but
a bachelor’s degree in a non-related field
to apply, USDA proposed to add the
option for a master’s degree in a
specified field to the basic qualifications
listed in § 235.11(g)(1)(i). However, to
emphasize the importance of a
foundational background in the
specified fields, USDA also proposed to
support a preference for both a
bachelor’s and a master’s degree in the
specified fields at
§ 235.11(g)(1)(i)(iv)(A).
Comments
Seven commenters expressed support
for the option to allow a master’s degree
in one of the specified fields when
hiring a State director. Comments
received in support of this flexibility
were from four State agencies, two
professional organizations, and one
individual.
USDA did not receive any comments
in opposition to this flexibility.
However, several commenters had
additional suggestions. One commenter
from a State agency suggested requiring
that State directors have a master’s
degree, which is not currently a
requirement. A commenter from another
State agency suggested allowing the
hiring of a State director with a
bachelor’s degree in any field if the
candidate has program and management
experience. A trade association
suggested allowing varying
combinations of educational degrees
and years of experience, such as a
bachelor’s degree in any field and four
years of experience managing Federal
child nutrition programs at a State
agency level; or a bachelor’s degree in
any field, four years of general program
management experience, and a State-
recognized certificate for school
nutrition directors.
USDA Response
To expand opportunities for highly
educated individuals to serve as State
directors of school nutrition programs,
this final rule will allow a State agency
to hire a candidate with a master’s or
doctorate degree in one of the specified
fields in § 235.11(g)(1)(i) regardless as to
the field of their bachelor’s degree.
Adding a master’s or doctorate degree in
one of the specified fields to the basic
qualifications acknowledges that many
professionals change careers and gain
experience through advanced education
in areas relevant to school nutrition. It
was not our intent to deny highly
educated individuals the ability to
qualify for these positions. In addition,
it was not our intent to exclude a type
of advanced degree in the specified
fields; therefore, we also add a doctorate
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degree to the qualifications. For
example, a State agency supervisor who
has a bachelor’s degree in political
science and a doctorate degree in
nutrition, who also meets the other
qualifications, would have a strong
general education plus advanced
education in one of the specified areas.
This final rule also affirms a preference
for both a bachelor’s degree and a
master’s degree, or bachelor’s and
doctorate, in the specified fields.
While we appreciate the additional
suggestions for flexibility, USDA will
maintain a hiring standard for State
directors of school nutrition programs
that is similar in structure to the
existing regulations. The existing
combination of specific education and
experience is straightforward as far as
facilitating implementation and is
sufficiently rigorous in recognition of
the position’s significance to school
nutrition programs in the States.
Accordingly, this final rule amends
§ 235.11(g)(1)(i) to allow a master’s or
doctorate degree in specified fields.
Additionally, this final rule amends
§ 235.11(g)(1)(iv)(A) to support a
preference for both a bachelor’s and a
master’s or doctorate degree in the
specified fields.
Procedural Matters
Executive Order 12866 and 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 final rule has been determined to
be not significant and was therefore not
reviewed further by the Office of
Management and Budget (OMB) in
conformance with Executive Order
12866.
Regulatory Impact Analysis
This rule has been designated as not
significant by the Office of Management
and Budget, therefore, no Regulatory
Impact Analysis is required.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601–612) requires Agencies to
analyze the impact of rulemaking on
small entities and consider alternatives
that would minimize any significant
impacts on a substantial number of
small entities. Pursuant to that review,
it has been certified that this rule would
not have a significant impact on a
substantial number of small entities.
This rule would not have an adverse
impact on small entities in the National
School Lunch Program and School
Breakfast Program, rather, it will ease
program operations by adding flexibility
in the hiring standards for new directors
in LEAs with 2,499 students or fewer
and new directors of State agencies.
Impact: The provisions of this rule
apply to LEAs with 2,499 students or
fewer, and to State agencies operating
the National School Lunch Program and
School Breakfast Program. These
entities meet the definitions of ‘‘small
governmental jurisdiction’’ and ‘‘small
entity’’ in the Regulatory Flexibility Act.
These entities would be able to quickly
benefit from the hiring flexibilities in
this rule.
Executive Order 13771
Executive Order 13771 directs
agencies to reduce regulation, control
regulatory costs, and provide that the
cost of planned regulations be prudently
managed and controlled through a
budgeting process.
This final rule is an E.O. 13771
deregulatory action that eases the
professional standards regulations for
State directors of school nutrition
programs and for school nutrition
program directors in LEAs with 2,499
students or fewer, which are often found
in rural communities facing labor
market challenges. This rule addresses
hiring challenges, such as recruitment of
qualified candidates, identified by the
State agencies that administer the Child
Nutrition Programs. It adds flexibility to
hiring standards by expanding the range
of allowable education for new State
directors, and the range of allowable
work experience for new local directors
in small LEAs.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments, and the private
sector. Under section 202 of the UMRA,
the Department generally must prepare
a written statement, including a cost
benefit analysis, for proposed and final
rules with ‘‘Federal mandates’’ that may
result in expenditures by State, local, or
Tribal governments, in the aggregate, or
the private sector, of $100 million or
more in any one year. When such a
statement is needed for a rule, Section
205 of the UMRA generally requires the
Department to identify and consider a
reasonable number of regulatory
alternatives and adopt the most cost
effective or least burdensome alternative
that achieves the objectives of the rule.
This final rule does not contain
Federal mandates (under the regulatory
provisions of Title II of the UMRA) for
State, local, and Tribal governments or
the private sector of $100 million or
more in any one year. Thus, the rule is
not subject to the requirements of
sections 202 and 205 of the UMRA.
Executive Order 12372
The National School Lunch Program
and School Breakfast Program are listed
in the Catalog of Federal Domestic
Assistance under Number 10.555 and
Number 10.553, respectively, and are
subject to Executive Order 12372, which
requires intergovernmental consultation
with State and local officials. (See 2 CFR
chapter IV.) Since the Child Nutrition
Programs are State-administered,
USDA’s Food and Nutrition Service
(FNS) Regional Offices have formal and
informal discussions with State and
local officials, including representatives
of Indian Tribal Organizations, on an
ongoing basis regarding program
requirements and operation.
Discussions also take place in response
to technical assistance requests
submitted by the State agencies to the
FNS Regional Offices. This regular
interaction with State and local
operators provides USDA with valuable
input that informs rulemaking. Based on
the inquiries and waiver requests from
the State agencies disclosing challenges
with the professional standards
regulations, USDA is providing specific
flexibilities to address the requirement
issues in a manner that promotes
program efficiency and effectiveness.
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
regulations describing the agency’s
considerations in terms of the three
categories called for under Section
(6)(b)(2)(B) of Executive Order 13132.
The Department has considered the
impact of this rule on State and local
governments and has determined that
this rule does not have federalism
implications. Therefore, under section
6(b) of the Executive Order, a federalism
summary is not required.
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Executive Order 12988, Civil Justice
Reform
This final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. This rule is intended to
have preemptive effect with respect to
any State or local laws, regulations or
policies which conflict with its
provisions or which would otherwise
impede its full and timely
implementation. This rule is not
intended to have retroactive effect. Prior
to any judicial challenge to the
provisions of the final rule, all
applicable administrative procedures
must be exhausted.
Civil Rights Impact Analysis
USDA has reviewed this final rule in
accordance with USDA Regulation
4300–4, ‘‘Civil Rights Impact Analysis,’’
to identify any major civil rights
impacts the rule might have on Program
participants on the basis of age, race,
color, national origin, sex, or disability.
After a careful review of the rule’s intent
and provisions, USDA has determined
that this rule is not expected to affect
the participation of protected
individuals in the National School
Lunch Program and School Breakfast
Program, or limit the ability of protected
classes of individuals to serve as new
directors in LEAs and State agencies.
The provisions of this rule add
flexibility to the existing hiring
standards for new directors in order to
address difficulties faced by program
operators in finding qualified
applicants.
Executive Order 13175
Executive Order 13175 requires
Federal agencies to consult and
coordinate with Tribes on a
government-to-government basis on
policies that have Tribal implications,
including regulations, legislative
comments or proposed legislation, and
other policy statements or actions that
have substantial direct effects on one or
more Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
USDA notified Tribal leaders about the
proposed rule to encourage public
comments, and briefed Tribal leaders at
the conference call scheduled by the
FNS Office of Tribal Relations on March
14, 2018. USDA will also notify Tribal
leaders about this final rule, and intends
to brief Tribal leaders at one of the
periodic consultations or conference
calls scheduled by the FNS Office of
Tribal Relations.
USDA has assessed the impact of this
final rule on Indian tribes and
determined that this rule does not, to
our knowledge, have negative Tribal
implications that require Tribal
consultation under E.O. 13175. We are
unaware of any current Tribal laws that
could be in conflict with the provisions
of this rule and anticipate that the hiring
flexibilities will benefit Tribal schools.
The flexibilities provided by this rule
are expected to increase the pool of
candidates qualified to serve as new
directors of school nutrition programs in
small LEAs. This is expected to benefit
Tribal communities, which often
experience difficulty attracting qualified
school nutrition personnel.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. Chap. 35; 5 CFR 1320)
requires the Office of Management and
Budget (OMB) approve all collections of
information by a Federal agency 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 rule does not contain
information collection requirements
subject to approval by OMB under the
Paperwork Reduction Act of 1995.
E-Government Act Compliance
The Department is committed to
complying with the E-Government Act,
to promoting the use of the internet and
other information technologies to
provide increased opportunities for
citizen access to Government
information and services, and for other
purposes.
List of Subjects
7 CFR Part 210
Children, Commodity School
Program, Food assistance programs,
Grant programs—health, Grant
programs—education, School breakfast
and lunch programs, Nutrition,
Reporting and recordkeeping
requirements.
7 CFR Part 235
Administrative practice and
procedure, Food assistance programs,
Grant programs—health, Grant
programs—education, School breakfast
and lunch programs, Nutrition,
Reporting and recordkeeping
requirements.
Accordingly, 7 CFR parts 210 and 235
are amended as follows:
PART 210—NATIONAL SCHOOL
LUNCH PROGRAM
■1. The authority citation for part 210
continues to read as follows:
Authority: 42 U.S.C. 1751–1760, 1779.
■2. Amend § 210.30 by:
■a. Revising paragraph (b)(1)(i) and;
■b. Revising the table in paragraph
(b)(2).
The revisions read as follows:
§ 210.30 School nutrition program
professional standards.
* * * * *
(b) * * *
(1) * * *
(i) School nutrition program directors
with local educational agency
enrollment of 2,499 students or fewer.
Directors must meet the requirements in
paragraph (b)(1)(i)(A), (B), (C), or (D) of
this section. However, a State agency
may approve a school food authority to
use the nonprofit school food service
account to pay the salary of a school
nutrition program director who does not
meet the hiring standards herein so long
as the school food authority is
complying with a State agency-
approved plan to ensure the director
will meet the requirements.
(A) A bachelor’s degree, or equivalent
educational experience, with an
academic major or concentration in food
and nutrition, food service management,
dietetics, family and consumer sciences,
nutrition education, culinary arts,
business, or a related field;
(B) A bachelor’s degree, or equivalent
educational experience, with any
academic major or area of concentration,
and either a State-recognized certificate
for school nutrition directors, or at least
one year of relevant food service
experience. At the discretion of the
State agency, and on an individual
basis, documented relevant food service
experience may be unpaid;
(C) An associate’s degree, or
equivalent educational experience, with
an academic major or area of
concentration in food and nutrition,
food service management, dietetics,
family and consumer sciences, nutrition
education, culinary arts, business, or a
related field and at least one year of
relevant food service experience. At the
discretion of the State agency, and on an
individual basis, documented relevant
food service experience may be unpaid;
or
(D) A high school diploma or
equivalency (such as the general
educational development diploma), and
at least three years of relevant food
service experience. At the discretion of
the State agency, and on an individual
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basis, documented relevant food service
experience may be unpaid. Directors
hired under this criterion are strongly
encouraged to work toward attaining an
associate’s degree in an academic major
in at least one of the fields listed in
paragraph (b)(1)(i)(C).
(E) For a local educational agency
with less than 500 students, the State
agency may approve the hire of a
director who meets one of the
educational criteria in paragraphs
(b)(1)(i)(B) through (D) but has less than
the required years of relevant food
service experience.
* * * * *
(2) * * *
S
UMMARY OF
S
CHOOL
N
UTRITION
P
ROGRAM
D
IRECTOR
P
ROFESSIONAL
S
TANDARDS BY
L
OCAL
E
DUCATIONAL
A
GENCY
S
IZE
Minimum require-
ments for directors Student enrollment 2,499 or less Student enrollment 2,500–9,999 Student enrollment 10,000 or more
Minimum Education
Standards (re-
quired) (new di-
rectors only).
Bachelor’s degree, or equivalent edu-
cational experience, with academic
major or concentration in food and
nutrition, food service management,
dietetics, family and consumer
sciences, nutrition education, cul-
inary arts, business, or a related
field
Bachelor’s degree, or equivalent edu-
cational experience, with academic
major or concentration in food and
nutrition, food service management,
dietetics, family and consumer
sciences, nutrition education, cul-
inary arts, business, or a related
field;
Bachelor’s degree, or equivalent edu-
cational experience, with academic
major or concentration in food and
nutrition, food service management,
dietetics, family and consumer
sciences, nutrition education, cul-
inary arts, business, or a related
field;
OR OR OR
Bachelor’s degree, or equivalent edu-
cational experience, with any aca-
demic major or area of concentra-
tion, and either a State-recognized
certificate for school nutrition direc-
tors or at least 1 year of relevant
food service experience;
Bachelor’s degree, or equivalent edu-
cational experience, with any aca-
demic major or area of concentra-
tion, and a State-recognized certifi-
cate for school nutrition directors;
Bachelor’s degree, or equivalent edu-
cational experience, with any aca-
demic major or area of concentra-
tion, and a State-recognized certifi-
cate for school nutrition directors;
OR OR OR
Associate’s degree, or equivalent edu-
cational experience, with academic
major or concentration in food and
nutrition, food service management,
dietetics, family and consumer
sciences, nutrition education, cul-
inary arts, business, or a related
field; and at least 1 year of relevant
school nutrition program experience;
OR
High school diploma (or GED) and 3
years of relevant food service expe-
rience.
Bachelor’s degree in any academic
major and at least 2 years of rel-
evant school nutrition program expe-
rience.
OR
Associate’s degree, or equivalent edu-
cational experience, with academic
major or concentration in food and
nutrition, food service management,
dietetics, family and consumer
sciences, nutrition education, cul-
inary arts, business, or a related
field; and at least 2 years of relevant
school nutrition program experience.
Bachelor’s degree in any major and at
least 5 years of experience in man-
agement of school nutrition pro-
grams.
Minimum Education
Standards (pre-
ferred) (new direc-
tors only).
Directors hired without an associate’s
degree are strongly encouraged to
work toward attaining associate’s
degree upon hiring.
Directors hired without a bachelor’s
degree strongly encouraged to work
toward attaining bachelor’s degree
upon hiring.
Master’s degree, or willingness to work
toward master’s degree, preferred.
At least 1 year of management experi-
ence, preferably in school nutrition,
strongly recommended.
At least 3 credit hours at the university
level in food service management
plus at least 3 credit hours in nutri-
tional sciences at time of hiring
strongly preferred.
Minimum Prior
Training Stand-
ards (required )
(new directors
only).
At least 8 hours of food safety training is required either not more than 5 years prior to their starting date or completed
within 30 calendar days of employee’s starting date.
* * * * *
PART 235—STATE ADMINISTRATIVE
EXPENSE FUNDS
■3. The authority citation for part 235
continues to read as follows:
Authority: Secs. 7 and 10 of the Child
Nutrition Act of 1966, 80 Stat. 888, 889, as
amended (42 U.S.C. 1776, 1779).
§ 235.11 [Amended]
■4. Amend § 235.11 as follows:
■a. In paragraph (g)(1)(i) after the words
‘‘Bachelor’s degree’’, add the words ‘‘,
master’s degree, or doctorate degree’’;
and
■b. In paragraph (g)(1)(iv)(A), remove
the words ‘‘Master’s degree’’ and add in
their place the words, ‘‘Both a
bachelor’s degree and a master’s or
doctorate degree’’.
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1
Public Law 110–234.
2
73 FR 64868.
3
7 U.S.C. 601–614.
4
Public Law 112–240.
5
Public Law 113–79.
6
73 FR 64868.
7
See addition of 7 CFR 1051.73 in §1145.2(a).
Dated: February 21, 2019.
Brandon Lipps,
Administrator, Food and Nutrition Service.
[FR Doc. 2019–03524 Filed 2–28–19; 8:45 am]
BILLING CODE 3410–30–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1145
[Doc. No. AMS–DA–18–0097]
Reauthorization of Dairy Forward
Pricing Program
AGENCY
: Agricultural Marketing Service,
USDA.
ACTION
: Final rule.
SUMMARY
: This final rule reauthorizes
the Dairy Forward Pricing Program
(DFPP) in accordance with the
Agriculture Improvement Act of 2018
(2018 Farm Bill). Establishing new
contracts under the DFPP has been
prohibited since the expiration of the
program on September 30, 2018. The
2018 Farm Bill reauthorized the
program to allow handlers to enter into
new contracts until September 30, 2023.
Any forward contract entered prior to
the September 30, 2023, deadline is
subject to a September 30, 2026,
expiration date.
DATES
: Effective Date: March 4, 2019.
FOR FURTHER INFORMATION CONTACT
:
Roger Cryan, Director, Economics
Division, USDA/AMS/Dairy Programs,
Stop 0229—Room 2753–S, 1400
Independence Avenue SW, Washington,
DC 20250–0231; telephone: (202) 720–
7091; or, email: roger.cryan@usda.gov.
SUPPLEMENTARY INFORMATION
: The Food,
Conservation, and Energy Act of 2008
(2008 Farm Bill)
1
initially established
the DFPP.
2
The DFPP allows milk
handlers, under the Agricultural
Marketing Agreement Act of 1937,
(AMAA)
3
to pay producers or
cooperative associations of producers a
negotiated price for producer milk,
rather than the Federal order minimum
blend price for non-fluid classes of milk
(Classes II, III, and IV under the Federal
Milk Marketing Order (FMMO) system).
The DFPP does not allow for forward
contracting of fluid or Class I milk.
Following the initial expiration of the
DFPP which prevented the
establishment of new contracts after
September 30, 2012, the ‘‘American
Taxpayer Relief Act of 2012,’’ (ATRA)
4
revised the program to allow handlers to
enter into new contracts until
September 30, 2013. The ‘‘Agricultural
Act of 2014’’ (2014 Farm Bill)
5
then
extended the program to allow new
contracts until September 30, 2018.
Establishing new contracts under the
DFPP has been prohibited since the
expiration of the program on September
30, 2018. Any forward contract
established prior to the September 30,
2018, deadline is subject to a September
30, 2021, expiration date.
Participation in the DFPP is voluntary
for dairy farmers, dairy farmer
cooperatives, and handlers. Handlers
may not require producer participation
in a forward pricing program as a
condition for accepting milk. USDA,
including Market Administrator
personnel, does not determine the terms
of forward contracts or enforce
negotiated prices. This regulation also
does not affect contractual arrangements
between a cooperative association and
its members.
Under the DFPP, regulated handlers
must still account to the FMMO pool for
the classified use value of their milk.
Regulated handlers claiming exemption
from the Federal order minimum
pricing provisions must submit to the
Market Administrator a copy of each
forward contract. The contract must
contain a disclosure statement—either
as part of the contract itself or as a
supplement—to ensure producers
understand the nature of the program as
well as the basis on which they will be
paid for their milk. Contracts that do not
contain a disclosure statement are
deemed invalid and returned to the
handler. For the first month the program
is effective, contracts must be signed on
or after the day the program becomes
effective, and the contract must be
received by the Market Administrator by
the 15th day of that month. For
example, if the program becomes
effective on February 15, contracts for
March milk must be signed between
February 15 and February 28, and
copies must be received by the Market
Administrator by March 15.
Handlers with forward contracts
remain subject to all other milk
marketing order provisions. Payments
specified under a forward contract must
be made on or before the same date as
the federal order payments they replace.
Required payment dates are specified in
§ 1145.2(e) of the regulations.
This final rule reauthorizes producers
and cooperative associations of
producers to enter into forward price
contracts under the DFPP through
September 30, 2023. All terms of the
new forward contracts must expire prior
to September 30, 2026. All other
provisions and requirements of the
program as provided for in the final
rule
6
published October 31, 2008, are
still in effect. This document also
provides notice that reauthorization of
the DFPP applies to the milk regulated
by the recently established California
FMMO in addition to the other ten
FMMOs.
7
Executive Orders 12866 and 13771
This rule has been determined to be
not significant for purposes of Executive
Order 12866, and therefore has not been
reviewed by the Office of Management
and Budget (OMB). In addition, because
this rule does not meet the definition of
a significant regulatory action, it does
not trigger the requirements contained
in Executive Order 13771. See OMB’s
Memorandum titled ‘‘Interim Guidance
Implementing Section 2 of the Executive
Order of January 30, 2017, titled
‘Reducing Regulation and Controlling
Regulatory Costs’ ’’ (February 2, 2017).
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. It is not intended to have a
retroactive effect. The adopted
amendments do not preempt any state
or local laws, regulations, or policies,
unless they present an irreconcilable
conflict with this rule. There are no
administrative procedures which must
be exhausted prior to judicial challenge
to the provisions of this rule.
Regulatory Flexibility Act and
Paperwork Reduction Act
In accordance with the Regulatory
Flexibility Act (5 U.S.C. 601–612), the
Agricultural Marketing Service (AMS)
has considered the economic impact of
this action on small entities and has
certified that this rule will not have a
significant economic impact on a
substantial number of small entities.
For the purpose of the Regulatory
Flexibility Act, a dairy farm is
considered a small business if it has an
annual gross revenue of less than
$750,000, and a dairy products
manufacturer is a small business if it
has fewer than 500 employees.
Based on AMS data, the milk of
33,481 dairy farmers was pooled on the
Federal milk marketing order system. Of
the total, 32,958 dairy farmers, or 98
percent, were considered small
businesses. During the same month, 301
handler plants were regulated by or
reported their milk receipts to be pooled
VerDate Sep<11>2014 16:31 Feb 28, 2019 Jkt 247001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\01MRR1.SGM 01MRR1
jbell on DSK30RV082PROD with RULES
