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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Notices Timothy English, Acting Administrator, Food and Nutrition Service.
FR Doc. 202116642 Filed 8321; 8:45 am BILLING CODE 341030C

DEPARTMENT OF AGRICULTURE
Food and Nutrition Service Request for Information: Buy American in the National School Lunch Program and School Breakfast Program Food and Nutrition Service FNS, USDA.
ACTION: Notice: Request for information.
AGENCY:

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 Americas 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 womens 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:
Federal eRulemaking Portal preferred method: Go to http
www.regulations.gov. Follow the online instructions for submitting comments.
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.

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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, 7036053223.
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 Americas 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 104d of the William F.
Goodling Child Nutrition Reauthorization Act of 1998 Pub. L.
105336 added a provision, Section 12n to the National School Lunch Act NSLA 42 U.S.C. 1760n, 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
210.21d3 and 7 CFR 220.16d3.
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.
1760n4.

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Section 12n 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 products 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., nondomestic in circumstances when use of domestic foods is truly not practicable. These exceptions, as determined by the SFA, are:
The product is not produced or manufactured in the United States in sufficient and reasonably available quantities of a satisfactory quality; or 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 SFAs 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 exceptions. State agencies must ensure SFA compliance with the Buy American provision when conducting oversight processes.

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