Attachment BB Federal Register Notice - Simplifying Meal Service and Monitoring Requirements in the National School Lunch and School Breakfast Program Proposed Rule

4094

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 215, 220, 226, and 235
[FNS–2019–0007]
RIN 0584–AE67

Simplifying Meal Service and
Monitoring Requirements in the
National School Lunch and School
Breakfast Programs
Food and Nutrition Service
(FNS), USDA.
ACTION: Proposed rule.
AGENCY:

This rulemaking proposes
changes to simplify meal pattern and
monitoring requirements in the National
School Lunch and School Breakfast
Programs. The proposed changes,
including optional flexibilities, are
customer-focused and intended to help
State and local Program operators
overcome operational challenges that
limit their ability to manage these
Programs efficiently. In the National
School Lunch Program, the proposed
rule would add flexibility to the existing
vegetable subgroups requirement. In the
School Breakfast Program, the proposed
rule would make it easier for menu
planners to offer meats/meat alternates
and grains interchangeably (without
offering a minimum grains requirement
daily), and would allow schools to offer
1⁄2 cup of fruit in breakfasts served
outside the cafeteria to reduce food
waste. Other proposed changes would
make it easier for local Program
operators to plan menus for different
age/grade groups, and expand the entre´e
exemption service timeframe for
competitive foods. To improve
efficiency in Program monitoring, the
proposed rule also would ease several
administrative review requirements,
including the review cycle. The
monitoring changes aim to decrease the
burden associated with administrative
reviews while rewarding program
integrity initiatives at the State and local
levels. This rule also proposes to make
updates, clarifications, and technical
corrections throughout other parts of its
regulations. Implementation of the wide
range of proposed changes and
flexibilities is expected to simplify
operational requirements, increase
efficiency, and make it easier for State
and local Program operators to feed
children.
DATES:
Comment date: Online comments
submitted through the Federal
eRulemaking Portal on this proposed
rule must be received on or before

jbell on DSKJLSW7X2PROD with PROPOSALS3

SUMMARY:

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

March 23, 2020. Mailed comments on
this rule must be postmarked on or
before March 23, 2020.
Comments on Paperwork Reduction
Act requirements: Comments on the
information collection requirements
associated with this rule must be
received by March 23, 2020.
ADDRESSES: The USDA, Food and
Nutrition Service (FNS) invites
interested persons to submit written
comments on this proposed rule.
Comments may be submitted in writing
by one of the following methods:
• Federal eRulemaking Portal: Go to
http://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Regular U.S. Mail: School Programs
Branch, Policy and Program
Development Division, Food and
Nutrition Service, P.O. Box 2885,
Fairfax, Virginia 22031.
• Overnight, Courier, or Hand
Delivery: School Programs Branch,
Policy and Program Development
Division, Food and Nutrition Service,
1320 Braddock Place, 4th Floor,
Alexandria, Virginia 22314.
All written comments submitted in
response to this proposed rule 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. FNS will make the written
comments publicly available via http://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Tina
Namian, Chief, School Programs
Branch, Policy and Program
Development Division, Food and
Nutrition Service, 703–305–2590.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
The National School Lunch Program
(NSLP) and School Breakfast Program
(SBP) provide nutritious, well-balanced
meals to millions of children each
school day. Section 9(f)(1) of the
Richard B. Russell National School
Lunch Act (NSLA), as amended, 42
U.S.C. 1758(f)(1), requires that school
meals are consistent with the goals of
the latest Dietary Guidelines for
Americans (Dietary Guidelines). USDA
regulations at 7 CFR 210.10 and 220.8
detail the nutrition standards for the
NSLP and SBP, respectively.
Section 201 of Public Law 111–296
(the Healthy, Hunger-Free Kids Act of
2010, HHFKA) amended Section 4(b) of
the NSLA (42 U.S.C. 1753(b)), to require
USDA to update the meal patterns and
nutrition standards for school meals

PO 00000

Frm 00002

Fmt 4701

Sfmt 4702

based on recommendations in a report
issued by the Health and Medicine
Division of the National Academies of
Science, Engineering, and Medicine
(formerly, the Institute of Medicine). In
response, the final rule, Nutrition
Standards in the National School Lunch
and School Breakfast Programs (77 FR
4088, published January 26, 2012),
updated the school meal requirements
consistent with the 2010 Dietary
Guidelines, as recommended in the
report School Meals: Building Blocks for
Healthy Children.1 In part, the 2012
final rule: (1) Established weekly
vegetable subgroup requirements in the
NSLP; (2) codified NSLP and SBP meal
patterns for three distinct age/grade
groups (K–5, 6–8, and 9–12); (3)
permitted meats/meat alternates to be
offered in place of grains in the SBP,
provided that minimum daily grain
requirements were met; (4) increased
the amount of fruit offered in the SBP
to one cup for all age/grade groups; (5)
allowed only flavored and unflavored
fat-free and unflavored low-fat milk; (6)
established calorie and sodium limits,
and prohibited trans fats in the NSLP
and the SBP; and (7) increased the
frequency of State agency administrative
reviews of school food authorities
(SFAs) to once every 3 years (from 5
years).
In Section 4(b)(3)(B) of the NSLA (42
U.S.C. 1753(b)(3)(B)), schools were
incentivized to adopt the new meal
pattern requirements through a
performance-based reimbursement.
SFAs certified as compliant with the
lunch meal pattern receive an additional
reimbursement of seven cents per lunch
(increased by inflation from six cents on
July 1, 2019) (7 CFR 210.7(d)).2 To
facilitate the transition to the 2012 meal
pattern, per Section 22(a) of the NSLA,
USDA also established a 3-year
administrative review cycle, combining
the nutritional assessment of school
meals with the operations review for
stronger Program accountability (7 CFR
210.18).
As part of a holistic effort to improve
school nutrition environments, Section
208 of HHFKA amended Section 10 of
the Child Nutrition Act of 1966 (42.
U.S.C. 1779) to require that USDA
establish standards for foods sold to
students on campus during the school
1 Institute of Medicine. 2010. School Meals:
Building Blocks for Healthy Children. Washington,
DC: The National Academies Press. Available at:
https://www.fns.usda.gov/sites/default/files/School
MealsIOM.pdf.
2 Notice. National School Lunch, Special Milk,
and School Breakfast Programs, National Average
Payments/Maximum Reimbursement Rates (84 FR
38590, published August 7, 2019). Available at:
https://www.govinfo.gov/content/pkg/FR-2019-0807/pdf/2019-16903.pdf.

E:\FR\FM\23JAP3.SGM

23JAP3

jbell on DSKJLSW7X2PROD with PROPOSALS3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
day outside of the school meal
programs. These nutrition standards are
commonly referred to as the Smart
Snacks in School (SSIS) standards.
These requirements, codified in 7 CFR
210.11, established minimum nutrition
standards for foods and beverages sold
to students on campus during the school
day and permit the sale of calorie-free,
flavored water to grades 9–12 only (§
210.11(m)). To help manage leftovers
and prevent food waste, the rule also
exempted entre´es offered in the SBP and
NSLP from the SSIS nutrition standards
on the day offered in the SBP or NSLP
menu and the day after (7 CFR
210.11(c)).
Since implementation of these
regulatory actions, some Program
operators have experienced challenges,
such as lower student participation and
increased food waste. To assist
operators, in May 2017, the Secretary
committed to giving schools more
control over food service decisions, and
greater ability to offer wholesome,
nutritious, and appealing meals to
students. This commitment resulted in
this proposed rule, and two previous
rulemaking actions intended to increase
operational flexibilities in the NSLP and
SBP,3 as described in the following
section.
Ensuring that the school meal
programs are carried out as prescribed
in statute and regulations is a key
administrative responsibility at every
level. Federal, State, and local Program
staff share the responsibility to ensure
that all aspects of the Child Nutrition
Programs are conducted with integrity
and that taxpayer dollars are used as
intended. Prior to School Year (SY)
2013–2014, two separate processes were
used to assess compliance with Program
regulations; the Coordinated Review
Effort was conducted on a 5-year cycle
and the School Meals Initiative, a
nutritional assessment of meals, was
done separately on a 3-year cycle.
Section 207 of HHFKA amended section
22(a) of the NSLA (42 U.S.C. 1769c),
and directed USDA to create a unified
accountability system under which
States would ‘‘conduct audits and
reviews during a 3-year cycle or other
period prescribed by the Secretary.’’
USDA developed a simplified, unified
monitoring process intended to
strengthen Program integrity through
more robust, effective, and frequent

monitoring using a 3-year cycle. In
2016, USDA published a final rule
establishing the current administrative
review process at 7 CFR 210.18.4 The
process is a comprehensive review of
Program requirements, such as
eligibility and operational processes
(previously covered in the Coordinated
Review Effort) and the nutritional
assessment of school meals (previously
covered in the School Meals Initiative).
The administrative review also provides
opportunities for States and SFAs to
collaborate to ensure that students are
offered wholesome, nutritious, and
appealing meals and Programs are
successfully operated.
Some State agencies and SFAs have
experienced challenges with parts of the
new administrative review
requirements, particularly the
requirement to review SFAs more
frequently, on a 3-year review cycle. In
response, USDA allowed States
experiencing significant challenges
meeting the 3-year review cycle
requirement to submit waiver requests
to extend their administrative review
cycle.5 In the first two months after
issuing this flexibility, USDA received
waiver requests from more than 30 State
agencies. State agencies that received
review cycle waivers often faced staffing
and operational challenges that
negatively impacted their ability to
fulfill Program administration and
oversight responsibilities. The waivers
give State agencies additional time to
complete oversight activities and, in
some cases, provide technical assistance
to SFAs to enhance Program operations.
The transition to the 3-year
administrative review cycle coincided
with a more robust review of the school
meal programs, which included a
review of an SFA’s financial practices
through the Resource Management
Module. The Resource Management
Module includes an overall assessment
of risk and comprehensive review of
SFAs that are at risk for noncompliance
in the resource management areas. The
transition also took place as States put
a renewed emphasis on improving State
oversight of procurement practices.
USDA sought extensive input from State
agencies on how to streamline the
review process while maintaining
effective oversight. Through this
engagement, USDA has learned more
about the unique circumstances and

3 The final rule, Hiring Flexibility Under
Professional Standards (84 FR 6953, published
March 1, 2019) provides flexibilities to professional
standards requirements. The final rule, Child
Nutrition Programs: Flexibilities for Milk, Whole
Grains, and Sodium Requirements (83 FR 63775,
published December 12, 2018), provides flexibilities
related to sodium, whole grains, and flavored milk.

4 Final rule. Administrative Reviews in the School
Nutrition Programs (81 FR 50170, published July
29, 2016).
5 Policy memo SP 12–2019. Flexibility for the
Administrative Review Cycle Requirement,
published February 22, 2019. Available at: https://
fns-prod.azureedge.net/sites/default/files/cn/SP122019os.pdf.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

PO 00000

Frm 00003

Fmt 4701

Sfmt 4702

4095

challenges faced by States, as well as
best practices and potential flexibilities
to help State agencies fulfill oversight
responsibilities.
This proposed rule builds on
operational flexibilities recently
provided to NSLP and SBP operators,
including the administrative review
waivers. It proposes targeted flexibilities
and regulatory changes to simplify
Program oversight and operations. Most
of the operational flexibilities proposed
in this rule would be optional and
primarily intended for States or local
operators experiencing challenges with
specific requirements. The intent of this
proposed rule is to give the public an
opportunity to provide comments that
will inform USDA’s development of a
final rule on operational flexibilities for
meal pattern and monitoring
requirements.
II. Need for Action
In the seven years following the 2012
rulemaking, some Program operators
have experienced challenges with
specific requirements. In May 2017,
Secretary of Agriculture Sonny Perdue
issued a proclamation emphasizing
USDA’s commitment to provide
operational flexibilities to help schools
offer wholesome and appealing meals
that students want to eat.
The proclamation precipitated an
interim final rule that provided shortterm operational flexibilities for
flavored low-fat milk, sodium, and
whole grains for School Year (SY) 2018–
2019. These flexibilities were codified
in the final rule Child Nutrition
Programs: Flexibilities for Milk, Whole
Grains, and Sodium Requirements
(published December 12, 2018, 83 FR
63775), and adopted permanently for SY
2019–2020 and beyond. The 2018
revisions affirm USDA’s commitment to
giving schools more control over food
service decisions and greater ability to
offer wholesome, nutritious, and
appealing meals to children that reflect
local preferences and reduce food waste.
Some Program operators have
successfully implemented the 2012
meal pattern requirements in a way that
encourages student participation and
healthy eating; other Program operators
require additional flexibility. As part of
ongoing efforts to support State and
local Program operators, USDA held
seven listening sessions and roundtable
discussions with school food service
staff and school district administrators,
industry representatives, and State
agency staff in 2018 (on July 11,
September 20, October 2, October 23,
and December 6) and 2019 (on February
25 and July 15) to solicit additional
information about Program challenges

E:\FR\FM\23JAP3.SGM

23JAP3

4096

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

jbell on DSKJLSW7X2PROD with PROPOSALS3

and suggestions for improvement. This
feedback was consistent with feedback
that senior Child Nutrition Program
policy officials receive from
stakeholders during in-person meetings
and conferences. Some Program
operators describe persistent challenges
with complex requirements that limit
their ability to feed children.
Administrative challenges identified by
State and local Program operators
include:
• Completing more comprehensive
administrative reviews in a shorter, 3year cycle;
• Submitting reports required by
FNS;
• Preventing food waste;
• Meeting the weekly vegetable
requirements; and
• Serving meals that meet the
requirements for various age/grade
groups.
Program operators also suggested
improvements to competitive food and
beverage requirements that would
permit schools to reduce food waste and
offer more appealing foods and
beverages to students.
Additionally, language included in
House Report No. 114–531 (2016) led
USDA to examine administrative and
reporting challenges faced by State
agencies and SFAs. Through
discussions and representative surveys,
USDA identified requirements that are
most burdensome for Program
operators.6 The Child Nutrition
Reporting Burden Study resulted in a set
of considerations for reducing burden at
the State and local levels.7
One recommendation from the Child
Nutrition Reporting Burden Study is for
USDA to implement a risk-based
administrative review cycle. About twothirds of State agency participants
identified the 3-year cycle as a major
burden. State agency and SFA
participants suggested that a risk-based
approach could balance the need to
maintain Program integrity and the
amount of staff time and resources
required to complete administrative
reviews. Study participants suggested
that lower-risk SFAs could be reviewed
less frequently to alleviate burden,
which would free up more resources for
State agencies to provide technical
assistance to SFAs. High-risk SFAs
could be reviewed more frequently,
6 House Report No. 114–531 (2016) available at:
https://www.congress.gov/114/crpt/hrpt531/CROT114hrpt531.pdf.
7 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, Child
Nutrition Reporting Burden Analysis Study by
Steven Garasky, Linda Piccinino, Kevin Conway,
Allison Magness, and Elizabeth Gearan. Project
Officer: Jinee Burdg. Alexandria, VA: July 2019.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

focusing limited State agency resources
more effectively.
FNS is committed to listening to our
stakeholders and maximizing Program
efficiency, local control, and customer
service in the Child Nutrition Programs.
To that end, this rule proposes
additional flexibilities that support
State, Tribal, and local Program
operators. The proposed flexibilities aim
to: (1) Facilitate the service of
wholesome meals within the
operational constraints of schools across
the Nation, (2) support foodservice
efficiency, and (3) ease monitoring
burden for SFAs and States. USDA
strives to decrease administrative
burden so Program operators have more
time to focus on the core mission of
Child Nutrition Programs: feeding
children.
III. Discussion of Proposed Changes &
Optional Flexibilities
This preamble groups the proposed
changes and flexibilities into three
broad categories: (1) Proposals to
Simplify Monitoring, (2) Proposals to
Simplify Meal Service, and (3)
Proposals to Simplify Competitive
Foods (i.e., foods sold a` la carte). USDA
is also seeking public input on multiple
items, for which no changes are
proposed in this rule.
Proposals To Simplify Monitoring
Establish 5-Year Administrative Review
Cycle & Targeted, Follow-Up Reviews of
High-Risk SFAs
Current Requirements
Section 22 of the NSLA (42 U.S.C.
1769c(b)(1)(C)(i)), requires that State
agencies ‘‘conduct audits and reviews
during a 3-year cycle or other period
prescribed by the Secretary.’’ Current
regulatory provisions at 7 CFR 210.18(c)
require State agencies to conduct an
administrative review of each SFA
participating in the NSLP and SBP at
least once during a 3-year review cycle.
This comprehensive administrative
review, outlined at 7 CFR 210.18,
monitors compliance with eligibility,
meal counting and claiming, and meal
pattern requirements.
The transition to the new, more
comprehensive administrative review
process and shorter 3-year review cycle
occurred at the same time as States and
SFAs were implementing several other
Program changes required by HHFKA,
including implementing new meal
pattern requirements, paid lunch equity,
local wellness policies, direct
certification improvements, and a new
performance-based reimbursement.
Concurrently, State agencies were
devoting significant resources to

PO 00000

Frm 00004

Fmt 4701

Sfmt 4702

additional oversight responsibilities,
such as the review of procurement
practices and procedures, to better
ensure compliance with Federal
regulations.
Since the transition to a 3-year review
cycle and the introduction of the unified
administrative review in SY 2013–2014,
some State agencies and SFAs have
struggled to complete reviews and
corresponding oversight activities.
USDA received feedback about
difficulties associated with
administrative reviews—both from State
agencies conducting reviews and from
SFAs preparing for, and responding to,
reviews. States and SFAs have noted
that, in some instances, the shorter
review cycle reduced time available for
technical assistance and training, and
unduly emphasized compliance over
Program improvement.
Proposed Changes to the Administrative
Review Cycle
Pursuant to the authority of section 22
of the NSLA, this rule proposes changes
to the administrative review cycle to
ease administrative burden for State
agencies and SFAs, while continuing to
promote Program integrity. This rule
proposes to allow State agencies the
option to transition from the current 3year review cycle back to a 5-year
review cycle. State agencies opting for a
5-year review cycle would conduct a
comprehensive administrative review of
each SFA participating in NSLP and
SBP at least once during a 5-year cycle
and identify high-risk SFAs for
additional oversight. High-risk SFAs
would receive a targeted follow-up
review within two years of being
designated high-risk. State agencies
would continue to have the option to
review SFAs more frequently.
Upon implementation, State agencies
would be required to review SFAs with
significant noncompliance in the areas
of meal pattern/nutrition requirements,
certification determinations, and claims
earlier in the review cycle. In the initial
5-year review cycle, State agencies
would be required to review SFAs
known to be noncompliant in the first
three years, and rely heavily on the most
recent administrative review to identify
these SFAs. This would ensure that
SFAs known to be noncompliant are
appropriately monitored earlier in the
review cycle and minimize the time
between reviews for these SFAs.
Targeted follow-up reviews would be
less comprehensive than a full
administrative review and at this time
USDA anticipates the scope will include
areas identified as high-risk for the SFA,
along with other critical Program areas
that include Performance Standard 1

E:\FR\FM\23JAP3.SGM

23JAP3

jbell on DSKJLSW7X2PROD with PROPOSALS3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
and 2 violations and Resource
Management findings. Performance
Standard 1 includes eligibility,
certification, and meal counting/
claiming requirements. Performance
Standard 2 includes meal pattern and
nutrition requirements. Resource
Management areas include the areas
outlined in 7 CFR 210.14. Prior to July
1, 2012, USDA required follow-up
reviews of SFAs found to have critical
area violations in excess of certain
review thresholds. Since July 1, 2012,
follow-up reviews have been conducted
at State agency discretion, per 7 CFR
210.18(c)(2). This rule proposes to
reinstate required, targeted follow-up
reviews; however, based on public
input, requirements for follow-up
reviews implemented in a final rule may
be different than follow-up review
requirements prior to July 1, 2012.
USDA intends to provide both the
high-risk criteria and the scope of the
targeted follow-up review in regulation.
USDA proposes to use findings from
previous administrative reviews and
findings regarding any known
noncompliance with Federal
procurement regulations to determine
high-risk. USDA seeks comment on
which particular administrative review
findings should be included in the highrisk criteria. USDA is also considering
using additional risk factors (e.g., staff
experience and/or staff turnover) and
SFA characteristics (e.g., enrollment
size, funding level, type of meal
counting and/or claiming system, and/
or point-of-service system) to determine
high-risk. USDA seeks public comment
on additional characteristics to be
included in defining high-risk and the
scope of targeted follow-up reviews.
USDA would allow State agencies to
add other risk criteria as they see fit,
and to designate an SFA as high-risk
based on other information on a case-bycase basis.
In developing this proposal, USDA
considered two other options, as
described below. USDA welcomes
public comments on these options, even
though a different approach is proposed
in this rulemaking.
(1) USDA considered establishing two
review cycles: A 5-year cycle for lowrisk SFAs and a 3-year cycle for highrisk SFAs, as some stakeholders
suggested, but concluded that multiple
cycles could create additional
administrative burden and confusion.
USDA believes that transitioning to a 5year cycle, with the requirement to
conduct targeted, follow-up reviews of
high-risk SFAs more often, would
achieve the same outcome and provide
States with flexibility on the timing of
such reviews.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

(2) USDA also considered a different
approach that would return all SFAs to
a 5-year review cycle. Under that
approach, State agencies would be
required to randomly select a portion of
SFAs, using a statistically valid sample,
which would receive comprehensive
reviews using all administrative review
modules. In addition, for each cycle
USDA would identify the Program areas
of highest risk and impact to the
Programs, and only those modules
would be reviewed for the remaining
SFAs. USDA explored this option to
allow State agencies to review all SFAs
thoroughly in the areas of highest risk
or impact to the Programs, while also
alleviating burden by not requiring all
review modules for some SFAs. USDA
concluded that this approach could
present significant risks to Program
integrity since not all areas would be
reviewed. In addition, USDA would
likely need to require additional
administrative reviews of SFAs deemed
high-risk for administrative error to
fulfill statutory requirements, which
would negate the burden reduction.
Therefore, the proposal to return to a
5-year administrative review cycle, with
targeted, follow-up reviews of high-risk
SFAs, responds to feedback from some
stakeholders who report that the 3-year
review cycle is too burdensome for both
State agencies and SFAs, and limits a
State’s ability to conduct other valuable
oversight activities, such as providing
technical assistance. Giving State
agencies discretion to add other risk
criteria to the risk assessment would
allow States to tailor monitoring
activities to their unique needs, and
move away from a ‘‘one size fits all’’
approach. Allowing State agencies the
option to return to a 5-year
administrative review cycle aims to
alleviate burden on State agencies by
providing more time to complete
required reviews and devote more
resources to technical assistance.
Focusing additional resources on highrisk SFAs would allow State agencies to
target limited resources to those SFAs
most in need of monitoring and
technical assistance.
Based on public input and at the
Secretary’s discretion, USDA may
implement and/or modify the proposed
operational flexibility in a final rule.
What would stay the same?
State agency reviewers would
continue to follow procedures outlined
in the FNS Administrative Review
Manual, as required, to monitor general
and critical areas of review.
Specific Public Input Requested
USDA is seeking public comment on:

PO 00000

Frm 00005

Fmt 4701

Sfmt 4702

4097

• The 5-year review cycle models (the
model proposed, and the two models
considered, but not proposed);
• How to determine an SFA’s risk of
noncompliance, including the risk
factors to consider;
• The scope of the targeted follow-up
review; and
• How risk factors should apply if a
State agency opts to review SFAs more
frequently than on a 5-year cycle.
The proposed changes to the
administrative review cycle are in 7 CFR
210.18(c) of the regulatory text.
Align Administrative Review and Food
Service Management Company Review
Cycles
Current Requirements
Regulations at 7 CFR 210.19(a)(5)
require that ‘‘each State agency shall
perform a review of each SFA
contracting with a food service
management company, at least once
during each 3-year period.’’ The 3-year
review cycle for food service
management companies aligns with the
current 3-year administrative review
cycle. This allows States to coordinate
and streamline review and oversight
activities.
Allowing a 5-year review cycle for
administrative reviews while
maintaining a 3-year review cycle for
food service management company
reviews could present challenges to
State agencies’ oversight activities.
Proposed Changes to the Food Service
Management Companies Review Cycle
This rule proposes to change the food
service management company review
cycle to at least once during a 5-year
period, so State agencies can align
oversight activities. State agencies may
opt to review SFAs with food service
management companies more
frequently. This proposal would allow
State agencies to align and streamline
administrative reviews and food service
management company reviews. This
proposal is consistent with USDA’s
focus on Program efficiency.
What would stay the same?
This proposed rule only changes the
minimum time-frame of the review
cycle and does not make any other
changes to the oversight of food service
management companies, including the
requirement for State agencies to review
each contract between an SFA and food
service management company annually.
The proposed changes to the food
service management review cycle are in
7 CFR 210.19(a)(5) of the regulatory text.

E:\FR\FM\23JAP3.SGM

23JAP3

jbell on DSKJLSW7X2PROD with PROPOSALS3

4098

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

Address Significant Performance
Standard 1 Noncompliance Early in
Review Cycle

Addressing these issues early could also
limit the fiscal implications that SFAs
face for errors.

Current Requirements
If the State agency determines that an
SFA demonstrates significant
noncompliance with the meal pattern
and nutrition requirements set forth in
7 CFR 210.10 and 220.8, the State
agency must select the SFA for an
administrative review earlier in the
review cycle (7 CFR 210.18(e)(5)). If
significant noncompliance is found in
other areas, including Performance
Standard 1, the State agency is not
required to select the SFA for an
administrative review earlier in the
review cycle.
Performance Standard 1 includes
important eligibility, certification, and
meal counting/claiming requirements.
These include the requirements that all
free, reduced price, and paid meals
claimed for reimbursement are served
only to children eligible for free,
reduced price, and paid meals,
respectively; and that the meals are
counted, recorded, consolidated, and
reported through a system which
consistently yields correct claims (7
CFR 210.18(g)). Compliance with
Performance Standard 1 areas is critical
to ensure Program integrity. It is
inconsistent to require State agencies to
review SFAs early in the review cycle
only when there is significant
noncompliance with the Performance
Standard 2 meal pattern and nutrition
requirements, and not for Performance
Standard 1 requirements.

What would stay the same?

Proposed Changes to the Early Review
of School Food Authorities
This rule proposes requiring that State
agencies also select SFAs with
significant noncompliance in
Performance Standard 1 areas for an
administrative review earlier in the
review cycle. While ‘‘significant
noncompliance’’ has not been formally
defined, USDA interprets it to mean
findings from previous reviews that
warrant fiscal action and any knowledge
that a State agency may have regarding
an SFA’s noncompliance. These areas,
including certification determinations,
are set forth in 7 CFR 210.8 and 245.6.
It is important for State agencies to
prioritize reviewing SFAs with
significant noncompliance not only in
meal pattern and nutrition
requirements, but also in certification
determinations and claims. Reviewing
these SFAs early allows State agencies
to provide prompt technical assistance
to bring SFAs into compliance with
Program requirements, rather than
allowing noncompliance to continue.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

A State agency that determines that an
SFA has significant noncompliance
with meal pattern and nutritional
requirements set forth in 7 CFR 210.10
and 220.8 must still be reviewed earlier
in the review cycle. SFAs that are not
determined to have significant
noncompliance would be reviewed in
line with State agency procedures and
regulations outlined in 7 CFR 210.18.
The proposed changes to require
SFAs with significant noncompliance in
Performance Standard 1 areas to be
reviewed earlier in the administrative
review cycle are in 7 CFR 210.18(e)(5)
of the regulatory text.
Specific Public Input Requested
‘‘Significant noncompliance’’ is a
term used in Federal regulations that
USDA has not defined previously.
USDA proposes to define this term and
seeks public input on the definition of
‘‘significant noncompliance.’’
Allow Expanded Use of Third-Party
Audits
Current Requirements
To prevent duplication of effort,
regulations allow State agencies to use
recent and applicable findings from
Federal- or State-required audits in lieu
of reviewing the same information in an
administrative review (7 CFR
210.18(f)(3)). When Federal or State
audit results are used for the
administrative review, the State agency
must document the source and date of
the audit. Some State agencies are using
this option to substitute for parts of the
administrative review that require or
would benefit from specialized financial
or accounting expertise. USDA
encourages States to consider this
practice to prevent duplicative efforts
and minimize burden on review staff.
Proposed Change
Maintaining State agency staff with
the specialized training and experience
needed can be challenging in some
States. This proposed rule would allow
State agencies to use recent and
applicable findings from supplementary
audit activities, requirements added to
Federal or State audits by local
operators, or other third-party audits
initiated by SFAs or other local entities.
In all cases, the audit activity would
have to comply with the same standards
and principals that govern the Federal
single audit. These are in addition to the
audit information that is already

PO 00000

Frm 00006

Fmt 4701

Sfmt 4702

allowed to substitute for parts of the
administrative review.
This change would provide an
additional opportunity for State
agencies and SFAs to substitute thirdparty audits for comparable sections of
the administrative review. The intent is
to offer options to reduce burden and/
or the cost of maintaining qualified
State agency staff to conduct specialized
sections of the administrative review.
This proposal stems from USDA’s focus
on increasing operational efficiency and
is in line with the current provision on
audit information.
What would stay the same?
The flexibility that State and local
Program operators currently have to use
results from Federal- or State-required
audits in lieu of completing parts of the
administrative review would continue
to be available. State agency reviewers
would also continue to follow
administrative review procedures to
monitor all other general and critical
areas of review.
The proposed changes to expand the
use of third-party audits are in 7 CFR
210.18(f)(3) of the regulatory text.
Allow Completion of Review
Requirements Outside of the
Administrative Review
Current Requirements
In addition to Federal- or Staterequired audits, State agencies conduct
additional monitoring and oversight
activities outside of the formal
administrative review process. Existing
administrative review requirements do
not allow for State agencies that conduct
these additional oversight or monitoring
processes to use that information in the
formal review process.
Some State agencies have developed
monitoring practices that review
information identical or similar to
certain aspects of the administrative
review in order to proactively review all
SFAs in areas that are critical to
successful Program operations and may
identify issues of noncompliance
annually, rather than waiting for an
administrative review. States currently
are not able to use some of this
information from activities outside of
the formal administrative review,
requiring them to duplicate work for no
additional gain.
Proposed Change
This proposed rule would allow State
agencies to satisfy sections of the
administrative review through
equivalent State monitoring or oversight
activities outside of the formal
administrative review process. For
example, State agencies may already

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
annually review SFAs’ financial
documentation, such as reviewing a
‘‘Statement of Revenues and Expenses’’
or similar documentation, in order to
monitor impacted Program areas, such
as allowable costs, throughout the year.
These documents may then also be
reviewed on the administrative review,
for example, as part of the Resource
Management Module. This proposal
would allow State agencies to omit
specific redundant areas of the review if
States conduct sufficient oversight
elsewhere. USDA would continue to
monitor States’ oversight practices
through the Management Evaluation
process to ensure that State agencies are
fulfilling their oversight responsibilities.
This proposed change acknowledges
that State agencies may be conducting
activity identical to certain sections of
the administrative review in monitoring
visits or other oversight activities
outside of the formal administrative
review process. Eliminating
redundancies would allow State
agencies to redirect limited resources to
technical assistance or training.
What would stay the same?
State agencies that do not conduct
additional oversight activities as
described in this provision would
continue to complete all sections of the
formal administrative review process.
Specific Public Input Requested
The Department seeks public
comment on this proposal and any
specific oversight activities that States
or SFAs are already conducting, or are
considering, outside of and redundant
to the formal administrative review, to
inform the final rule.
The proposed changes to allow
completion of review requirements
outside of the administrative review are
in 7 CFR 210.18(f), (g), and (h) of the
regulatory text.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Provide Incentives To Invest in
Integrity-Focused Process Improvements
Current Requirements
The administrative review is an
evaluation of SFA compliance with
procedures meant to ensure proper
administration of the school meal
programs, including the provision of
nutritious meals. In many cases, the
procedures reviewed provide direct and
definitive checks on Program
performance. These include, for
example, State agency validation of SFA
meal counts to ensure that USDA
reimbursements match the number of
meals served.
In some cases, however, the
administrative review monitors SFA
compliance with procedures that are

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

4099

indirect or incomplete measures of
compliance with fundamental Program
requirements. An example of this is SFA
management of the application approval
and verification processes. The
administrative review ensures that SFAs
process applications and verification
documents correctly, but it cannot
confirm the underlying accuracy or
completeness of applicant reporting.
The administrative review process is not
designed to validate that all applicants
are income eligible for Program benefits.
In other cases, the State agency
reviewer is in a position to identify
errors and provide immediate technical
assistance. But neither the review, nor
the technical assistance, may adequately
address an underlying challenge that
can continue to generate errors after the
review ends. An example of this is the
misidentification of meals as
reimbursable or non-reimbursable at the
point of sale. While the underlying
challenge may be inadequate training, in
which case technical assistance and
corrective action may be an ideal
remedy, the challenge may instead be an
antiquated point of sale process that
demands too much from the cashier.
Reducing improper Program
payments in the school meal programs
is an Agency priority. USDA, along with
its State agency and SFA partners, have
invested in process reforms, technology
improvements, and training over the
past several years to address improper
payments. Some of these efforts seek to
strengthen the administrative review
process and the training of State agency
reviewers, which is critical for effective
Program management. Others have led
to the development of process reforms
such as real-time direct certification that
can improve outcomes and reduce error
in ways that monitoring cannot. To
address the improper payment
challenges facing the school meal
programs, where much of the
underlying Program error cannot be
identified or addressed through
monitoring reviews alone, additional
effort must be directed to this kind of
process reform.

overall error without increasing overall
cost.
USDA will develop a series of
optional process reforms that respond to
the latest findings from USDA research,
independent audits, and Agency
analysis of administrative data. USDA
will test potential reforms, in
cooperation with State and local
program administrators, to assess their
feasibility and effectiveness. States or
SFAs may then adopt these, at their
option, in exchange for elimination,
modification, or reduction of existing
administrative review requirements.
USDA anticipates that this package of
optional reforms will grow over time in
response to new research and changes
in the nature of the integrity challenges
facing the Programs.
These process reforms seek to reduce
Program error, rather than simply
maintain the current level of error with
a less comprehensive review. For that
reason, the ideal reforms are unlikely to
be direct substitutes for the review
requirements that they replace. As an
example, State agencies may be
approved to bypass their review of
applications, or they may be able to
select a smaller application sample, if
the SFA adopts a broad package of
certification and verification reforms
that target both administrative
processing error and underlying
applicant error. Subject to an
assessment of feasibility and
effectiveness, this package could
include SFA adoption of an online
application system that meets USDAspecified integrity standards, high
uptake of that online application by
households, SFA adoption of specified
direct certification best practices, and
for-cause verification of applications
that exhibit specified error-prone
characteristics.
This proposed change seeks to
encourage State and local investment in
integrity-promoting initiatives in
exchange for streamlined oversight
activities. It is consistent with USDA’s
focus on more local control and
operational efficiency.

Proposed Change

Specific Public Input Requested

This rule proposes a framework for
waiving or bypassing certain review
requirements for State agencies or SFAs
as an incentive to invest in one or more
USDA-designated systems or process
improvements that can reduce or
eliminate Program errors. The
administrative review is a resourceintensive process that generates real
costs for State agencies and SFAs. The
goal is to redirect some of those
resources into process reforms to reduce

USDA seeks public comments on
what specific process reforms might be
considered for this incentive-based
provision, and how the overall integrity
of the school meal programs may be
enhanced if States and SFAs were to
implement such reforms.
The proposed changes to provide
incentives to invest in integrity-focused
process improvements are in paragraphs
7 CFR 210.18(f), (g), and (h) of the
regulatory text.

PO 00000

Frm 00007

Fmt 4701

Sfmt 4702

E:\FR\FM\23JAP3.SGM

23JAP3

4100

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

Omit the On-Site Breakfast Review in
Extenuating Circumstances

jbell on DSKJLSW7X2PROD with PROPOSALS3

Current Requirements
Section 22(a) of the NSLA (42 U.S.C.
1769c(a)), directs USDA to create a
unified accountability system that
requires review of the SBP to ensure
conformity with Federal requirements.
Reviewing the SBP on-site during an
administrative review allows State
agencies to provide technical assistance
and training when an SFA faces
challenges administering the Program.
The review also may result in corrective
action, which can help improve
operations by amending Program errors.
Program regulations at 7 CFR
210.18(g)(1)(ii) and (g)(2)(i)(B) require
State agencies to review elements of
Program requirements on-site. To limit
the burden on State agencies, the
current administrative review requires
an on-site review of only half of the sites
selected for review that operate the SBP
as outlined in 7 CFR 210.18(e)(2)(iii)(B).
Prior to 2012, SBP on-site reviews were
not required. While most State agencies
are successfully conducting on-site
breakfast reviews, the Department
recognizes that State agencies may face
unique challenges in conducting SBP
on-site reviews at some SFAs, especially
those in remote locations with limited
lodging options. The early morning start
time of SBP on-site reviews adds to this
difficulty, particularly when
transportation is a barrier. USDA has
already approved waivers of the on-site
breakfast review requirement in cases
where State agencies have faced
extenuating circumstances, such as no
available lodging within hours of a
school or major travel challenges (e.g., a
helicopter is the only transportation
available and the flight schedule does
not allow reviewers to arrive in time for
breakfast).
Proposed Changes to SBP On-Site
Reviews
USDA proposes to allow State
agencies facing extenuating travel
circumstances the ability to omit the onsite SBP review and assess an SFA’s
breakfast operations using other existing
measures. In addition, it may be
possible for State agency staff to review
some aspects of SBP when on-site for
the NSLP review. USDA proposes that
extenuating travel circumstances would
be absence of lodging facilities within
50 miles of a reviewed school. State
agencies in such circumstances would
be required to notify FNS when omitting
the on-site review of SBP due to the
absence of lodging facilities.
Including the SBP in the
administrative review is required by

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

Section 22(a)(1)(B) of the NSLA to
develop a unified accountability system.
This proposed change addresses State
agency feedback regarding challenges
conducting an on-site SBP review.
When necessary and warranted, this
proposal would allow States to use
methods other than the on-site breakfast
review to ensure that SBP requirements
are met. This proposal retains the State
agency requirement to conduct an onsite review for lunch.
What would stay the same?
State agencies without extenuating
circumstances would still be required to
conduct on-site SBP reviews, as
specified in Program regulations.
Specific Public Input Requested
USDA specifically seeks comments
on:
• What extenuating travel or safety
circumstances, in addition to absence of
lodging within 50 miles of a reviewed
school, could be included in the
regulation;
• What parts of the on-site SBP
review cannot be satisfied during an onsite review of the NSLP;
• Any potential risk to Program
integrity posed by omitting an on-site
SBP review;
• What challenges State agencies and
SFAs encounter related to the on-site
breakfast review, and whether any of
those challenges would be prevented by
conducting the SBP review during the
on-site review of the NSLP; and
• What off-site processes and tools
are, or could be, available to States to
ensure SFAs are successfully operating
the SBP.
Comments will inform USDA
regulations on when and how to apply
this flexibility and how to mitigate any
risks to Program integrity.
The proposed changes to allow State
agencies to omit the requirement to
conduct an on-site SBP review in
extenuating circumstances are in 7 CFR
210.18(g)(1)(ii) and (g)(2)(i)(B) of the
regulatory text.
Add Flexibility to Completion of the
Resource Management Module
Current Requirements
Regulations require State agencies
conducting an administrative review to
do an off-site assessment of an SFA’s
nonprofit school food service account to
evaluate the risk of noncompliance with
resource management requirements (7
CFR 210.18(h)(1)). This requirement
helps State agencies identify which and
how many SFAs need a comprehensive
review, and helps State agencies acquire
information that is vital to assess the
SFA’s financial management before a

PO 00000

Frm 00008

Fmt 4701

Sfmt 4702

review begins. If this information is not
received before the completion of the
Resource Management Module review
during an administrative review, a
comprehensive review is required.
USDA received feedback from State
agencies after implementation of the
unified administrative review process.
States indicated that assessing risk for
noncompliance in resource management
areas off-site can be challenging,
depending on when and how the State
reviews these areas. USDA allows States
agencies to conduct comprehensive
resource management reviews off-site,
and separate from the on-site
administrative review, so there is even
more discretion available to States in
adopting processes. Requiring an off-site
assessment prior to further review may
hinder the State’s review process.
Proposed Changes to the Administrative
Review Resource Management Process
Instead of requiring that any part of
the Resource Management module
review take place off-site, this proposed
rule would allow State agencies to
conduct the assessment of an SFA’s
nonprofit school food service account at
any point in the review process that
makes the most operational sense to the
State agency. Similar to the on-site
portion of the review, USDA intends
this assessment to take place in the
school year that the review began, but
will no longer require this assessment to
take place off-site. Completion of the
Resource Management Module may
occur before, during, or after the on-site
portion of the administrative review.
Since the inclusion of resource
management areas in the administrative
review, State agencies have developed
their own processes and procedures to
review SFAs’ financial management
practices in preparation for an
administrative review. This proposed
change would provide State agencies
the discretion and flexibility to set up a
review process and staff work units in
the manner that they see fit.
What would stay the same?
State agencies will still be required to
conduct an assessment of the SFA’s
nonprofit school food service account to
evaluate the risk of noncompliance with
resource management requirements,
following procedures specified in
regulations. If risk indicators show that
an SFA is at high-risk for
noncompliance with resource
management requirements, the State
agency must conduct a comprehensive
review.
The proposed changes to allow State
agencies to complete the Resource
Management Module of the

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
administrative review at any point in
the review process are in 7 CFR
210.18(h)(1) of the regulatory text.
Set Consistent Fiscal Action for
Repeated Meal Pattern Violations
Current Requirements

jbell on DSKJLSW7X2PROD with PROPOSALS3

Fiscal action is the recovery of
Federal funds provided for reimbursable
meals when there is an overpayment
due to noncompliance or ineligible
meals served. Fiscal action plays a key
role in maintaining the integrity of the
NSLP and SBP. Reimbursement claims
made by SFAs must accurately reflect
the number of reimbursable meals
served to eligible children, by type, for
each day meals are served. When
conducting an administrative review,
State agencies must identify the SFA’s
correct Federal reimbursement and take
fiscal action when an SFA claims or
receives more Federal funds than
warranted. Pursuant to 42 U.S.C.
1769c(b)(4), the Secretary may require
the State agency to retain funds that
would otherwise be paid to the local
educational agency, under procedures
prescribed by the Secretary, if the local
educational agency fails to meet
administrative performance criteria
established by the Secretary. Currently,
as specified in 7 CFR 210.18(l)(2), State
agencies must take fiscal action for
missing food components, and for
repeated violations of milk type and
vegetable subgroup requirements. State
agencies may take fiscal action for
repeated violations concerning food
quantities, whole grain-rich foods, and
dietary specifications.
State agencies and Program operators
have expressed to USDA that
inconsistency in fiscal action
procedures for findings related to meal
pattern noncompliance can be confusing
during the fiscal action process. USDA
initially directed the inconsistent
treatment of repeat meal pattern
violations during a time when State
agencies were adapting to the meal
pattern changes. Now that State
agencies better understand meal pattern
violations, USDA believes that State
agencies are better equipped to make
determinations on whether only
technical assistance and training is
needed, or if fiscal action is warranted.
Proposed Changes to Administrative
Review Fiscal Action for Meal Pattern
Noncompliance
This proposed rule would no longer
require fiscal action for repeated
violations of milk type and vegetable
subgroup requirements. Instead, State
agencies would have discretion to take
fiscal action for repeated violations of

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

4101

milk type and vegetable subgroup
requirements. This change would align
with the existing State agency discretion
to take fiscal action for repeated
violations for food quantities, whole
grain-rich foods, and dietary
specifications.
Students would still receive
vegetables and milk when there are
administrative review findings related
to milk type and vegetable subgroup
requirements, just not the correct type
specified in meal pattern requirements.
Many SFAs are making a good faith
effort to offer children a healthy meal,
but may make a mistake or need
additional assistance to fully
understand the meal pattern
requirements. In these instances, rather
than requiring States to fiscally penalize
SFAs, this rule would allow State
agencies to determine the appropriate
response: Whether only technical
assistance and training is needed, or if
fiscal action is the best course of action.
USDA believes State agencies are best
positioned to determine the appropriate
response. This proposed change would
make fiscal action consistent across all
repeated meal pattern violations.

Proposed Changes To Include Buy
American in the Administrative Review
Requirements
This rule proposes to add the existing
Buy American monitoring requirement
to the general areas of review listed at
7 CFR 210.18(h)(2), under the
administrative review regulations. This
proposed change is consistent with
guidance in the FNS Administrative
Review Manual and clarifies existing
monitoring requirements for State
agencies.

What would stay the same?
State agencies would still be required
to take fiscal action for missing food
components. The only fiscal action
required by USDA for meal pattern
noncompliance would be disallowing
meals when a meal component is
missing. Fiscal action for any other meal
pattern violations would not be required
by USDA.
The proposed changes to make fiscal
action consistent across all repeated
meal pattern violations are in 7 CFR
210.18(l)(2) of the regulatory text.

Current Requirements
Vegetables are good sources of
nutrients associated with reduced risk
for chronic disease.8 The Dietary
Guidelines for Americans, 2015–2020
(hereafter referred to as the Dietary
Guidelines) recommend eating a variety
of vegetables and categorize vegetables
into five subgroups based on similar
nutrient content: (1) Dark green, (2) red/
orange, (3) beans/peas (hereafter
referred to as legumes, as specified in 7
CFR 210.10(c)(2)(iii)), (4) starchy, and
(5) other.9 Bioactive compounds in
vegetables vary across subgroups, and
recommended amounts in the Dietary
Guidelines aim to optimize health
benefits.10 A healthy eating pattern
includes a variety of vegetables from all
five subgroups.
In the NSLP, current regulatory
provisions at 7 CFR 210.10 (c)(2)(iii)
require Program operators to offer all
five vegetable subgroups to children
over a school week; minimum amounts

Add Buy American to the General Areas
of the Administrative Review
Current Requirements
As part of the administrative review,
State agencies conduct an on-site review
of food components to determine
compliance with the Buy American
provision in 7 CFR 210.21(d). The onsite review of food components is
specified in the FNS Administrative
Review Manual, but it is not included
in the regulations that list the general
areas of review to be conducted.
USDA included the on-site
monitoring for compliance with Buy
American requirements as part of the
administrative review, which is
conducted on-site at an SFA. A State
agency’s responsibility to monitor Buy
American also includes reviewing
procurement documentation, such as
contracts, that may be completed
separate from the administrative review.

PO 00000

Frm 00009

Fmt 4701

Sfmt 4702

What would stay the same?
State agencies would still be required
to review SFA compliance with Buy
American requirements through the
administrative review and the State’s
procurement oversight process, in line
with USDA guidance.
The proposed changes to add the
existing Buy American monitoring
requirement to the general areas of
review are in 7 CFR 210.18(h)(2) of the
regulatory text.
Proposals To Simplify Meal Service
Facilitate the Service of Vegetable
Subgroups in the NSLP

8 Health-promoting components of fruits and
vegetables in the diet. Liu RH. Adv Nutr. 2013 May
1; 4(3):384S–92S.
9 Dietary Guidelines for Americans, 2015–2020.
Key Recommendations: Components of Healthy
Eating Patterns https://health.gov/
dietaryguidelines/2015/guidelines/chapter-1/keyrecommendations/.
10 U.S. Department of Health and Human Services
and U.S. Department of Agriculture. Dietary
Guidelines for Americans, 2015–2020, Appendix 3.
8th ed. U.S. Government Printing Office,
Washington, DC. Available at: http://health.gov/
dietaryguidelines/.

E:\FR\FM\23JAP3.SGM

23JAP3

4102

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

jbell on DSKJLSW7X2PROD with PROPOSALS3

vary by age/grade group. These
standards specify what must be offered
to students, not what students must
select for a reimbursable meal. Students
must be offered—and, therefore, have an
opportunity to select—all five types of
vegetables during a school week.11
Since implementation of the vegetable
subgroups requirement in 2012, some
Program operators have experienced
challenges, especially with the
requirement to offer 1⁄2 cup of legumes
per week. About 80 percent of lunch
menus nationwide offer 1⁄2 cup legumes
per week; this is significantly lower
than other vegetable subgroups, which
are offered on more than 90 percent of
lunch menus weekly.12 Program
operators say the NSLP vegetable
subgroup requirements are complex and
confusing, especially the requirement to
offer varying amounts of vegetables from
different subgroups. USDA is sensitive
to these ongoing challenges faced by
Program operators. USDA aims to
ensure that vegetable requirements are
easy to understand and implement in
the NSLP while still aligning with key
subgroups recommended by the Dietary
Guidelines.
Some Program operators also report
challenges with food waste and report
that children are throwing required
vegetables in the trash. USDA’s School
Nutrition and Meal Cost Study found
that approximately 31 percent of
vegetables served in schools are wasted,
which mirrors food waste in America at
large: Approximately 31 percent of retail
and consumer food is wasted.13 14 This
amount of waste has far-reaching
impacts:
11 The NSLP meal patterns require a variety of
vegetables over a typical, 5-day school week. FNS
guidance also specifies vegetable subgroup
requirements for shorter (e.g., 3- or 4-day) and
longer (e.g., 6- or 7-day) school weeks for
institutions that operate on different schedules.
12 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Volume 2:
Nutritional Characteristics of School Meals by
Elizabeth Gearan, Mary Kay Fox, Katherine Niland,
Dallas Dotter, Liana Washburn, Patricia Connor,
Lauren Olsho, and Tara Wommak. Project Officer:
John Endahl. Alexandria, VA: April 2018.
13 Buzby, Jean C., Hodan F. Wells, and Jeffrey
Hyman. The Estimated Amount, Value, and
Calories of Postharvest Food Losses at the Retail
and Consumer Levels in the United States, EIB–121,
U.S. Department of Agriculture, Economic Research
Service, February 2014. Available at: https://
www.ers.usda.gov/webdocs/publications/43833/
43680_eib121.pdf.
14 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 1: School Meal Program Operations and
School Nutrition Environments by Sarah Forrestal,
Charlotte Cabili, Dallas Dotter, Christopher W.
Logan, Patricia Connor, Maria Boyle, Ayseha Enver,
and Hiren Nissar. Project Officer: John Endahl.
Alexandria, VA: April 2019.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

• Wholesome food that could feed
children in need is sent to landfills.
• Land, water, labor, energy, and
other inputs are wasted in producing,
processing, transporting, preparing,
storing, and disposing of discarded
food.
USDA is committed to reducing food
waste, improving Program efficiency,
and ensuring responsible stewardship of
taxpayer dollars.
Proposed Flexibilities for Required
Vegetable Subgroups
This rule proposes the following
practical flexibilities to facilitate the
service of the required vegetable
subgroups at lunch. The proposed
flexibilities would maintain the existing
daily and weekly total vegetable
quantities in the NSLP to help schools
continue to offer wholesome, balanced
meals that support children’s growth,
development, and academic
achievement.
• Allow all five subgroups in the
same minimum weekly amount for all
age/grade groups.
This rule would maintain the five
vegetable subgroups recommended by
the Dietary Guidelines to ensure
children are offered a variety of
vegetables in school lunches. The
proposal would also facilitate the
service of vegetables and minimize food
waste by allowing schools to offer the
same weekly minimum amount from
each subgroup: 1⁄2 cup weekly from each
subgroup for all grades. Currently, menu
planners are required to offer 1⁄2 cup of
most vegetable subgroups over a school
week, but must offer larger quantities of
red/orange vegetables (for all age/grade
groups) and ‘‘other’’ vegetables (for
grades 9–12). USDA is committed to
implementing measures that reduce
food waste in schools and promote
efficient school food service
operations.15 Reducing operational
complexity by requiring the same
quantities of all vegetable subgroups
would simplify menu planning and
meal service. The proposed change
would continue to make the key
vegetable subgroups recommended by
the Dietary Guidelines available to
schoolchildren while reducing
operational complexity and the
potential for food waste in school food
service operations.
15 Buzby, Jean C., Hodan F. Wells, and Jeffrey
Hyman. The Estimated Amount, Value, and
Calories of Postharvest Food Losses at the Retail
and Consumer Levels in the United States, EIB–121,
U.S. Department of Agriculture, Economic Research
Service, February 2014. Available at: https://
www.ers.usda.gov/webdocs/publications/43833/
43680_eib121.pdf.

PO 00000

Frm 00010

Fmt 4701

Sfmt 4702

• Allow legumes offered as a meat
alternate to count toward weekly legume
vegetable requirement.
This rule would also allow more
flexible crediting for legumes, a
consistently under-served and underconsumed vegetable subgroup. Legumes
are unique vegetables because of their
protein content. Under current
regulations, local menu planners can
offer legumes and count them as either
a vegetable or as a meat alternate.
Despite this flexibility, some schools are
struggling to meet the weekly legumes
subgroup requirement. As noted above,
about 80 percent of menus met the
weekly requirement to offer 1⁄2 cup of
legumes. This suggests that menu
planners who are struggling with the
weekly vegetable requirements are
struggling most with the legumes
requirement.
This proposal would allow menu
planners who offer at least 1⁄2 cup of
legumes as a meat alternate to also
count the same 1⁄2 cup legumes toward
the weekly legumes requirement. Even
though the legumes would be included
on the menu as a meat alternate,
children would still be exposed to
legumes and the nutrients they provide.
Therefore, this flexibility would not
deprive children of access to legumes, it
would simply offer flexibility in how
legumes are credited toward meal
pattern requirements. Under this
proposal, offering 1⁄2 cup of legumes as
a meat alternate would not count toward
the daily or weekly vegetable minimums
because ‘‘double-counting’’ components
could reduce the overall food quantity
and calories in school meals. Therefore,
menu planners would still have to offer
vegetables in addition to the legumes
(offered as a meat alternate) to meet the
established daily and weekly minimum
required quantities of vegetables. This
flexibility seeks to provide additional
options for local Program operators to
offer legumes to children.
These proposed flexibilities are
expected to make it easier for local
Program operators to offer legumes,
consistent with the Dietary Guidelines’
emphasis on legumes. The Dietary
Guidelines recommend (1) increasing
legume consumption (legumes are
underconsumed for all school-aged
children) and (2) increasing the
consumption of lean protein foods,
including legumes.16 The proposed
changes aim to support operational
efficiency and facilitate compliance
with NSLP nutrition requirements.
16 U.S. Department of Health and Human Services
and U.S. Department of Agriculture. Dietary
Guidelines for Americans, 2015–2020. 8th Edition.
December 2015. Available at: http://health.gov/
dietaryguidelines/2015/guidelines/.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
Schools using these flexibilities would
be able to continue offering wholesome
and balanced lunches that support
children’s growth, development, and
academic achievement, as the existing

vegetable variety and daily and weekly
total vegetable requirements would
remain in place.
The flexibilities would be available to
all age/grade groups. As an example, the

4103

chart below shows differences between
the current meal pattern and the
proposed flexibilities for grades 9–12.

Grades 9–12

Current meal pattern:
Require 5 groups/week

Proposed alternative for
program operators facing
operational challenges:
Require 5 groups/week
(same minimum amounts)
+ legumes flexibility

Vegetable Requirements ..................

5 cups/week ..............................................................
1 cup/day ..................................................................
0.5 .............................................................................
1.25 ...........................................................................
0.5 .............................................................................
0.5 .............................................................................
0.75 ...........................................................................
1.5 .............................................................................
Local menu planners decide which vegetables to
offer.

5 cups/week.
1 cup/day.
0.5.
0.5.
* 0.5.
0.5.
0.5.
2.5–3.
Local menu planners decide which vegetables to
offer.

Dark green ........................................
Red/orange .......................................
Beans and peas (Legumes) .............
Starchy .............................................
Other .................................................
+ cups to reach weekly 5 cup minimum.

* Legumes offered as a meat alternate could meet the weekly legumes subgroup requirement. However, legumes offered as a meat alternate
would not count toward the daily and weekly vegetable minimums (1 cup and 5 cups, respectively, in the grades 9–12 example above) because
doing so could significantly reduce calories.

jbell on DSKJLSW7X2PROD with PROPOSALS3

In addition to the changes proposed
in this rulemaking, FNS recently made
several updates to crediting and meal
pattern guidance that seek to ease
vegetable subgroup requirements:
(1) Pasta made of vegetable flour(s)
may credit as a vegetable, even if the
pasta is not served with another
recognizable vegetable.17
(2) Menu planners may estimate the
amounts of specific subgroups in
vegetable mixtures and credit them
accordingly (assuming the minimum
creditable amount of 1⁄8 cup is
present).18
(3) Salad bars may be located after the
point-of-service/point-of-sale if students
have access to instructions and serving
utensils needed to select required
amounts, and provided that the salad
bar meets State and local health
department requirements.19
These recent updates and the
proposed flexibilities in this rule
respond to input from State and local
17 Policy memo. Crediting Pasta Products Made of
Vegetable Flour in the Child Nutrition Programs.
(SP 26–2019, CACFP 13–2019, SFSP 12–2019,
published April 19, 2019). Available at: https://
www.fns.usda.gov/school-meals/crediting-pastaproducts-made-vegetable-flour-child-nutritionprograms.
18 Policy memo. Meal Requirements under the
National School Lunch Program and School
Breakfast Program: Questions and Answers for
Program Operators. (SP 38–2019, published
September 23, 2019). Available at: https://
www.fns.usda.gov/school-meals/mealrequirements-under-national-school-lunchprogram-and-school-breakfast-program.
19 Policy memo. Salad Bars in the National
School Lunch Program and School Breakfast
Program. (SP 41–2019, published September 23,
2019). Available at: https://www.fns.usda.gov/
school-meals/salad-bars-national-school-lunchprogram-and-school-breakfast-program.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

Program operators who, at listening
sessions and roundtable discussions,
shared their challenges of offering
students a wide variety of healthy
vegetables while still meeting the
requirement to offer different quantities
of vegetable subgroups over the course
of a school week. USDA is committed to
promulgating common-sense
flexibilities that help local Program
operators offer wholesome foods that are
appealing to children, while
maintaining student participation,
encouraging meal consumption, and
minimizing food waste. The proposed
alternatives are consistent with the
Administration’s regulatory reform,
allows more discretion and efficiency in
local school food service operations,
and maintains children’s access to key
vegetable subgroups recommended for
increased consumption by the Dietary
Guidelines.
What would stay the same?
Program operators who wish to offer
all five vegetable subgroups in the
amounts specified in the existing lunch
meal pattern may continue to do so. The
proposed flexibility to offer the same
weekly amount of each subgroup is
optional and primarily intended for
Program operators experiencing
challenges with specific vegetable
subgroups. Under this proposal, schools
would continue to offer children at least
the same minimum amounts of
vegetables daily and weekly (varied by
age/grade group) as established in the
existing meal patterns. Under Offer
versus Serve, at least 1⁄2 cup of fruits
and/or vegetables would still be
required for a reimbursable meal.

PO 00000

Frm 00011

Fmt 4701

Sfmt 4702

Specific Public Input Requested
USDA seeks public comments on the
minimum weekly amount(s) that SFAs
should be required to offer from each
vegetable subgroup. The proposed
changes would retain the daily and
weekly total vegetable minimums,
which ensure that school meals offer
children 33–50 percent of total
vegetables (by volume) that the Dietary
Guidelines recommend children
consume in a typical 5-day school
week.20 This is consistent with the goal
of school lunches to provide
approximately 32 percent of nutrients
that children need for optimum growth
and development. This proposal would
lower the required amount of red/orange
vegetables offered to all age/grade
groups, and the required amount of
other vegetables offered to grades 9–12.
Therefore, local Program operators
would have more flexibility to choose
which vegetables are offered to meet
minimum daily and weekly vegetable
requirements. USDA seeks public input
on how this proposal could be
implemented in a way that supports
menu planners in offering a variety of
healthy vegetables to children.
The proposed flexibility to offer the
same weekly amount from all vegetable
subgroups is in 7 CFR 210.10(m)(4)(ii) of
the regulatory text. The proposed
flexibility to offer legumes as a meat
alternate and simultaneously meet the
20 The Dietary Guidelines recommended amounts
vary by calorie levels. School-aged children
typically require between 1,200 calories (sedentary,
5-year-old) and 3,200 calories (active, 18-year-old)
per day. Additional information is available at:
https://health.gov/dietaryguidelines/2015/
guidelines/.

E:\FR\FM\23JAP3.SGM

23JAP3

4104

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

weekly legume vegetable requirement is
in 7 CFR 210.10(c)(2)(iii) of the
regulatory text.
Add Flexibility to Established Age/
Grade Group
Current Requirements

jbell on DSKJLSW7X2PROD with PROPOSALS3

Childhood overweight and obesity are
critical public health concerns. To avoid
excessive calorie intake and provide
age-appropriate school meals, USDA
regulations at 7 CFR 210.10(c)(1) and
220.8(c)(1) establish NSLP and SBP
meal patterns for three age/grade
groups: K–5, 6–8, and 9–12. These age/
grade groups reflect widely used school
grade configurations and are consistent
with the National Academies of
Sciences, Engineering, and Medicine’s
Dietary Reference Intake (DRI)
groupings.21 The meal patterns specify
amounts of food and dietary
specifications (calories, saturated fat,
trans fat, and sodium) for each age/
grade group to support healthy weight
and minimize chronic disease risk in
the student population. Use of these
age/grade groups enables schools to
provide meals that meet the nutrition
needs of most school children.
Through the SBP and NSLP, USDA
aims to offer age-appropriate meals to
provide school children the energy
needed for learning and development.
USDA’s School Nutrition and Meal Cost
Study found that, overall, 41 percent of
average weekly lunch menus fell within
the specified calorie range (that is, they
met both the minimum and maximum
calorie levels). It was more common for
average weekly lunch menus in
elementary and middle schools to
exceed the maximum calorie level (40
percent and 34 percent, respectively)
than to fall below the minimum calorie
level (13 percent and 24 percent,
respectively). However, the findings
were reversed for high schools:
Approximately 66 percent of average
weekly lunch menus for high schools
fell below the minimum calorie level.
Existing flexibility permits a school to
use one lunch meal pattern for students
in grades K through 8 as food quantity
requirements overlap for groups K–5
and 6–8 (7 CFR 210.10(c)(1)). In such a
case, the school continues to be
responsible for meeting the calorie,
21 Developed by the National Academy of
Medicine, the Dietary Reference Intakes (DRIs) are
nutrient reference values that support many
program, policy, and regulatory initiatives. The
DRIs serve as a guide for good nutrition and provide
the scientific basis for the development of food
guidelines in the United States and Canada. More
information is available at http://
nationalacademies.org/hmd/about-hmd/leadershipstaff/hmd-staff-leadership-boards/food-andnutrition-board.aspx.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

saturated fat, and sodium standards, as
well as the meat/meat alternate
minimums, for each of the age/grade
groups receiving the school meals.
However, due to several nonoverlapping requirements for groups 6–
8 and 9–12, USDA does not currently
permit flexibility to use one lunch meal
pattern for these age/grade groups.
USDA recognizes that the existing
flexibility does not meet the needs of
some schools, especially small schools
in rural areas, with unique grade
configurations and logistical challenges
that may interfere with the reasonable
use of the established age/grade groups
and flexibility.
Proposed Flexibility in Age/Grade
Groups
This rule proposes two common-sense
flexibilities to help schools with unique
grade configurations that differ from the
age/grade groups established in Program
regulations (K–5, 6–8, 9–12). In the
proposed rule, Nutrition Standards in
the National School Lunch and School
Breakfast Programs (76 FR 2494,
published January 13, 2011), USDA
proposed the age/grade groups
recommended by the Health and
Medicine Division of the National
Academies of Science, Engineering, and
Medicine (formerly, the Institute of
Medicine (IOM)). In response to the
proposed rule, a few commenters
requested flexibility in use of the age/
grade groups (e.g., one grade level
leeway); however, the 2012 final rule
implemented the IOM recommended
age/grade groups to ensure that children
are offered age-appropriate meals.
Experience since implementation
suggests that some flexibility in age/
grade groups would ease requirements
for local Program operators, and help
them offer wholesome meals in different
types of schools in a more efficient
manner. The proposed flexibilities are
as follows:
• Allow schools with unique grade
configurations to use the same meal
pattern for a broader group of students
by adding or subtracting one grade on
either or both ends of an established
age/grade group.
This proposed flexibility would
enable schools with unique grade
configurations to be more efficient in
menu planning and service, and make
better use of limited resources. Schools
using this proposed flexibility would
follow the meal pattern and dietary
specifications corresponding to the
majority of grades served. For example,
a school with students in grades 7–9
could offer the meal pattern for grades
6–8 to all students (by adding one grade
to the 6–8 meal pattern to serve students

PO 00000

Frm 00012

Fmt 4701

Sfmt 4702

in grade 9). In this example, because the
6–8 age/grade group meal pattern may
not meet the calorie needs of students
in grade 9, the school would have the
option of offering additional food (e.g.,
larger portions, additional choices) to
the older students to ensure they receive
age-appropriate meals. This flexibility
would be available to all schools. Any
SFA would be able to elect this
flexibility by notifying their State
agency; State agency approval would
not be required.
• Allow schools with unique grade
configurations in small SFAs (i.e., SFAs
serving fewer than 2,500 students) to
use one or two meal patterns to plan
meals for students in all grades.
This proposed flexibility would
permit schools with unique grade
configurations in small SFAs to follow
one or two NSLP and/or SBP meal
pattern(s) to plan meals more efficiently.
The Dietary Guidelines would continue
to be the foundation for meal pattern
requirements. This flexibility would
help local Program operators maintain
efficient food service operations while
offering meals to schoolchildren in
multiple age/grade groups.
For example, in a K–12 school in a
small SFA, it may be operationally
efficient for a menu planner to use the
grades 6–8 meal pattern to plan meals
for all students. Using a single meal
pattern may overfeed younger students
and underfeed older students, therefore,
schools would have the option of
offering additional food (e.g., larger
portions, additional choices) to older
students to ensure they receive ageappropriate meals. This flexibility
would only be available to schools with
unique grade configurations in SFAs
serving fewer than 2,500 students. SFAs
that choose to exercise this flexibility
would work with their State agency to
identify which meal pattern(s) best
balance operational ease and offering
children age-appropriate meals.
The proposed age/grade group
flexibilities respond to input from State
and local Program operators, who
shared that the current regulatory
requirements do not work for the unique
and varied age/grade group structure of
schools across the country, especially
small, often rural SFAs that adopt
unique grade configurations to best
serve their communities. USDA is
committed to easing regulatory
requirements so that local Program
operators, who understand their
communities’ unique situations and
needs, have discretion to administer the
SBP and NSLP most efficiently. Any
small SFA would be able to elect this
flexibility by notifying their State

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
agency; State agency approval would
not be required.
What would stay the same?
This proposed rule would maintain
the established age/grade groups for
menu planning for Program operators
offering meals to students in schools
with grade configurations that align
with the age/grade groups established in
7 CFR 210.10(c)(1). Schools with unique
grade configurations may benefit from
the flexibilities described above.
Schools adopting one of the proposed
flexibilities would be encouraged to
offer additional foods to older children
who receive meals based on meal
patterns intended for younger children.
For example, such schools may offer
older students larger portions or
additional choices to ensure their
calorie and nutrient needs are met.
Specific Public Input Requested
USDA seeks public comments on:
• The benefits of each proposed age/
grade group flexibility, including how
the proposals may ease requirements for
local Program operators;
• The drawbacks of each proposed
age/grade group flexibility, including
the potential of overfeeding or
underfeeding children by offering meals
not designed for their age/grade group;
and
• The feasibility of offering additional
foods or larger portions to older
children when schools plan meals based
on the meal pattern for younger
children.
The proposed flexibilities to the
established age/grade groups are in 7
CFR 210.10(c)(1) and (m)(4) and
220.8(c)(1) and (m)(2) of the regulatory
text.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Increase Flexibility To Offer Meats/Meat
Alternates at Breakfast
Current Requirements
Prior to the 2012 meal pattern
updates, SBP operators could offer
meats/meat alternates, grains, or a
combination of meats/meat alternates
and grains at breakfast. Regulations
specified that Program operators could
offer meats/meat alternates only, grains
only, or a combination of the two.
Currently, meats/meat alternates are not
required in the SBP meal pattern; only
fruits, grains, and fluid milk are
required (7 CFR 220.8(c)(2)). In the
proposed rule, Nutrition Standards in
the National School Lunch and School
Breakfast Programs (76 FR 2494,
published January 13, 2011), USDA
proposed a daily meat/meat alternate
requirement in the SBP. However, many
school districts expressed concerns
about offering a daily meat/meat

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

alternate at breakfast due to cost,
logistical and food safety challenges,
and availability of meat/meat alternate
products that would meet the dietary
specifications for sodium and saturated
fat. Prior to 2012, schools had the
flexibility to offer one serving each of
grains and meat/meat alternate, or two
servings of either one at breakfast.
Therefore, some of the longstanding SBP
flexibility to offer grains and/or meats/
meat alternates was retained in the final
rule for operational efficiency and cost
effectiveness: Menu planners that offer
a minimum amount of grains may offer
meats/meat alternates to credit toward
the grains requirements. Meats/meat
alternates may also be offered in the
SBP as ‘‘extra’’ food items that do not
count toward meal pattern
requirements, but are subject to dietary
specifications (calories, saturated fat,
trans fat, and sodium).
USDA recognizes that Program
operators want to offer meals that
appeal to students and encourage
participation in the school meal
programs. In listening sessions and
roundtable discussions, Program
operators expressed confusion about the
requirement to offer a minimum amount
of grains in order to offer meats/meat
alternates.
Proposed Changes to SBP Grains
Component
This rule proposes to allow schools to
offer meats/meat alternates and/or
grains interchangeably in the SBP, with
no minimum grain requirement. It
would remove the requirement to offer
a minimum amount of grains before
meats/meat alternates can be offered.
Instead, Program operators would be
permitted to offer 1–2 ounce equivalents
of grains or meats/meat alternates, or a
combination of the two, daily to total a
minimum of 7–9 ounce equivalents over
a school week (amounts vary depending
on the age/grade group).
The proposed flexibility responds to
input from State and local Program
operators who want to offer meats/meat
alternates at breakfast without the
requirement to offer a grain first. In
December 2017, USDA solicited
comments on the Child Nutrition
Programs crediting system through a
Request for Information (RFI).22 USDA
sought public input about specific foods
of interest to stakeholders and asked for
recommendations to make crediting
more simple, fair, and transparent. FNS
received a total of 437 comments.
Several commenters from State agencies
22 Food Crediting in the Child Nutrition Programs:
Request for Information. 82 FR 58792, published
December 14, 2017.

PO 00000

Frm 00013

Fmt 4701

Sfmt 4702

4105

and the food industry, asked USDA to
make it easier for local Program
operators to offer meats/meat alternates
in the SBP. This proposal responds to
those comments, and would allow menu
planners to offer grains and/or meats/
meat alternates in the SBP.
USDA is conscious of how
complexities in meal pattern
requirements are challenging for some
local school food service staff, and
strives to simplify Program
requirements so local food service staff
can focus on feeding children.
What would stay the same?
Program operators would not be
required to change menu planning
practices. Menu planners could
continue to offer grains only in the SBP,
consistent with current requirements.
Remaining elements of the SBP meal
pattern (i.e., fruit and fluid milk
requirements) would not change.
The proposed change to the SBP
grains component is in 7 CFR 220.8(c)
of the regulatory text.
Flexibility in SBP Fruit Component
Current Requirements
Fruit is one of three required
components in the SBP meal pattern (7
CFR 220.8(c)(2)). Schools are required to
offer students in all grades at least one
cup of fruit per day at breakfast.
Although offer versus serve (OVS) is
optional in the SBP, many schools use
OVS and allow students to take only 1⁄2
cup fruit at breakfast if they do not want
the whole cup.23
In addition to the traditional,
cafeteria-based breakfast model, schools
may operate an alternative breakfast
model. For example, ‘‘Breakfast in the
Classroom’’ involves serving the
breakfast meal to children during a
morning class, often while the teacher is
taking attendance or giving classroom
announcements. Schools operating
‘‘Grab & Go Breakfast’’ serve children a
breakfast ‘‘to go,’’ often in a bag, before
school or during a morning break.
Alternative breakfast models give more
children an opportunity to eat breakfast,
ensuring they have the nutrition
necessary to optimize learning and
development.
SBP meals served outside the cafeteria
are often pre-packaged for convenience
and operational ease. Students generally
have fewer choices when SBP is offered
in a non-cafeteria setting and have
limited opportunities to decline food
23 Offer versus serve is a provision in the NSLP
and SBP that allows students to decline some of the
food offered. The goals of OVS are to reduce food
waste in the school meals programs while
permitting students to decline foods they do not
intend to eat.

E:\FR\FM\23JAP3.SGM

23JAP3

4106

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

items, and Program operators are
required to offer students a full cup of
fruit.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Proposed Flexibility in SBP Fruit
Component
To help reduce food waste and
encourage breakfast service outside the
cafeteria, this rule proposes to allow
SBP operators to offer 1⁄2 cup of fruit in
reimbursable breakfasts served outside
the cafeteria, with State agency
approval. Consistent with the Dietary
Guidelines’ emphasis on fruit intake,
this proposal continues to provide
children with access to fruit in the SBP,
while promoting operational efficiency
and reducing food waste. This flexibility
would make the fruit requirement for
breakfasts served outside the cafeteria
consistent with the minimum amount of
fruit required for a reimbursable meal in
schools using OVS in cafeteria settings.
When breakfast is served outside the
cafeteria, food waste is a concern.
Classrooms, buses, hallways, and other
areas where breakfast might be offered
do not have a cafeteria-like capacity to
collect food waste. Pre-packaged meals
often contain the required one cup of
fruit. Some Program operators are
concerned that one cup is too much
fruit for younger students who eat less,
and assert that excess fruit is ending up
in the trash. Under OVS, in a cafeteria
setting, students are offered one cup of
fruit, but only required to take 1⁄2 cup
for a federally reimbursable meal
(provided that the other required meal
components are included). Currently, if
a school does not use OVS, students
offered SBP in non-cafeteria settings
must take one full cup of fruit; food that
is not eaten in the time allotted is often
thrown away. This may contribute to
food waste in non-cafeteria settings. In
recent listening sessions and roundtable
discussions about food waste, some
Program operators suggested this
strategy to reduce food waste: Allow
school breakfasts served outside the
cafeteria to be reimbursed with only 1⁄2
cup of fruit offered. Wasting food is bad
business for school food service
operations; this proposal aims to
support financial stability and help
school food service operations minimize
food waste.
USDA understands this change could
result in a concurrent reduction in
calories in the SBP meal pattern.
However, USDA does not propose any
changes to the average weekly minimum
calorie requirements in the SBP.
Schools that choose to exercise this
flexibility would be encouraged to offer
additional fruit to students who would
like a full cup (e.g., have a basket of

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

whole fruits available on the breakfast
cart for students to take more fruit).
In addition, this flexibility may entice
more schools to offer school breakfast in
non-cafeteria settings. The potential
increase in alternative SBP service
models could result in increased
participation (i.e., more students eating
school breakfast and starting the school
day well-nourished and ready to learn).
What would stay the same?
SBP operators that offer breakfast to
students in the cafeteria must continue
to offer one cup of fruit to students in
all age/grade groups. Schools offering
the SBP outside the cafeteria may also
continue to offer one cup of fruit to all
age/grade groups. In all settings where
breakfast is offered, students would still
be required to select at least 1⁄2 cup of
fruit for a reimbursable breakfast. No
additional changes to the weekly
average calorie minimums are being
proposed, and OVS remains an option
for the SBP at all grade levels.
Specific Public Input Requested
USDA’s School Nutrition and Meal
Cost Study found that, overall, more
than half (56 percent) of average weekly
breakfast menus fell within the
specified calorie range (that is, they met
both the minimum and maximum
calorie levels). While it was more
common for average weekly breakfast
menus across all school types to exceed
the maximum calorie level (36 percent
overall), approximately 18 percent of
average weekly menus for high schools
offer too few calories. USDA seeks
public comments on:
• Expected benefits of permitting
schools to offer 1⁄2 cup of fruit in noncafeteria breakfasts;
• The potential of underfeeding
children by offering less fruit; and
• The feasibility of offering additional
foods or larger portions to older
children and children who would like a
full cup of fruit.
The proposed change to permit
schools to serve 1⁄2 cup of fruit in
breakfasts served in non-cafeteria
settings is in 7 CFR 220.8(c)(2) and
(m)(1) of the regulatory text.

respectively).24 Since these USDA
regulations were implemented, the
Department of Health and Human
Services’ Food and Drug Administration
(FDA) determined that partially
hydrogenated oils—the leading dietary
source of synthetic trans fats—are not
‘‘Generally Recognized as Safe’’ (or
GRAS) because trans fats are associated
with negative health consequences (e.g.,
heart disease, high cholesterol). After
reviewing extensive clinical data and
public comments, the FDA enacted
regulations to eliminate partially
hydrogenated oils from the food
supply.25 The FDA originally
established the compliance deadline as
June 18, 2018, for all products, but has
extended the deadline due to the shelf
life of some food products. The FDA
prohibited the addition of partially
hydrogenated oils to foods effective June
18, 2018; however, petitioned uses of
partially hydrogenated oils were
allowed to continue through June 18,
2019. Old inventory may exist in the
food supply until January 1, 2021, after
which synthetic trans fats will be
effectively eliminated from the food
supply.
Flexibilities Proposed by This Rule
Under this proposal, the current
synthetic trans fats limit for SBP, NSLP,
and competitive foods would be
removed effective July 1, 2021.
Beginning SY 2021–2022, State and
local Program operators would not have
to comply with, or monitor, synthetic
trans fats in school meals or competitive
foods.
FDA’s regulations are removing
synthetic trans fats from the United
States food supply. Therefore, it is
unnecessary for USDA to maintain
additional regulations to prohibit
synthetic trans fats in school meals. The
proposed changes to remove the
synthetic trans fat limit are in 7 CFR
210.10, 210.11, and 220.8 of the
regulatory text.
Change the Performance-Based
Reimbursement (7 Cents) Quarterly
Report to an Annual Report
Current Requirement

Current Requirements

States are currently required to submit
a quarterly report to USDA detailing
SFAs certified to receive the
performance-based reimbursement (7
CFR 210.5(d)(2)(ii)). Currently, more
than 99 percent of SFAs are certified to

Synthetic trans fats are currently
prohibited in the NSLP and SBP, and in
all foods sold to students on campus
during the school day (7 CFR
210.10(f)(4), 220.8(f)(4), and 210.11(g),

24 This restriction does not apply to naturally
occurring trans fats present in meat and dairy
products.
25 https://www.fda.gov/food/ingredients
packaginglabeling/foodadditivesingredients/
ucm449162.htm.

Remove Synthetic Trans Fat Limit as a
Dietary Specification

PO 00000

Frm 00014

Fmt 4701

Sfmt 4702

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
receive the performance-based
reimbursement.26 The report is no
longer needed quarterly because nearly
all SFAs are certified to receive the
performance-based reimbursement.
As part of the recent Child Nutrition
Programs Reducing Burden Study, FNS
sought feedback from State and local
Program operators about administrative
burden. The study aimed to identify the
best means of efficiently consolidating
Child Nutrition Program administrative
and reporting requirements, to simplify
regulations, and to improve efficiencies.
Reviewing and reconciling information
to submit reports, and the amount/type
of information required, were noted as
frequent contributors to State and local
reporting burden.
Flexibilities Proposed by This Rule
This rule proposes that the
performance-based reimbursement
quarterly reporting requirement
specified in 7 CFR 210.5(d)(2)(ii) be
changed to an annual reporting
requirement.
USDA is proposing to reduce the
frequency of this reporting requirement
in response to Program operator
feedback. USDA seeks to ease Program
requirements so State and local Program
operators have more time to focus on
feeding children.
The proposed change to make the
performance-based reimbursement (7
cents) quarterly report an annual report
is in 7 CFR 210.5(d)(2)(ii) of the
regulatory text.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Update Meal Modifications for
Disability and Non-Disability Reasons
Current Requirements
Schools participating in the NSLP and
SBP are required to ensure that children
with disabilities have an equal
opportunity to participate in, and
benefit from, the NSLP and SBP.
Likewise, institutions, child care
facilities, and adult day care facilities
(‘‘institutions and facilities’’)
participating in the Child and Adult
Care Food Program (CACFP) must
ensure equal access to Program benefits
regardless of disability status. This
includes providing special meals, at no
extra charge, to Program participants
with a disability that restricts their diet.
FNS proposes several changes to
regulations at 7 CFR 210.10(m) and
226.20(g) to align Program regulations
with statutory requirements established
in the Americans with Disabilities Act
(ADA) Amendments Act of 2008, Public
Law 110–325 (42 U.S.C. 12101).27
26 FNS

administrative data, February 2019.
27 https://www.congress.gov/110/plaws/publ325/
PLAW-110publ325.pdf.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

Current regulations at 7 CFR
210.10(m) and 226.20(g) describe
exceptions and variations in
reimbursable meals, including
exceptions due to a disability that
restricts a participant’s diet. Schools,
institutions, and facilities are required
to make substitutions to ensure Program
participants with disabilities have an
equal opportunity to participate in, and
benefit from, the Federal meal programs
(7 CFR 210.10(m)(1) and 226.20(g)(1)).
Current regulations require substitutions
to be made only when the need for the
substitution is supported by a written
statement signed by a licensed
physician.
Current regulations also describe
‘‘medical or other special dietary needs’’
that are not considered disabilities, but
prevent a Program participant from
consuming the regular meal. Schools,
institutions, and facilities are currently
allowed, but not required, to make
substitutions for ‘‘medical or other
special dietary needs’’ (7 CFR
210.10(m)(2) and 226.20(g)(2)). Current
regulations require schools, institutions,
and facilities to obtain a written
statement signed by a recognized
medical authority in order to make a
substitution due to a participant’s
‘‘medical or other special dietary need,’’
except for fluid milk substitutions.
Consistent with statute, schools,
institutions, and facilities have
discretion to provide fluid milk
substitutions with a note from a medical
authority, a note from the child’s parent
or guardian, or a note by, or on behalf
of, an adult participant (7 CFR
210.10(m)(2)(ii)(B) and 226.20(g)(3)). In
the 2004 Child Nutrition and WIC
Reauthorization Act, Congress directed
FNS to establish nutrition standards for
fluid milk substitutions, and required
FNS to include standards for calcium,
protein, vitamin A, and vitamin D.
Therefore, fluid milk substitutions for
‘‘medical or other special dietary needs’’
must meet the nutrition standards
included in FNS regulations at 7 CFR
210.10(d)(3) and 226.20(g)(3).
Additionally, current regulations
encourage schools to consider ‘‘ethnic,
religious, or economic’’ factors when
planning or preparing meals, provided
the variations are within the meal
pattern requirements (7 CFR
210.10(m)(3)). Current regulations allow
institutions and facilities, with FNS
approval, to vary meal components on
an experimental or continuing basis if
the variation is nutritionally sound and
necessary to meet ethnic, religious,
economic, or physical needs (7 CFR
226.20(h)).
According to the U.S. Census Bureau,
approximately 56.7 million people in

PO 00000

Frm 00015

Fmt 4701

Sfmt 4702

4107

the United States had a disability in
2010.28 Further, 2.8 million school-age
children (ages 5 to 17) were reported to
have a disability in 2010.29 It is
important that FNS provide up-to-date
guidance so that schools, institutions,
and facilities participating in the
Federal meal programs understand their
legal obligation to ensure Program
participants with disabilities have an
equal opportunity to participate in and
benefit from the Federal meal programs.
To that end, FNS has developed
policy guidance, consistent with
applicable Federal law. On September
27, 2016, FNS issued SP 59–2016:
Policy Memorandum on Modifications
to Accommodate Disabilities in the
School Meal Programs. In 2017, FNS
issued SP 26–2017: Accommodating
Disabilities in the School Meal
Programs: Guidance and Questions and
Answers, SP 40–2017: Accommodating
Children with Disabilities in the School
Meal Programs, and CACFP 14–2017:
Modifications to Accommodate
Disabilities in the Child and Adult Care
Food Program and Summer Food
Service Program. These policy resources
provide detailed guidance on how the
broader vision of the ADA can be
implemented in Federal meal programs
nationwide.
However, current Program regulations
are not consistent with statute, as
described below. FNS aims to correct
this inconsistency with this proposed
regulation.
Proposed Update to Disability
Modifications Requirements
The basis for these changes is
statutory. The ADA Amendments Act of
2008 made important changes to the
meaning and interpretation of the term
‘‘disability.’’
According to the ADA, the term
‘‘disability’’ means:
• A physical or mental impairment
that substantially limits one or more
major life activities;
• A record of such an impairment;
and
• Being regarded as having such an
impairment.
In the ADA, Congress provided a nonexhaustive list of ‘‘major life activities,’’
including eating and breathing.
Additionally, Congress clarified that the
operation of a ‘‘major bodily function’’
is considered a major life activity.
Examples of major bodily functions
include (but are not limited to)
digestive, bowel, bladder, and
respiratory functions.
28 https://www2.census.gov/library/publications/
2012/demo/p70-131.pdf.
29 https://www.census.gov/library/publications/
2011/acs/acsbr10-12.html.

E:\FR\FM\23JAP3.SGM

23JAP3

jbell on DSKJLSW7X2PROD with PROPOSALS3

4108

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

The Department of Justice
implemented the ADA Amendments
Act in 2016 with the final rule,
Amendment of Americans with
Disabilities Act Title II and Title III
Regulations to Implement ADA
Amendments Act of 2008.30 The final
rule clarified that the terms ‘‘disability’’
and ‘‘substantially limits’’ must be
construed broadly and in favor of
expansive coverage. For instance, a food
allergy does not need to cause
anaphylaxis to be considered a
disability. A non-life threatening allergy
may be considered a disability and
require a meal modification, if it
impacts a major bodily function or other
major life activity. After the passage of
the ADA Amendments Act, most
physical and mental impairments are
considered disabilities.
Based on this expanded definition of
‘‘disability,’’ this rule proposes
removing the term ‘‘medical or other
special dietary needs’’ from the
regulations. ‘‘Medical or other special
dietary needs’’ that prevent a Program
participant from consuming a meal or
meal component are considered a
disability under this expanded
definition. This rule proposes breaking
the regulatory language into the
following two paragraphs—‘‘Reasonable
modifications for disability requests’’
and ‘‘Variations for non-disability
requests’’—to more clearly distinguish
between these two situations. The
proposed ‘‘Variations for non-disability
requests’’ paragraph includes variations
for cultural, ethical, Tribal, and
religious preferences.
Additionally, the Department of
Justice’s final rule clarified that
determining whether an individual’s
impairment is a disability under the
ADA should not demand extensive
analysis. To that end, through policy
guidance, FNS has broadened the scope
of who is permitted to write a medical
statement, to include State licensed
healthcare professionals. In guidance,
FNS has defined a State licensed
healthcare professional as an individual
authorized to write medical
prescriptions under State law. For
example, in many States, this will
include licensed nurse practitioners and
licensed physicians. This proposal
incorporates this change into regulation,
and adds a definition for ‘‘State licensed
healthcare professional’’ at 7 CFR 210.2
and 226.2. FNS also considered
accepting medical statements from other
licensed professionals who are not
authorized to write medical
prescriptions under State law, such as
30 https://www.ada.gov/regs2016/final_rule_
adaaa.html.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

dietitians, nutritionists, psychologists,
and clinical social workers. FNS aims to
ensure that meal pattern exceptions are
based on bona fide medical reasons.
Therefore, FNS requests public
comment on the proposed definition of
‘‘State licensed healthcare
professional,’’ including if the definition
should be broadened.
Through policy guidance, FNS has
also clarified that a written medical
statement is only required when a
disability modification results in a meal
that does not meet the meal pattern
requirements, reducing burden on
schools, institutions, facilities, and
families. FNS proposes to add this
clarification to the regulations.
Finally, when a disability
modification is no longer needed, FNS
has recommended in policy guidance
that schools, institutions, and facilities
obtain written documentation
rescinding the original medical
statement. This could include, for
example, a written statement from the
child’s parent or guardian indicating
that the disability modification is no
longer needed. To better align the nondisability fluid milk substitution
regulations with disability modification
regulations and current policy guidance,
FNS proposes to remove language at 7
CFR 210.10(m)(2)(iii) describing the
process to revoke a non-disability fluid
milk substitution request. FNS expects
this change will allow more flexibility
for local Program operators to manage
fluid milk substitution requests in a way
that meets their communities’ needs and
reduces burden for households.
This proposal would align USDA
regulations with current law and
guidance.
What would stay the same?
The proposed revisions would not
change the overarching requirement that
schools, institutions, and facilities make
reasonable modifications for Program
participants with disabilities that
restrict their diet. Rather, the proposed
changes align FNS regulations with
current statutory requirements and
make a clearer distinction between
disability and non-disability situations.
Schools, institutions, and facilities
would still be encouraged to meet
participants’ dietary requests and
preferences that are not considered
disabilities, including those related to
cultural, ethical, Tribal, or religious
preferences and principles, provided the
variations are within the meal pattern
requirements. Because menus are
planned locally, schools, institutions,
and facilities have flexibility to
determine which foods to serve, the
number of choices (if any), and how

PO 00000

Frm 00016

Fmt 4701

Sfmt 4702

foods are prepared. FNS strives to
provide schools, institutions, and
facilities the resources they need to
serve culturally appropriate meals to
participants. For example, FNS issued
guidance in 2015 to clarify that
traditional foods may be served in the
Child Nutrition Programs, and provided
examples of how several traditional
foods (such as buffalo, blue cornmeal,
and wild rice) may credit towards a
reimbursable meal.31 FNS has also
published guidance on procuring local
meat, including traditional foods like
bison and venison, for use in the Child
Nutrition Programs.32 The proposed
changes to the terminology in this
section seeks to align with reasons that
variations may be requested for
participant meals (e.g., an ethical
preference for vegetarian meals).
Finally, the proposed regulations
maintain several requirements regarding
fluid milk substitutions for nondisability reasons. This is due to
specific statutory requirements included
in the NSLA. The proposed regulation
maintains the option for schools,
institutions, and facilities to provide
fluid milk substitutions for nondisability reasons, and continues to
allow SFAs, institutions, and facilities
to select nondairy beverage(s) that meet
FNS nutrition standards. For schools
that opt to provide fluid milk
substitutions, the proposed regulation
maintains the requirement that they
obtain a written request from a parent or
guardian, or by, or on behalf of, an adult
participant to support a request for a
fluid milk substitution in a nondisability situation. Also, as required by
statute, the proposed regulations
maintain the requirement that SFAs
notify the State agency if any of their
schools choose to offer fluid milk
substitutions for non-disability reasons.
Finally, the proposed regulation
maintains the nutrition standards for
fluid milk substitutions.
Specific Public Input Requested
USDA is seeking public comment on
the following questions:
• Is it too burdensome to require a
note from a State licensed healthcare
professional for meal modifications that
do not meet the meal pattern
requirements?
31 Policy memo TA 01–2015. Child Nutrition
Programs and Traditional Foods, published July 15,
2015. Available at: https://fns.usda.gov/sites/
default/files/TA01-2015_Child_Nutrition_
Programs_and_Traditional_Foods.pdf.
32 Policy memo SP 01–2016. Procuring Local
Meat, Poultry, Game, and Eggs for Child Nutrition
Programs, published October 22, 2015. Available at:
https://fns.usda.gov/sites/default/files/cn/SP01_
CACFP%2001_SFSP01-2016os.pdf.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
• Would a different definition for
State licensed healthcare professional
better facilitate reasonable meal
modifications for individuals with
disabilities?
Æ If so, which additional healthcare
professionals (e.g., licensed dietitians,
nutritionists, psychologists, and clinical
social workers) should be allowed to
write a note to support meal
modifications that do not meet the meal
pattern requirements?
The proposed updates to regulatory
language for meal modifications for
disability and non-disability requests
are in 7 CFR 210.2, 210.10(d)(3) and (m),
226.2, and 226.20(g) of the regulatory
text.
Expand Potable Water Requirement To
Include Calorie-Free, Noncarbonated,
Naturally Flavored Water
Current Requirements
Section 201 of HHFKA amended
section 9(a) of the NSLA (42 U.S.C.
1758(a)), to require that schools
participating in the SBP and NSLP make
potable water available and accessible
without restriction to children at no
charge in the place(s) where meals are
served during the meal service. FNS
originally required unflavored water.33
However, since implementation, the
availability of calorie-free,
noncarbonated, naturally flavored water
has grown in response to consumer
interest in healthy beverage options.
Local Program operators requested
flexibility to offer naturally flavored
water (e.g., water infused with fruit) to
meet the potable water requirement.
Offering naturally flavored water is
expected to make water more appealing
to children, thereby increasing water
consumption.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Proposed Update to Potable Water
Requirements
This rule proposes to expand the
potable water requirement to permit
schools to offer calorie-free, naturally
flavored, noncarbonated water.
Flavoring added to water would be
required to meet the FDA’s definition of
‘‘natural flavor or natural flavoring’’
described at 21 CFR 501.22(a)(3).
What would stay the same?
Schools may continue to meet the
potable water requirement by making
unflavored, potable water available and
accessible without restriction to
children at no charge in the place(s)
33 Policy memo SP 28–2011. Child Nutrition
Reauthorization 2010: Water Availability During
National School Lunch Program Meal Service,
published July 15, 2015. Available at: https://
www.fns.usda.gov/water-availability-during-nslpmeal-service.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

where meals are served during the meal
service.
Proposals To Simplify Competitive
Foods
Extend the Entre´e Exemption
Timeframe
Current Requirements
In an effort to create healthy school
nutrition environments, regulations at 7
CFR 210.11(c)(3) established nutrition
standards for foods sold to students
outside of school meals, on the school
campus during the school day. Such
foods, commonly referred to as
competitive foods, may be available to
students in the cafeteria, vending
machines, school stores, or other
campus locations. The competitive food
standards establish nutrition
requirements that each individual food
item sold on the school campus during
the school day must meet. The
competitive food standards also include
nutrition requirements for entre´es sold a`
la carte.
For a unitized reimbursable Program
meal, USDA meal patterns establish
daily and weekly nutrition standards
that provide age-appropriate,
nutritionally balanced portions to
children.
Entre´es offered as part of a
reimbursable meal also may be sold a` la
carte as a competitive food to students.
While an entre´e item could fit into the
weekly Program meal pattern standards
as part of a unitized, reimbursable meal,
that same entre´e item may not comply
with the competitive food standards,
which are designed to apply to
individual food items.
Recognizing that foods in school
meals are typically healthier due to the
meal pattern standards, USDA provided
schools with the flexibility to sell SBP
and NSLP entre´e items as a` la carte
foods exempt from the competitive food
standards on the day the entre´e is
offered on the SBP or NSLP menu, and
on the next school day (e.g., students
can buy a piece of pizza separately on
the day the pizza is also served as part
of the unitized school lunch, and the
day after). This flexibility was
particularly designed to account for
leftovers and reduce food waste (7 CFR
210.11(c)(3)(i)).
Program operators are responsible for
procuring foods to offer in the Child
Nutrition Programs. When standards
differ—as in the case of school meals
and competitive foods—Program
operators may have to procure multiple
types of food. For example, one pizza
may meet the unitized school meal
standards, while a different pizza meets

PO 00000

Frm 00017

Fmt 4701

Sfmt 4702

4109

competitive food standards and can be
sold a` la carte.
Program operators are also concerned
about food waste. Local Program
operators appreciated the current
flexibility, and suggested that exempting
SBP and NSLP entre´es from competitive
food standards for an additional school
day would further reduce waste by
allowing additional time to sell
leftovers.
Therefore, in response to Program
operator concerns, this rule proposes to
ease requirements and exempt SBP and
NSLP entre´es from the competitive food
nutrition standards for one additional
school day. It is proposed that SBP and
NSLP entre´es be exempt from the
competitive food standards on the day
the entre´e is offered on the SBP and
NSLP menu, and for two school days
after.
The proposed change to extend the
entre´e exemption is in 7 CFR
210.11(c)(3) of the regulatory text.
Specific Public Input Requested
As previously discussed, only entre´es
are exempt from the competitive food
standards on the day such an entre´e is
offered in the school meal programs and
the day after. This rule proposes to add
an extra day to the entre´e sale
exemption. Side dishes offered as part
of the SBP and NSLP reimbursable meal
are not exempt from the competitive
food nutrition standards. Further, USDA
is taking this opportunity to solicit
public input as to whether or not to
extend the competitive food entre´e
exemption to all food items offered in
SBP and NSLP reimbursable meals.
As background information, the
proposed rule, National School Lunch
Program and School Breakfast Program:
Nutrition Standards for All Foods Sold
in School as Required by the Healthy,
Hunger-Free Kids Act of 2010 (78 FR
9530, February 8, 2013) provided two
alternatives by which any menu item
(both entre´es and side dishes) provided
as part of the NSLP and/or SBP school
meal would be exempt from all or some
of the competitive food nutrition
standards.
In an attempt to balance the majority
of commenters’ opposition to allowing
exemptions for any SBP/NSLP menu
items, the interim final rule (78 FR
39068, June 28, 2013), established that,
to ensure that improvements from the
updated school meal standards were not
undermined and for ease of
implementation, entre´e items were
provided an exemption, but side dishes
were not. This was implemented to
ensure the nutritional integrity of the
meal programs as well as the
competitive food standards. The

E:\FR\FM\23JAP3.SGM

23JAP3

4110

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

approach adopted in the interim final
rule and the subsequent final rule (81
FR 50151, July 29, 2016) was intended
to ensure that students are provided
healthful school meals, while allowing
Program operators flexibility in
planning a` la carte sales and handling
leftovers. However, given the fact that
implementation of the competitive food
nutrition standards has been in place for
a period of time, the Department is
interested in receiving feedback as to
whether or not exemptions to the
competitive food standards should be
extended to all menu items offered in
the SBP and NSLP.
Additionally, USDA is seeking
specific public input on grain products
and the definition of entre´e. Current
Program requirements specify that
entre´es that include grains and are sold
a` la carte must be whole grain-rich or
have a whole grain as the first
ingredient. This requirement is
inconsistent with the updated whole
grain-rich requirements in the SBP and
the NSLP. Therefore, USDA is seeking
public comment to determine if the
whole grain-rich/whole grain as a first
ingredient requirement should be
removed from the definition of ‘‘Entre´e’’
included in 7 CFR 210.11(a)(3)(i). This
change would make the grain
requirement for entre´es consistent
between school meals and entre´es sold
a` la carte as competitive foods. USDA
seeks comments on whether or not this
definition change is necessary,
particularly in light of the proposed
extension of the competitive food
exemption for Program entre´es. Based
on public input and at the Secretary’s
discretion, USDA may implement and/
or modify the proposed operational
flexibility in a final rule.

naturally flavored waters (with or
without carbonation), in portions up to
20 ounces, to students in all age/grade
groups. This proposal would expand the
current policy for grades 9–12 to all
grades.
Local Program operators seek healthy
foods and beverages that appeal to
students who want to purchase only
certain items, and not an entire school
lunch. Sales from a` la carte foods and
beverages help support the financial
viability of non-profit SFAs. Expanding
the sale of calorie-free, naturally
flavored waters to all students increases
healthy choices available to students
without compromising nutritional
integrity. Increased water consumption
may also offset the consumption of
other, higher-calorie beverages. This
proposal seeks to ease Program
requirements, permitting local Program
operators to decide if (and to whom)
they would like to sell naturally
flavored, carbonated or noncarbonated
water.

Expand Flexibility for the Sale of
Calorie-Free, Naturally Flavored Waters
During the School Day to All Age/Grade
Groups

This rule proposes to update language
at 7 CFR 235.5(e)(2) to change the word
‘‘unexpended’’ to ‘‘unobligated.’’ States
are currently required to return to USDA
any unexpended SAE funds at the end
of the fiscal year following the fiscal
year for which the funds are awarded.
This proposal would give States more
flexibility to spend SAE funds.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Current Requirement
Calorie-free, naturally flavored waters
(with or without carbonation) may be
sold to students in grades 9–12 only (7
CFR 210.11(m)). Calorie-free/low
calorie, non-naturally flavored,
carbonated beverages (i.e., diet soft
drinks) may be sold only to high school
students.
Program stakeholders expressed
interest in having calorie-free, naturally
flavored water—a healthy beverage
choice—available to middle and
elementary school students.
Flexibilities Proposed by This Rule
This rule proposes to allow local
Program operators to sell calorie-free,

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

What would stay the same?
This beverage flexibility does not
expand requirements for no/low calorie,
non-naturally flavored, carbonated
beverages (i.e., diet soft drinks). The
existing policy related to diet soft drinks
would stay the same: Diet soft drinks
may be sold only to high school
students.
The proposed change to expand the
sale of calorie-free, naturally flavored
waters to all age/grade groups is in 7
CFR 210.11(l) of the regulatory text.
Clarifications, Updates, and Technical
Corrections
Add Flexibility to State Administrative
Expense (SAE) Funds

Correct NSLP Afterschool Snack
Eligibility Erroneous Citations &
Definition
This rule proposes to correct
erroneous citations and a definition
related to the NSLP Afterschool Snack
Service. Regulations at 7 CFR
210.4(b)(3), 210.7(e), and 210.9(c) refer
to 7 CFR 210.10(n)(1) in error when
referring to NSLP Afterschool Snacks
site eligibility. The citation would be
corrected to refer to 7 CFR 210.10(o)(1).
This rule would provide a technical

PO 00000

Frm 00018

Fmt 4701

Sfmt 4702

correction to those three incorrect
citation references, remove old citations,
and redesignate certain paragraphs.
There is also an error in the definition
of ‘‘child’’ in 7 CFR 210.2 that this rule
proposes to correct. The NSLA permits
children through age 18 to receive
reimbursable snacks via the NSLP
Afterschool Snack Service. The current
regulatory definition of ‘‘child’’ in 7
CFR 210.2 restricts snacks to children
12 years of age or under, or in the case
of children of migrant workers and
children with disabilities, not more than
15 years of age. This rule proposes to
modify the definition of ‘‘child’’ to be
consistent with the NSLA and clarify
that children, through age 18, are
eligible to receive snacks via the NSLP
Afterschool Snack Service.
Expand List of Outlying Areas
Regulations at 7 CFR 210.10(c)(3) and
220.8(c)(3) permit schools in American
Samoa, Puerto Rico and the U.S. Virgin
Islands to serve vegetables such as
yams, plantains, or sweet potatoes to
meet the grains component. These
vegetables are traditional foods and, in
outlying areas, may be easier to procure
than grains. Based on their use of
traditional foods, this rule proposes
adding Guam and Hawaii to the list of
outlying areas permitted to serve
vegetables such as yams, plantains, or
sweet potatoes to meet the grains
component.
Change Vitamin A and Vitamin D Units
for Fluid Milk Substitutions
Nutrition requirements for fluid milk
substitutes are detailed in 7 CFR
210.10(d)(3), 215.7a(b), and 226.20(g)(3).
The vitamin A and vitamin D
requirements are specified in
International Units (IUs). The FDA
published a final rule that changed the
labeling requirements for vitamins A
and D to micrograms (mcg) rather than
IUs.34 As a conforming amendment, this
rule proposes to change the units for
vitamin A and vitamin D requirements
for fluid milk substitutes. The units for
the vitamin A requirement would
change from 500 IUs to 150 mcg per 8
fluid ounces. The units for the vitamin
D requirement would change from 100
IUs to 2.5 mcg per 8 fluid ounces. The
amounts of required vitamins A and D
in fluid milk substitutes would not
change; only the unit of measurement
would change to conform to FDA
labeling requirements.
34 Final rule. Food Labeling: Revision of the
Nutrition and Supplement Facts Labels (81 FR
33742, published May 27, 2016). Available at:
https://www.govinfo.gov/content/pkg/FR-2016-0527/pdf/2016-11867.pdf.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

As described earlier, USDA is
soliciting public input on whether the
whole grain-rich/whole grain as a first
ingredient requirement should be
removed from the definition of ‘‘Entre´e’’
included in 7 CFR 210.11(a)(3)(i), and
whether or not to extend the
competitive food entre´e exemption to all
food items offered in SBP and NSLP
reimbursable meals.

Transparency for Administrative
Review Results
Section 22(b)(1)(C)(iii) of the NSLA
directs USDA to ensure that State
agencies report the final results of
administrative reviews to the public in
an accessible, easily understood
manner. To satisfy this statutory
requirement, State agencies must post a
summary of the most recent
administrative review results for each
SFA on the State agency’s public
website, and make a copy of the final
administrative review report available to
the public upon request. The summary
must be posted no later than 30 days
after the State agency provides the
results of the administrative review to
the SFA (7 CFR 210.18(m)). While SFAs
may have outstanding findings, the
intent of the law is to provide
information on the SFA’s review to the
public, including parents and
community members, regardless of
whether there are areas of
noncompliance or needed
improvements still pending.
USDA has received feedback from
State agencies that the required
summary content and the 30-day
posting requirement are challenging.
USDA has specified minimum reporting
requirements (the summary must cover
meal access and reimbursement, meal
patterns and nutritional quality of
school meals, and the school nutrition
environment), which limit the reporting
burden on State agencies but still
provide robust information to the public
in areas of common interest. State
agencies have discretion to provide
additional summary information,
including commendations for work well
done in any area of the review. Some
States have found posting the review
summary to be too burdensome and
noted that 30 days is not enough time.
While USDA considered other
timeframes, 30 days seemed to be a
reasonable amount of time to post a
summary of an already completed
review.
The Department is seeking comments
to simplify the transparency
requirement, including the process of
posting a summary of the
Administrative Review report, the
content of that summary, and the 30-day
timeline. USDA is seeking comments to
consider how to address any challenges
or unintended burden in this
requirement. In addition, the
Department would like to know what
resources or updated guidance would be

35 Food Crediting in the Child Nutrition Programs:
Request for Information. 82 FR 58792, published
December 14, 2017.

36 Identifying Regulatory Reform Initiatives:
Request for Information. 82 FR 32649, published
July 17, 2017.

Seeking Public Input on Specific Items
This rule does not propose changes to
the following items, but USDA is
seeking public input to inform future
policymaking. Based on public input
and at the Secretary’s discretion, USDA
may incorporate these items, as
described or modified based on public
comment, in the final rule.
Substituting Vegetables for Fruits in the
SBP
SFAs participating in the SBP are
required to offer one cup of fruit daily
to children in all age/grade groups (7
CFR 220.8(c)). To meet this requirement,
SFAs may offer a vegetable in place of
a fruit. Under current regulations, SFAs
choosing to offer a vegetable in place of
a fruit at breakfast must ensure that at
least two cups per week are from the
dark green, red/orange, legumes, or
‘‘other’’ vegetables subgroups (7 CFR
220.8(c), footnote (c)). This substitution
requirement increases children’s access
to key food groups recommended by the
Dietary Guidelines.
Section 768 of the Consolidated
Appropriations Act, 2019 (Pub. L. 116–
6), enacted on February 15, 2019, and
effective through September 30, 2019,
provided additional flexibility in
planning breakfast menus but did not
require SFAs to make any menu
changes. Through September 30, 2019,
SFAs participating in the SBP could
credit any vegetable offered, including
potatoes and other starchy vegetables, in
place of fruit without including
vegetables from the designated
subgroups in the weekly menus. Section
749 of H.R. 1865, The Further
Consolidated Appropriations Act, 2020
(Pub. L. 116–94), enacted December 20,
2019, extends this flexibility through
June 30, 2021. USDA seeks public
comments on making this flexibility
permanent.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Competitive Foods: Definition of Entre´e
and Expanding Entre´e Exemption to All
SBP/NSLP Foods

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

PO 00000

Frm 00019

Fmt 4701

Sfmt 4702

4111

helpful, if any, to help State agencies
satisfy this important requirement that
helps the public engage with Programs
supported by Federal tax payer dollars.
Grain-Based Desserts in the Child and
Adult Care Food Program
Under current regulations, grainbased desserts do not count toward the
grains requirement in the Child and
Adult Care Food Program (CACFP) (7
CFR 226.20(a)(4)(iii)). In 2015, USDA
issued a proposed rule to update the
CACFP meal patterns that excluded
grain-based desserts from crediting
toward the grains requirement (80 FR
2037, published January 15, 2015). A
majority of commenters supported the
exclusion, and the final rule adopted the
proposal (81 FR 24348, published April
25, 2016). Since implementation of the
final rule, USDA issued two requests for
information soliciting ideas from the
public on (1) how to make Child
Nutrition Program food crediting more
simple, fair, and transparent; 35 and (2)
how USDA can provide better customer
service and remove unintended barriers
to Program participation.36 In response,
commenters expressed a need for
increased flexibility for local Program
operators to plan wholesome menus that
entice children to participate and also
stated a desire for more consistency
across Child Nutrition Program
requirements. Commenters also
mentioned the importance of balancing
nutrition standards and children’s taste
preferences. Some commenters
expressed a desire to serve grain-based
desserts in the CACFP, which would
offer menu planners an additional
opportunity to incorporate whole grains
into foods that children like to eat.
Based on this stakeholder feedback and
in its continued commitment to
customer service, USDA seeks
comments on:
• Allowing up to 2 ounce equivalents
(oz. eq.) of grain-based desserts per
week in the CACFP (consistent with
requirements in SBP and NSLP); and/or
• Other approaches that would
permit grain-based desserts to credit
toward the grains requirement in
CACFP and support healthy nutrition
standards.
Summary of Flexibilities and Changes
Proposed by This Rule
In summary, the changes and
flexibilities proposed in this rule are the
following:

E:\FR\FM\23JAP3.SGM

23JAP3

4112

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
Area

Program

Current requirement

Proposed rule

Establish 5-year Administrative Review
Cycle & Targeted, Follow-up Reviews of
High-Risk SFAs.

SBP, NSLP ...............

All SFAs are reviewed on a 3-year cycle ...

Align Administrative Review and Food
Service Management Company Review
Cycles.

SBP, NSLP ...............

SFAs operating with a food service management company must be reviewed
once every 3 years.

Address Significant Performance Standard
1 Noncompliance Early in Review Cycle.

SBP, NSLP ...............

SFAs with significant performance standard 2 noncompliance must be reviewed
earlier in the administrative review cycle.

Allow Expanded Use of Third-Party Audits

SBP, NSLP ...............

State agencies may use recent and currently applicable findings from federally
required audit activity or from any Stateimposed audit requirements.

Allow Completion of Review Requirements
Outside of the Administrative Review.

SBP, NSLP, SMP,
FFVP 37.

State agencies cannot satisfy administrative review requirements by conducting
monitoring and oversight activities outside of the formal administrative review
process.

Provide Incentives to Invest in Integrity-Focused Process Improvements.

SBP, NSLP ...............

State agencies conduct administrative reviews to monitor compliance with Program requirements.

Omit the On-Site Breakfast Review in Extenuating Circumstances.

SBP ..........................

Add Flexibility to Completion of the Resource Management Module.

SBP, NSLP ...............

Set Consistent Fiscal Action for Repeated
Meal Pattern Violations.

SBP, NSLP ...............

State agencies must conduct on-site SBP
reviews of half of review sites that operate SBP.
State agencies must conduct an off-site
assessment of an SFA’s financial practices before the review of Resource
Management requirements.
State agencies must take fiscal action for
repeated violations for milk type and
vegetable subgroups.

Add Buy American to the General Areas of
the Administrative Review.

SBP, NSLP ...............

State agencies conduct an on-site review
of food components to check compliance
with Buy American provision, as specified in guidance, but not in regulations.

Facilitate the Service of Vegetable Subgroups in the NSLP.

NSLP ........................

SFAs must offer different amounts of five
vegetable subgroups identified in the Dietary Guidelines over the school week
(Dark Green, Red/Orange, Legumes,
Starchy, and Other).

Add Flexibility to Established Age/Grade
Groups.

SBP, NSLP ...............

Schools are required to offer meals that
meet requirements established for three
established age/grade groups (K–5, 6–8,
9–12).

Increase Flexibility to Offer Meats/Meat Alternates at Breakfast.

SBP ..........................

Schools may offer meats/meat alternates
at breakfast after the minimum daily
grains requirement is offered.

Flexibility in SBP Fruit Component .............

SBP ..........................

Remove Trans Fat Limit as a Dietary Specification.

SBP, NSLP, Competitive Foods.

Schools must offer 1 cup of fruit per day
and 5 cups of fruit per week. Students
may select 1⁄2 cup of fruit for a reimbursable meal under Offer versus Serve
(OVS).
Trans fats are prohibited in NSLP, SBP,
and competitive foods.

Change Performance-based Reimbursement (7 cents) Quarterly Report to an
Annual Report.

NSLP ........................

Update Meal Modifications for Disability
and Non-Disability Reasons.

SBP, NSLP, CACFP

Regulations impacted

Proposals to Simplify Monitoring
State agencies would be required to review SFAs once every 5 years, with
high-risk SFAs receiving additional oversight.
State agencies would be required to review SFAs operating with a food service
management company once every 5
years.
SFAs with significant performance standard 1 and/or performance standard 2
noncompliance would be reviewed earlier in the administrative review cycle.
State agencies also would be allowed to
use recent and applicable findings from
supplementary audit activities, requirements added to Federal or State audits
by local operators, or other third-party
audits initiated by SFAs or other local
entities.
State agencies would be allowed to satisfy
sections of the administrative review
through equivalent State monitoring or
oversight activities conducted outside of
the established administrative review
process.
Proposes a framework for waiving or bypassing certain administrative review requirements for State and/or local agencies that implement FNS-specified process improvements.
State agencies would be allowed to omit
the on-site SBP review in extenuating
circumstances.
State agencies would be allowed to assess
an SFA’s risk for noncompliance in Resource Management areas at any point
in the review process.
Proposal would allow State agencies discretion to take fiscal action for repeated
violations for milk type and vegetable
subgroups.
Proposal would add Buy American on-site
compliance check to the regulations
under general areas of the administrative review.

7 CFR 210.18(c).

7 CFR 210.19(a)(5).

7 CFR 210.18(e)(5).

7 CFR 210.18(f)(3).

7 CFR 210.18(f), (g), and (h).

7 CFR 210.18(f), (g), and (h).

7 CFR 210.18(g)(1)(ii), 7 CFR
210.18(g)(2)(i)(B).
7 CFR 210.18(h)(1).

7 CFR 210.18(l)(2).

7 CFR 210.18(h)(2).

jbell on DSKJLSW7X2PROD with PROPOSALS3

Proposals to Simplify Meal Service

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

PO 00000

States are required to submit a quarterly
report detailing the SFAs to receive the
performance-based 7 cents reimbursement.
Schools, institutions, and facilities are required to obtain a written statement from
a licensed physician to make meal substitutions for a child’s disability.

Frm 00020

Fmt 4701

Sfmt 4702

Proposal would allow SFAs to offer the
same amount of vegetables from all five
subgroups to all age/grade groups. It
would also allow legumes offered as a
meat alternate to count toward the
weekly legumes vegetable requirement.
Proposal would allow schools with unique
grade configurations to add or subtract a
grade on either or both ends of an established age/grade group. Also, schools
with unique grade configurations in
SFAs with fewer than 2,500 students
would have the option to use one (or
two) meal patterns for established age/
grade groups for all students.
Proposal would allow schools to offer a
meat/meat alternate or a grain at breakfast (or a combination of the two) with
no daily minimum grain requirement.
With State agency approval, schools serving SBP in a non-cafeteria setting would
be allowed to offer 1⁄2 cup fruit per day
(21⁄2 cups per week) as part of reimbursable breakfasts.
Proposal would remove USDA’s trans fat
prohibition effective July 1, 2021. The
Food & Drug Administration is removing
trans fats from the food supply.
Proposal would reduce the frequency of
the performance-based report from quarterly to annually.
Proposal would: ..........................................
Remove the term ‘‘special dietary needs,’’
which is encompassed in the expanded
definition of ‘‘disability’’.
Add a definition for ‘‘State licensed
healthcare professional’’.
Clarify that a medical statement is only required for accommodations that fall outside the meal patterns.

E:\FR\FM\23JAP3.SGM

23JAP3

7 CFR 210.10(c)(2)(iii), 7 CFR
210.10(m)(4)(ii).

7 CFR 210.10(c)(1), 7 CFR
210.10(m)(4),
7
CFR
220.8(c)(1),
7
CFR
220.8(m)(2).

7 CFR 220.8(c)(2).

7

CFR 220.8(c)(2),
220.8(m)(1).

7

CFR

7 CFR 210.10(f)(4), 7 CFR
210.11(g), 7 CFR 220.8(f)(4).

7 CFR 210.5(d)(2)(ii).

7

CFR
210.2,
7
CFR
210.10(d)(3),
7
CFR
210.10(m), 7 CFR 226.2, 7
CFR 226.20(g).

4113

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
Area

Program

Current requirement

Proposed rule

Regulations impacted

Expand Potable Water Requirement to Include Calorie-free, Noncarbonated, Naturally Flavored Water.

SBP, NSLP ...............

Schools are required to make unflavored,
potable water available and accessible
without restriction to children at no
charge in the place(s) where lunches are
served during the meal service.

Proposal would permit schools to offer naturally flavored water to meet the potable
water requirement.

7 CFR 210.10(a)(1)(i), 7 CFR
220.8(a)(1).

Extend the Entre´e Exemption Timeframe ...

Competitive Foods ...

Expand Flexibility for the Sale of CalorieFree, Naturally Flavored Waters During
the School Day to All Age/Grade Groups.

Competitive Foods ...

Currently, an entre´e is exempt from competitive food standards the day offered
on the NSLP and SBP menu and the
day after.
Calorie-free, flavored waters, with or without carbonation may be sold to students
in grades 9–12.

Add Flexibility to State Administrative Expense (SAE) Funds.

SBP, NSLP, SMP,
CACFP, SFSP 38.

Correct NSLP Afterschool Snack Eligibility
Erroneous Citations & Definition of
‘‘child’’.
Expand List of Outlying Areas .....................

NSLP ........................

Change Vitamin A and Vitamin D Units for
Fluid Milk Substitutions.

SBP, NSLP, SMP,
CACFP.

Substituting Vegetables for Fruits at Breakfast.

SBP ..........................

SFAs choosing to offer a vegetable in
place of a fruit must ensure that at least
two cups per week are from the dark
green, red/orange, legumes, or ‘‘other
vegetables’’ subgroups 39.

Definition of Entre´e and Expanding Entre´e
Exemption to All SBP/NSLP Foods.

Competitive Foods ...

Entrees are required to be whole grainrich. Entrees are exempt from competitive foods standards on the day offered
on the SBP/NSLP menu and one day
after.

Transparency for Administrative Review
Results.

SBP, NSLP ...............

Grain-based Desserts in the Child and
Adult Care Food Program.

CACFP .....................

State agencies must report the final results
of an administrative review to the public
(in an accessible, easily understood
manner) no later than 30 days after the
State agency provides the results to the
SFA.
Grain-based desserts do not count toward
the Grains requirement.

Proposals to Simplify Competitive Foods
Would exempt entre´es from standards the
day offered on the SBP and NSLP menu
and for two days after.

7 CFR 210.11(c)(3).

Proposal would allow the sale of caloriefree, flavored waters, with or without
carbonation to students in all grades.

7 CFR 210.11(l).

Clarifications, Updates, & Technical Corrections

SBP, NSLP ...............

States are required to return any unexpended SAE funds at the end of the fiscal year following the fiscal year for
which the funds are awarded.
7 CFR 210 contains erroneous citations related to NSLP Afterschool Snack site eligibility. Definition of ‘‘child’’ is outdated.
Certain outlying areas are permitted to
serve vegetables such as yams, plantains, or sweet potatoes to meet the
grains component.
Fluid milk substitutes must contain at least
500 International Units (IUs) of vitamin A
and 100 IUs of vitamin D per 8 fluid
ounces.

Changes ‘‘unexpended’’ to ‘‘unobligated’’
to allow States more flexibility to spend
SAE funds.

7 CFR 235.5(e)(2).

Corrects erroneous citations and definition

7

Adds Guam and Hawaii to the list of outlying areas permitted to serve vegetables such as yams, plantains, or sweet
potatoes to meet the grains component.
The required levels of vitamin A and D are
unchanged. Consistent with FDA labeling changes for vitamins A and D, the
proposal would change the units of the
vitamin A and vitamin D requirements for
fluid milk substitutes to 150 mcg and 2.5
mcg, respectively, per 8 fluid ounces.

CFR
210.2,
7
CFR
210.4(b)(3), 7 CFR 210.7(e),
7 CFR 210.9(c).
7 CFR 210.10(c)(3), 7 CFR
220.8(c)(3).

7 CFR 210.10(d)(3), 7 CFR
215.7a(b),
7
CFR
226.20(g)(3).

Seeking Public Input on Specific Items (no changes proposed)

IV. Timeline and Instructions to
Commenters

jbell on DSKJLSW7X2PROD with PROPOSALS3

Comments from State agencies, local
Program operators, food industry,
nutrition advocates, parents, and other
stakeholders on the day-to-day impact
37 SMP = Special Milk Program, FFVP = Fresh
Fruit and Vegetable Program.
38 SMP = Special Milk Program; CACFP = Child
and Adult Care Food Program; SFSP = Summer
Food Service Program.
39 Through September 30, 2019, the Consolidated
Appropriations Act, 2019 (Pub. L. 116–6) permitted
any vegetable offered, including potatoes and other
starchy vegetables, to credit in place of fruit without
including vegetables from the designated subgroups
in the weekly menus. The Further Consolidated
Appropriations Act, 2020 (Pub. L. 116–94), enacted
December 20, 2019, extends this flexibility through
June 30, 2021.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

Proposal requests public comments on
whether or not to permanently allow
SFAs to credit any vegetable offered, including potatoes and other starchy vegetables, in place of fruit without including
vegetables from the designated subgroups in the weekly menus.
Proposal requests public comments on
whether the whole grain-rich/whole grain
as a first ingredient requirement should
be removed from the definition of
‘‘Entre´e’’
included
in
7
CFR
210.11(a)(3)(i), and whether or not to extend the competitive food entre´e exemption to all food items offered in SBP and
NSLP reimbursable meals.
Proposal requests public comments on
how to simplify this transparency requirement, including the process of posting results, the summary content, and
the 30 day timeframe.

7 CFR 220.8(c).

Proposal requests comments on permitting
grain-based desserts: up to 2 oz. eq. per
week (same as SBP and NSLP) or other
approaches.

7 CFR 226.20.

of these proposals will be extremely
helpful in the development of a final
rule. USDA will carefully consider all
relevant comments submitted during the
60-day comment period for this rule,
and intends to issue a final rule
promptly.
Procedural Matters
Economic Summary
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,

PO 00000

Frm 00021

Fmt 4701

Sfmt 4702

7 CFR 210.11(a)(3), 7 CFR
210.11(c)(3).

7 CFR 210.18(m).

environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility.
This proposed rule is significant and
was reviewed by the Office of
Management and Budget (OMB) in
conformance with Executive Order
12866. This rule proposes a number of
changes to simplify the monitoring and
meal service requirements for the
National School Lunch Program, School
Breakfast Program, and Child and Adult
Care Food Program. The proposed
changes are a direct result of operator
feedback, and intend to provide State

E:\FR\FM\23JAP3.SGM

23JAP3

4114

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

jbell on DSKJLSW7X2PROD with PROPOSALS3

and local Program operators necessary
flexibilities to ensure they can operate
the programs effectively and efficiently.
While there are a number of proposed
changes in this rule, the increase in
administrative review cycle length from
reviewing all SFAs once every 3 years
to once every 5 years and a reduction in
the frequency of the reporting
performance-based certification
requirement impact burden hours and
result in minimal administrative
savings. Existing NSLP requirements for
recordkeeping and reporting do not
reflect the current 3-year administrative
cycle or the reporting requirement for
the performance-based reporting. These
errors will be corrected during the
scheduled renewal process in fall 2019.
The reduction in burden hours in this
rule are based on the estimated
corrected hours. This rule is estimated
to reduce school meal administrative
burden by 171,372 hours, which is
$11.4 million in annualized savings at a
7 percent discount rate, discounted to a
2016 equivalent, over a perpetual time
horizon.
The proposed rule includes a detailed
table that lists each change. This
economic summary follows the order of
this table to discuss each proposed
change.
Proposals To Simplify Monitoring
Requirements
USDA published a final rule in 2012
to establish a 3-year monitoring cycle
for SFAs. This rule merged the prior
requirements to conduct a Coordinated
Review Effort on a 5-year cycle and the
School Meals Initiative, a nutritional
assessment of meals, on a separate 3year cycle. USDA published regulations
in 2016 that created the administrative
review, which is a unified review
process that includes both the
operational and nutritional assessment
in one process that follows a 3-year
review cycle. Increasing the review
frequency—from once every 5 years to
once every 3 years—along with the
introduction of a more comprehensive
and unified review resulted in a number
of challenges. Some State agencies had
difficulty completing the new
administrative review process within
the 3-year cycle, while also providing
technical assistance and maintaining
effective and efficient program
operations. Some State agencies needed
to hire additional staff to complete
reviews more frequently; however, not
all State agencies could do this due to
financial constraints.
These challenges and resource
constraints resulted in USDA allowing
State agencies to submit waiver requests
to extend the administrative review

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

cycle to 4 or 5 years instead of 3 years.
The changes proposed in this rule are to
alleviate monitoring burden to State and
local Program operators. The changes
are intended to streamline the review
process and target limited resources
toward SFAs most at-risk for
noncompliance. This proposed rule
responds to on-going concerns from
Program operators who are challenged
to fulfill oversight responsibilities.
Some of these changes are estimated to
have minimal impact on burden and the
associated administrative costs for
completing program monitoring
requirements.
5-Year Administrative Review Cycle
and Targeted, Follow-Up Reviews for
High-Risk SFAs
The transition from a 5-year cycle to
a 3-year cycle for the administrative
review process resulted in some State
agencies and SFAs struggling to
complete reviews and oversight
activities. USDA has received feedback
through a number of avenues regarding
the difficulties faced by State agencies.
The Child Nutrition Burden Study was
conducted in SY 2017–2018 in response
to a Congressional mandate in House
Report 114–531 to identify areas to
reduce burden in the Child Nutrition
Programs. This study collected data
through workgroups with State and
local Program operators, as well as a
survey from a census of all State
agencies and a nationally representative
sample of SFAs. One reoccurring theme
in this study, from both the State agency
and SFA perspectives, was the burden
associated with the 3-year
administrative review cycle. To comply
with the 3-year administrative review
requirements, some State agencies and
SFAs were sacrificing staff resources
needed for program administration,
including providing technical
assistance. State agencies face a number
of time and resource constraints, and
Program operators struggled to adopt the
new procedures and timeframes.
According to the Child Nutrition
Burden Study results, both State
agencies and SFAs reported
administrative reviews to be timeconsuming and resource intensive. The
top factors cited by State agency
respondents as contributing to
administrative review efforts were the
amount of information required (77
percent) and preparation time (73
percent). About two-thirds of State
agency respondents identified the
frequency of administrative reviews and
staff availability as key contributors to
the effort needed to conduct
administrative reviews. Time and
resource constraints disproportionately

PO 00000

Frm 00022

Fmt 4701

Sfmt 4702

affected smaller State agencies as they
were nearly twice as likely to cite staff
availability to participate in
administrative reviews as a burden
factor, compared to the very large States.
Both State respondents and SFA
workgroup participants noted that they
had to hire extra staff to prepare for and
conduct administrative reviews. One of
10 key considerations in the report is to
implement a risk-based administrative
review process where low-risk SFAs are
reviewed less frequently than high-risk
SFAs.40
This proposed rule would provide
State agencies with the ability to
conduct a comprehensive NSLP and
SBP review of each SFA at least once
during a 5-year cycle, instead of once
during a 3-year cycle. State agencies
would be required to identify high-risk
SFAs for additional oversight. SFAs
designated as high-risk must receive a
follow-up review within two years of
being identified as high-risk. State
agencies may still opt to review SFAs
more frequently.
Determining the high-risk designation
is still under consideration but USDA
anticipates factoring in prior
administrative review findings,
operational history of SFA (to include
staff experience), and SFA
characteristics such as funding level,
type of meal counting and claiming
system, and point-of-service system.
The follow-up review process
proposed in this rule is not new to Child
Nutrition Program monitoring. Prior to
the implementation of the current
administrative review process, the
Coordinated Review Effort included
follow-up reviews. The Coordinated
Review Effort procedures required
States to conduct follow-up reviews of
all large, and at least 25 percent of all
small, SFAs when certain review
thresholds were exceeded. State
agencies were encouraged to conduct
the follow-up review in the same school
year as the coordinated review. While
similar in structure, the proposed
addition of follow-up reviews in highrisk SFAs would likely be different from
follow-up reviews in the prior
Coordinate Review Effort. The
administrative review process is now a
more comprehensive review, and the
high-risk criteria and follow-up reviews
will likely differ in selection and scope
from the Coordinated Review Effort.
It is important to assess the impact of
returning to a 5-year cycle. Fewer SFAs
would be reviewed each year, resulting
in the potential for program error to
continue for longer. Table 1 shows the
40 https://fns-prod.azureedge.net/sites/default/
files/resource-files/CN-Reducing%20Burden.pdf.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
projected number of annual reviews that
would be conducted using a 5-year
cycle and the number of annual reviews
that would be conducted using a 3-year

cycle. It also provides the number of
actual reviews conducted in SY 2016–
2017 41 when 48 States were on a 3-year
cycle. Six States were on either a 4 or

4115

5-year cycle (due to receiving a waiver
to extend the review cycle) in SY 2016–
2017.

TABLE 1—NUMBER OF ANNUAL REVIEWS CONDUCTED
Total number of SFAs in
SY 2016–2017

Number of SFAs
reviewed during
5-year cycle

Number of SFAs
reviewed during
3-year cycle

Number of SFAs
reviewed
SY 2016–2017

19,240 ........................................................................................................................

3,848

6,413

5,537

If all State agencies use a 5-year cycle,
and conduct an equal number of
reviews each year, approximately 40
percent (or 2,565) fewer SFAs would be
reviewed each year (compared to a 3year cycle). In SY 2016–2017 due to the
review cycle flexibilities (that currently
remain in effect), 5,537 SFAs were
actually reviewed. This is 876 fewer
reviewed SFAs than the expected 6,413
SFAs receiving annual reviews on a 3year cycle. These figures do not take
into account follow-up reviews
proposed in this rule.
To better understand the impact of the
proposed follow-up review, the data
from the SY 2016–2017 review year was
analyzed to estimate the potential
number of follow-up reviews that may
have been conducted, if the proposed

follow-up reviews were implemented.
The criteria used in this simulation only
focuses on the results of the
administrative reviews, and does not
account for other important criteria that
the State agency may identify or items
that may be identified through public
comments on this proposed rule.
To estimate the potential number of
follow-up reviews, reviewed SFAs were
grouped by the number of error flags
triggered during administrative reviews
in SY 2016–2017. SFAs with any
application errors (for example missing
child or household name or income
information) were assigned an error flag
for applications, the same process was
done for SFAs with certification benefit
issuance errors (for example, during a
review, a sampled student was

approved for free meals but was not
eligible). SFAs with a fiscal action
amount that was not disregarded were
assigned a fiscal action error flag. SFAs
were also assigned an error flag if they
triggered the risk flag for the resource
management errors (nonprofit school
food service account, Paid Lunch
Equity, revenue from nonprogram foods,
and indirect costs) or served meals
missing components.
The number of SFAs by type of error
flag is presented in Table 2. Similarly,
the number of SFAs reviewed by total
number of error flags is in Table 3. It is
important to note this analysis does not
consider the magnitude of a particular
error, just the presence of an error found
during an administrative review.

TABLE 2—NUMBER OF SFAS BY ERROR FLAG—SY 2016–2017 REVIEWS
Total SFAs
reviewed with data *

No error flags

Application
error flag

Certification
benefit error
flag

Fiscal action
taken flag

Resource
management
flag

Incomplete
meal error flag

4,224 ........................................................

103

1,070

661

347

3,668

3,162

* The total number of SFAs reviewed in SY 2016–2017 is less than the total in Table 1 above, due to USDA providing 13 State agencies the
flexibility to only report data for a percentage of total SFAs reviewed (due to resource constraints on State agencies).

TABLE 3—NUMBER OF REVIEWED SFAS BY COUNT OF ERROR FLAGS

Number of error flags

jbell on DSKJLSW7X2PROD with PROPOSALS3

0
1
2
3
4
5

Count of SFAs

...................................................................................................................................................................
...................................................................................................................................................................
...................................................................................................................................................................
...................................................................................................................................................................
...................................................................................................................................................................
...................................................................................................................................................................

Percent of
SFAs
reviewed by
number of flags
(percent)

103
874
2,173
678
326
70

2.4
20.7
51.4
16.1
7.7
1.7

The top two most common flags
assigned were (1) SFAs flagged for
triggering resource management risk
criteria (and, thereby, triggering a
comprehensive resource management
review), followed by (2) meals served
missing one or more components. The

resource management error flag does not
necessarily mean there is
noncompliance; it only means that the
SFA was triggered to require a
comprehensive review based on an offsite risk assessment. The SFA may not
actually be in error. Table 3 shows the

total number of SFAs by total count of
flags. About 9.4 percent of SFAs were
flagged for four or more flags and 2.4
percent had zero flags assigned. The
vast majority of SFAs received two or
fewer flags. The group of SFAs with
zero flags may be over-representing one

41 This is the first complete year of administrative
data USDA collected on the administrative review

process. States’ report data lagged one year,

meaning review results for SY 2016–2017 were
reported in SY 2017–2018.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

PO 00000

Frm 00023

Fmt 4701

Sfmt 4702

E:\FR\FM\23JAP3.SGM

23JAP3

4116

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

State that has about 40 percent of the
SFAs with no flags. For the groups of
SFAs with one or more flags there were
no discernable patterns with respect to
State and SFA size.
To estimate the number of potential
follow-up reviews that would be
required as proposed in this rule, the
total number of SFAs with at least three
flags could be assumed to be SFAs with
errors across almost all, if not all, major
review categories and, therefore, in need
of a follow-up review. This would mean
about 25 percent of the reviewed SFAs
would be triggered for a targeted followup review in a given year, which would
add about 962 total follow-up reviews in
a year across the nation.
It is likely that, for some SFAs, it may
take more than one follow-up review to
remedy major or systemic issues.
Assuming that about 15 percent of SFAs
with follow-up reviews would require
additional technical assistance through
a site visit or validation measure, this
would add about 144 more review
activities in select SFAs.42
The total number of estimated SFAs
receiving annual reviews under this
proposal including the targeted followup reviews and other review activities

would be about 4,954 SFAs, which is
about 26 percent of all SFAs in the
nation. This would mean around 1,459
(22 percent) fewer SFAs would be
reviewed each year across the nation,
than if all State agencies were using a
3-year cycle (where State agencies
review about 33 percent of SFAs each
year). This estimated number of followup review is on average, across the
nation, in a given year. The actual
number of follow-up reviews will vary
by individual State agencies. As
systemic and significant issues are
identified and resolved through the
administrative review process, the
number of follow-up reviews may
decrease over time.
Regarding the number of SFAs
reviewed with little to no error; there
were 23 percent with zero or one flag.
Among SFAs with two flags, almost all
were errors requiring corrective action
only, with no fiscal action taken. This
means there is likely little risk in
allowing more time between reviews for
these SFAs. However, moving to a 5year cycle would delay the
identification of any potential new
errors in low-risk SFAs for two
additional years.

There would be about 1,459 fewer
annual reviews conducted under this
proposed change, leaving the potential
for issues to continue for additional
years. However, the targeted nature of
the follow-up review, in both selection
and scope, would aim to redirect
resources to fixing program issues and
providing the necessary technical
assistance that is currently difficult to
do for some resource-strapped States
under the current 3-year cycle.
An overall decrease in burden hours
(¥171,330 hours 43) is expected for
moving from a 3-year to a 5-year review
cycle. The targeted nature of the followup reviews are intended to be more
directly focused on noncompliance and
high-risk areas, therefore less
burdensome than the initial review.
This aids in streamlining the review
procedures while balancing the need to
quickly resolve program errors and the
importance of addressing
noncompliance in high-risk SFAs. This
is intended to help State and local
operators focus resources toward
technical assistance and technology to
improve Program operations. These
changes are anticipated to save $60
million over 5 years.

TABLE 3—ANNUAL AND 5-YEAR SAVINGS—OPTIONAL 5-YEAR ADMINISTRATIVE REVIEW CYCLE & TARGETED, FOLLOW-UP
REVIEWS FOR HIGH-RISK SFAS
[Millions]
FY 2020

FY 2021

FY 2022

FY 2023

FY 2024

5-Year

$(11.16)

$(11.56)

$(11.98)

$(12.41)

$(12.86)

$(59.97)

jbell on DSKJLSW7X2PROD with PROPOSALS3

Align Administrative Review and Food
Service Management Company Review
Cycles
This rule proposes to change review
of SFAs that contract with a Food
Service Management Company to a 5year review cycle. Currently SFAs with
Food Service Management Companies
receive a review once every 3 years.
This rule proposes giving State agencies
the ability to align Food Service
Management Company reviews with the
administrative review cycle and
streamline oversight activities. About 20
percent of SFAs utilize a Food Service
Management Company for some or all of
their meal service.44 This proposal will
likely alleviate burden in State agencies
with SFAs using Food Service
42 This is assuming the 70 SFAs with five error
flags plus 85 of the SFAs with four error flags
including the fiscal action taken error flag.
43 This total only includes the reduction due to
the change in the administrative review and does
not include the reduction of 42 reporting hours

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

Management Companies due to the
alignment in review cycles.
Address Significant Performance
Standard 1 Noncompliance Early in
Review Cycle
This proposed change places the same
emphasis on noncompliance with meal
pattern requirements and other review
areas. SFAs with significant
noncompliance issues in Performance
Standard 1, which includes certification
determinations, may also be reviewed
early. Currently, SFAs with meal pattern
issues were to be prioritized in the
review cycle. This change would require
State agencies to review SFAs with
significant noncompliance issues across
all program areas early in the cycle. This
change seeks to increase overall
program integrity by allowing State
associated with decreasing the frequency of the
performance based reporting requirement.
44 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 1: School Meal Program Operations and

PO 00000

Frm 00024

Fmt 4701

Sfmt 4702

agencies to apply local knowledge to
prioritize the SFA review order. There
are minimal impacts to program costs
with this change. However, prioritizing
SFAs with significant noncompliance
issues of all types may result in earlier
identification of program errors, which
may offset some of the delay in
identifying program error due to
changing to a 5-year administrative
review cycle.
Allow Expanded Use of Third-Party
Audits
This change would provide States the
flexibility to use State/local or thirdparty audits to count for comparable
sections of the administrative review.
This proposal intends to take advantage
of other relevant audit activities, some
of which require specialized experience
School Nutrition Environments by Sarah Forrestal,
Charlotte Cabili, Dallas Dotter, Christopher W.
Logan, Patricia Connor, Maria Boyle, Ayseha Enver,
and Hiren Nissar. Project Officer: John Endahl.
Alexandria, VA: April 2019.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
to complete, to streamline program
operations and minimize monitoring
burden. This change may result in
minimal administrative savings for State
agencies that are able to utilize audits
for comparable sections of the
administrative review. Due to the
variation in how State agencies may
apply this proposed change, these
savings cannot be quantified.
Allow Completion of Review
Requirements Outside of the
Administrative Review
This proposal would allow State
agencies to use review activities
conducted outside the administrative
review to fulfill the relevant areas of the
administrative reviews. Some State
agencies proactively conduct technical
assistance and review activities
throughout the year to ensure
compliance across SFAs. This change
would allow these activities, if
determined to be sufficient by USDA, to
count toward the applicable areas of the
administrative review. This is intended
to reduce duplicative Program oversight
efforts. This proposal would allow the
use of existing information to fulfill
administrative review requirements.
There may be minimal administrative
savings in State agencies that are able to
utilize activities completed outside of
review to satisfy administrative review
requirements. Due to the wide variation
in which State agencies may apply this
proposed change, program impacts
cannot be quantified.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Provide Incentives To Invest in
Integrity-Focused Process Improvements
This proposed change introduces a
new concept to encourage program
integrity-focused reforms. The proposed
framework would include optional
reforms that State agencies and SFAs
can adopt in exchange for alleviating
existing administrative review
requirements. This incentive-based
approach is intended to encourage
States and SFAs to adopt research-based
approaches to directly reduce improper
payments. This proposal provides a new
framework for redirecting program
resources toward solving Program
integrity challenges. The State and local
investments made under this proposal
aim to improve and streamline program
integrity efforts. There is no immediate
impact to Program costs with this
proposal because existing program
funds are used and impact on Program
integrity is unknown. As new integrity
challenges arise and solutions
determined to impact improper
payments are implemented, an impact
on Program cost is anticipated; however,

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

the impact cannot be quantified at this
time.
Omit the On-Site Breakfast Review in
Extenuating Circumstances
The administrative review requires an
on-site review of the SBP. The review of
SBP is imperative to ensure compliance
with Program requirements. Current
procedures require on-site review of the
SBP in half of the sites selected for
review that offer the SBP. This
requirement was established at half of
sites to reduce the burden associated
with reviewing the SBP in all sites.
Some SFAs still struggle to review half
of the SBP sites. These challenges are
unique to certain States with SFAs in
remote areas with limited transportation
and lodging options. The proposed
change would allow States with
extenuating circumstances to omit the
on-site review and use other existing
processes to review the SBP. This rule
requests comments on identifying areas
of the on-site SBP review that cannot be
met during the review of the NSLP, risks
to Program integrity, challenges
encountered by State agencies and
SFAs, and various tools available that
could be used to review the SBP. USDA
will consider public comments to this
proposed rule to inform guidance on if/
how this proposed change will be
implemented. Pending more
information from the comment process,
impacts to Program costs cannot be
estimated at this time.
Add Flexibility to Resource
Management Review
This proposed change is in response
to feedback received by USDA on
concerns about the off-site assessment of
the Resource Management module. The
current process requires an off-site
resource management assessment,
conducted at least four weeks prior to
the on-site administrative review, to
identify how many SFAs need a
comprehensive review. State agencies
voiced concerns that evaluating the
financial health of the nonprofit school
food service account can be challenging
to complete off-site, depending on State
agency procedures. State agencies also
have flexibility to conduct the
comprehensive Resource Management
review off-site, providing more
discretion on how this financial
oversight is executed.
In the SY 2016–2017 review dataset,
87 percent of the reviewed SFAs
triggered a Resource Management risk
flag requiring a comprehensive review.
Based on the feedback received from
States, some of these SFAs may have
been identified as at risk due to the
complications of conducting the

PO 00000

Frm 00025

Fmt 4701

Sfmt 4702

4117

assessment off-site within the proper
timeframes. Ensuring Program integrity
is imperative; however, if the current
off-site assessment does not accurately
reflect the SFA operations once the onsite review is conducted, the result is
undue burden and the misdirection of
important Program resources.
This proposed change would provide
State agencies the flexibility to conduct
the Resource Management portion of the
review in a way that makes the most
operational sense for the State agency.
This does not change the requirement
that State agencies must conduct as
assessment of the SFA’s nonprofit
school food service account following
the administrative review procedures.
This proposed change would allow
State agencies the flexibility to conduct
the Resource Management module at
any point in the review process,
including the discretion to conduct the
risk assessment and/or the
comprehensive review off- or on-site.
There are negligible impacts to Program
costs associated with this proposed
change.
Set Consistent Fiscal Action for
Repeated Meal Pattern Violations
This proposal aligns fiscal action
requirements for repeated violations
concerning milk type and vegetable
subgroup requirements to increase
consistency and reduce confusion.
Currently, State agencies must take
fiscal action for missing food
components and for repeated violations
of milk type and vegetable subgroup
requirements. State agencies may take
fiscal action for repeated violations
concerning food quantities, whole grainrich foods, and dietary specifications
(calories, saturated fat, trans fat, and
sodium). This proposal would allow
State discretion for fiscal action for
repeated violations for milk type and
vegetable subgroup requirements to be
consistent with the requirements for
food quantities, whole grain-rich foods,
and dietary specifications.
In this instance, students are still
receiving the correct food components,
just not the specific type of food
component that fully meets the meal
standards. State agencies are in the best
position to use discretion to determine
an appropriate course of action for
repeated violations of this nature. Fiscal
action is still required for meals missing
components. This proposed change
would allow State discretion and align
requirements with similar intent. There
are negligible impacts to program costs
with this proposed change.

E:\FR\FM\23JAP3.SGM

23JAP3

4118

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

Add Buy American to General Areas of
Administrative Review
This proposed change would add the
Buy American provisions to the
regulations that list the general areas of
review. Currently, the Buy American
provision review is specified in the FNS
Administrative Review Manual, but it is
not included in the general areas of
review listed at § 210.18(h)(2). This
proposed change aligns the regulations
with guidance and clarifies existing
monitoring requirements. There are no
program cost impacts to this proposed
change.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Simplifying Meal Service
The following section proposes a
number of changes to facilitate school
meals service operations for local
Program operators. These proposed
changes are customer service-focused
and intended to simplify program
procedures and requirements to address
existing challenges. The proposed
changes do not significantly affect
program costs, but rather allow State
and local Program operators to focus
critical resources to ensure sustained
meal service success. There is a small
reduction in burden due to changing the
reporting frequency (of a report on the
status of SFA compliance with the meal
standards) from quarterly to annually.
Facilitate the Service of Vegetable
Subgroups in the NSLP
The specific proposed changes in this
section are intended to reduce operator
challenges with two areas of the
vegetable subgroup requirements. The
proposed changes would: (1) For all age/
grade groups, change the weekly
minimums for all subgroups to 1⁄2 cup;
and (2) allow legumes offered as a meat
alternate to simultaneously meet the
weekly legumes vegetable subgroup
requirement. The overall daily and
weekly vegetable quantity requirements
remain intact across all age/grade
groups.
As stated in the preamble, these
flexibilities are proposed to assist
program operators struggling with
different quantity requirements across
subgroups, and challenges with meeting
the legumes subgroup requirement.45
Between 92 and 95 percent of weekly
menus met the quantity requirements
for dark green vegetables, red/orange
vegetables, starchy vegetables, and
45 Due

to high protein content, menu planners
may offer legumes as a meat alternate or a vegetable,
but not both in the same meal. This rule proposes
to allow menu planners that offer legumes as a meat
alternate to credit those same legumes toward the
weekly legumes subgroup requirement, without
reducing the total amount of vegetables that
students are offered daily or weekly.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

‘‘other’’ vegetables. About 80 percent of
weekly menus met the quantity
requirement for legumes.
While the vast majority of menus
were meeting the weekly quantity
requirements for each of the vegetable
subgroups (aside from legumes), offering
enough vegetables to satisfy the overall
weekly quantity requirement proved
more difficult. Nearly 80 percent of
weekly lunch menus met the quantity
requirement for vegetables overall.46
The proposed changes would lower the
requirement for the red/orange vegetable
subgroup for all age grade groups to 1⁄2
cup and the requirement for the ‘‘other’’
vegetable subgroup to 1⁄2 cup for the 9–
12 age grade group.47 This flexibility
would still ensure students are exposed
to all vegetable subgroups over a school
week, but seeks to eliminate confusion
caused by requiring different quantities
of different vegetable subgroups for
different age/grade groups. Lower
amounts of vegetables required from
some subgroups would give menu
planners more space to offer additional
vegetables that students prefer to meet
daily and weekly vegetables
requirements (which remain unchanged
from the original 2012 meal standards).
The ability to offer more vegetables that
students prefer may result in lower food
waste. About 31 percent of vegetables
served were wasted according to a study
conducted in SY 2014–2015 and this
did not vary much by subgroup with the
exception of starchy vegetables (e.g.,
white potatoes, corn, green peas).
Starchy vegetables were wasted slightly
less at about 25 percent compared to
around 30 percent for the other
vegetable subgroups.48 This proposed
change would allow any one subgroup
46 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School
Meals by Elizabeth Gearan, Mary Kay Fox,
Katherine Niland, Dallas Dotter, Liana Washburn,
Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April
2019.
47 Current requirement for red/orange for K–5 and
6–8 is 3⁄4 cup. Current requirement for 9–12 for red/
orange is 11⁄4 cups and 3⁄4 cup for other vegetables.
The Dietary Guidelines for Americans group
vegetables into categories based on similar nutrient
content. The Other vegetable subgroup contains
vegetables (e.g., cabbage, green beans, onions,
mushrooms) that are not nutritionally similar
enough to fit into one of the already named
subgroups.
48 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 4: Student Participation, Satisfaction, Plate
Waste, and Dietary Intakes by Mary Kay Fox,
Elizabeth Gearan, Charlotte Cabili, Dallas Dotter,
Katherine Niland, Liana Washburn, Nora Paxton,
Lauren Olsho, Lindsay LeClair, and Vinh Tran.
Project Officer: John Endahl. Alexandria, VA: April
2019.

PO 00000

Frm 00026

Fmt 4701

Sfmt 4702

to make up one-third to one-half of the
weekly requirement of vegetables
offered; therefore, children could be
offered less vegetable variety.
This proposed change is not expected
to impact program costs as the total
vegetable quantity requirements for
daily and weekly remain unchanged.
This proposal allows local Program
operators more flexibility to include in
their menus vegetables that align with
student acceptability.
Compared to other vegetable
subgroups, the legume vegetable
subgroup requirement proved to be
more difficult to meet. Some of this
difficulty may be explained by current
requirements: Beans may credit as a
vegetable or a meat alternate, but not
both in the same meal (i.e., menu
planners cannot ‘‘double-credit’’ beans
to meet both the vegetable and meat/
meat alternate requirement). Nearly all
(99 percent) daily lunch menus
included one or more vegetables that
were not part of a combination entre´e or
an entre´e salad bar. Most daily lunch
menus (84 percent) included cooked
vegetables. Beans and peas (legumes)
were the second most common cooked
vegetable (second to starchy) not served
as part of a combination entre´e with 23
percent of all daily lunch menus
offering legumes (including black, baked
beans, and other beans—such as white
beans, chickpeas, and hummus—as well
as pinto and kidney beans).
However, legumes are often an
ingredient in combination entre´es where
the meat/meat alternate component is
typically available especially in
Mexican-style entre´es. These type of
entre´es are common in lunch menus,
especially in high schools with about 25
percent of daily menus including a
Mexican-style entre´e.49 About 17
percent of daily lunch menus had an
‘‘other’’ protein credited as a meat
alternate. This was primarily cheese, but
legumes were also included in this
group. Children will still benefit from
the array of essential nutrients legumes
offer, including protein and fiber,
regardless of how legumes credit toward
vegetable or meat alternate
requirements. This proposed change
allows legumes that are offered as a
meat alternate to simultaneously meet
the weekly legumes requirement. This
aims to help local Program operators
49 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School
Meals by Elizabeth Gearan, Mary Kay Fox,
Katherine Niland, Dallas Dotter, Liana Washburn,
Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April
2019.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
meet the weekly legumes requirement.
The daily and weekly menus must still
meet minimum quantity requirements
for vegetables, which ensures this
change does not result in a reduction in
calories or vegetables, but rather allows
local Program operators the ability to
develop menus that better reflect
student preferences. The daily and
weekly vegetable and meat/meat
alternate quantities are unchanged.
There is negligible impact to program
costs associated with this proposed
change.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Add Flexibility to Established Age/
Grade Groups
This proposed change addresses
challenges in SFAs that serve children
in multiple age/grade groups. Currently,
schools are required to serve an ageappropriate meal pattern—for grades K–
5, 6–8, and/or 9–12—to all age/grade
groups in a school. The only exception
is the narrow overlap between K–5 and
6–8 age/grade group meal pattern
requirements: Because of overlapping
requirements, local Program operators
can use one meal pattern to plan menus
for students in grades K–8. The food
component requirements are the same,
but meals must meet the calorie and
sodium standards in the narrow overlap
between both age/grade groups.
The requirement to offer meals for
specific age/grade groups resulted in a
number of challenges for local Program
operators, especially for smaller SFAs
with unique grade configurations that
do not align with established age/grade
groups. A goal of the school meal
programs is to ensure students are
offered age-appropriate meals that meet
specific nutrient targets to optimize
growth and development. In SFAs of all
sizes (including SFAs with and without
schools serving multiple age/grade
groups), the School Nutrition Meal Cost
Study found that local Program directors
reported that it was a moderate
challenge (mid-way between ‘‘not a
challenge’’ and ‘‘a significant
challenge’’) to offer varying portion
sizes to different age/grade groups
within a school. About 30 percent
(about 27,500) of schools participating
in the National School Lunch Program
have unique age/grade group
combinations.50 The majority of these
50 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 1: School Meal Program Operations and
School Nutrition Environments by Sarah Forrestal,
Charlotte Cabili, Dallas Dotter, Christopher W.
Logan, Patricia

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

schools are likely in SFAs with 2,500 or
fewer students enrolled.51
The proposed changes in this rule
would: (1) Allow all schools with
multiple age/grade groups (in SFAs of
any size) to serve the established meal
patterns to a broader range of students.
This allows the addition or subtraction
of a grade on either or both ends of the
current meal pattern age/grade groups
(K–5, 6–8, and 9–12); and (2) Allow
schools with multiple or unique grade
configurations in small SFAs (with
2,500 students or fewer enrolled) to use
one or two meal patterns to plan meals
for all children.
The first proposed change would
allow schools in any SFA to serve one
meal pattern if the age/grade groups in
the school include one or two grades
from an established age/grade group.
This means that the K–5 meal pattern
could be expanded to serve students in
grades K–6; the 6–8 meal pattern could
be expanded to serve any students in
grades 5–9; and the 9–12 meal pattern
could be expanded to serve any students
in grades 8–12. For example, a school
serving students in grades K–6 could
either (1) use the existing K–8 meal
pattern age/grade group overlap, or (2)
exercise this proposed flexibility and
serve the K–5 meal pattern for all
children in the K–6 school by adding
one year (grade 6) to the upper end of
the established K–5 age/grade group.
Providing this flexibility seeks to
alleviate Program operator burden in
schools with students in grades close to
the next established meal pattern age/
grade group by giving them the ability
to serve one meal pattern to all students.
The second proposed change targets
schools with multiple or unique grade
groupings in smaller SFAs that serve
2,500 or fewer students. This change
would allow smaller SFAs, with
multiple or unique grade configurations,
to use one or two meal patterns to plan
meals for students in all grades. This
proposed change could impact about 23
percent of total schools (approximately
22,000 schools).52 However, some of
these schools that have successfully
implemented the existing age/grade
groups would likely continue with their
existing practices. In addition, schools
serving grades that overlap between
grades K–5 and grades 6–8 that have
been successful planning meals that
51 FNS administrative data show that about 80
percent of SFAs participating in the NSLP have
2,500 or less students enrolled in SY 2017–2018.
52 The difference in the number of schools that
may be impacted is the number of schools in large
SFAs including those that would not be able to
utilize the first flexibility (for example, a K–12
school in a SFA that has over 2,500 enrolled
students).

PO 00000

Frm 00027

Fmt 4701

Sfmt 4702

4119

meet the K–8 meal pattern overlap
could choose to continue that practice.
As stated in the preamble, meeting the
calorie requirements in school meal
offerings proved to be a challenge:
Overall, 41 percent of average weekly
lunch menus fell within the specified
calorie range (that is, they met both the
minimum and maximum calorie levels).
Elementary and middle schools were
more likely to offer meals above the
calorie maximums, while high schools
were more likely offer meals with too
few calories. Schools adopting these
proposed flexibilities are encouraged to
find solutions to offer older students
larger portions or additional choices to
meet their calorie and nutrient needs.
USDA is requesting public comments
on solutions to balance operational
constraints and student nutritional
needs. There may be some minimal
savings associated with streamlining
menus for some SFAs; however, we do
not anticipate significant impacts at this
time pending the public comments on
this proposed rule.
Increase Flexibility To Offer Meats/Meat
Alternates in SBP
This proposed change would allow
schools to offer meat/meat alternates or
grains interchangeably in the SBP.
Currently, schools may offer meat/meat
alternate foods in SBP only after one
ounce equivalent of grains is offered,
then meats/meat alternates may be
counted towards the grain component
requirements. Meats/meat alternates
may also be offered as ‘‘extra’’ foods that
do not credit toward meal pattern
requirements, but must meet the dietary
specifications for calories, saturated fat,
and sodium.
This proposed change would allow
Program operators to offer 1–2 ounce
equivalents of grains or meat/meat
alternates, or a combination of the two,
daily to meet the minimum of 7–9
ounce equivalents over the course of a
school week (amounts vary depending
on age/grade group). This would allow
Program operators the ability to use
grains and meat/meat alternates
interchangeably in the SBP. This
proposed change recognizes the need for
flexibility in SBP offerings. While the
meal pattern for SBP does not
specifically require meats/meat
alternates to be offered, meats/meat
alternates were included in nearly half
(48 percent) of all daily breakfast
menus.53
53 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School
Meals by Elizabeth Gearan, Mary Kay Fox,

E:\FR\FM\23JAP3.SGM

Continued

23JAP3

4120

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

This would not change the SBP meal
pattern, and Program operators may
continue to offer grains only in the SBP
(consistent with the current
requirements). The remaining SBP
requirements would not change under
this proposal. This change is intended
to allow Program operators local control
to develop SBP menus that include
meats/meat alternates without a
requirement to serve a minimum
amount of grains. This change is not
anticipated to impact Program costs, but
rather provide flexibility for local
Program operators to work within
current resources and student
preferences when planning SBP menus.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Allow Schools To Serve 1⁄2 Cup of Fruit
in Breakfasts Served in Non-Cafeteria
Settings
This proposed change would allow
schools that serve breakfast in noncafeteria settings to offer 1⁄2 cup of
fruit—consistent with the offer-vs-serve
(OVS) option in SBP—instead of
offering the full-required 1 cup of fruit.
In a cafeteria setting, students in schools
with OVS have the option to only take
1⁄2 cup of fruit. OVS is mandatory for
SBP and NSLP for high schools and
optional for middle and elementary
schools, however about 80 percent of
both middle and elementary schools use
the option. This practice helps control
food waste as the use of OVS at
breakfast was associated with lower
percentages of waste for calories (15
percent in OVS schools versus 19
percent in non-OVS schools) and fruits
(14 percent in OVS schools versus 23
percent in non-OVS schools).54
The cafeteria or other foodservice area
was the most common place where
students ate breakfast (82 percent of
schools). Many schools do use other
SBP models, often in non-cafeteria
settings. Breakfast in the classroom was
offered in more than a quarter of
elementary schools, which was more
frequent than middle and high schools.
However, pre-packaged ‘‘grab-and-go’’
breakfasts were offered more frequently
in high schools (21% of high schools)
than middle and elementary schools.
Due to cited concerns about students
Katherine Niland, Dallas Dotter, Liana Washburn,
Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April
2019.
54 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 4: Student Participation, Satisfaction, Plate
Waste, and Dietary Intakes by Mary Kay Fox,
Elizabeth Gearan, Charlotte Cabili, Dallas Dotter,
Katherine Niland, Liana Washburn, Nora Paxton,
Lauren Olsho, Lindsay LeClair, and Vinh Tran.
Project Officer: John Endahl. Alexandria, VA: April
2019.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

being offered sufficient calories,
especially older students,55 local
Program operators are encouraged to
have additional fruits, such as a basket
of whole fruits, available for students to
select additional fruit if desired. The
proposed change is not expected to
significantly impact program costs but
may result in minimal savings by
reducing the amount of fruit offered in
non-cafeteria SBP models.
Remove Synthetic Trans Fat Limit as a
Dietary Specification
This proposed change would
eliminate the requirement for SBP,
NSLP, and competitive foods to have
zero synthetic trans fat effective July 1,
2021.56 FDA regulations are removing
synthetic trans fat from the United
States food supply by January 1, 2021
and the requirement to monitor
synthetic trans fat in the school meal
programs will be unnecessary. This
proposed change would eliminate
additional regulations that are not
necessary after synthetic trans fat is no
longer in the food supply (January 1,
2021). This proposed change will align
Program regulations with the food
supply standards. There are negligible
impacts to program costs associated
with this change.
Change Performance-Based
Reimbursement Quarterly Report to an
Annual Report
This proposed change would reduce,
from quarterly to annually, the
frequency of a State agency report on
the status of SFAs certified for the
performance-based reimbursement. As
of February 2019, 99 percent of SFAs
are certified to receive the performancebased reimbursement. This change
responds to feedback from the Child
Nutrition Program Reducing Burden
Study: State agencies requested USDA
to review the reporting requirements
and determine areas to streamline
reporting.57 USDA currently receives a
count of the monthly number of lunches
receiving the performance-based
reimbursement on the Report of School
55 USDA’s School Nutrition and Meal Cost Study
found that, overall, more than half (56 percent) of
average weekly breakfast menus fell within the
specified calorie range (that is, they met both the
minimum and maximum calorie levels). While it
was more common for average weekly breakfast
menus across all school types to exceed the
maximum calorie level (36 percent overall),
approximately 18 percent of average weekly menus
for high schools offer too few calories
56 This restriction does not apply to naturally
occurring trans fats, which are present in meat and
dairy products.
57 https://fns-prod.azureedge.net/sites/default/
files/resource-files/CN-Reducing%20Burden.pdf.

PO 00000

Frm 00028

Fmt 4701

Sfmt 4702

Meal Operations (form FNS–10) from
States.58
The reduced frequency of the
quarterly certification report aims to
enable State and local Program
operators to direct resources to maintain
effective and efficient program
operations, while still providing USDA
the necessary information on SFA
certification. Along with the monthly
FNS–10 reporting, the annual update
will be sufficient for USDA to track the
status of SFA certification. This
proposed change slightly decreases the
burden hours associated with moving
the frequency of reporting from
quarterly to annually. This is a small
reduction of 42 annual burden hours,
which is about $3,000 annually.
Update Meal Accommodations for
Disability and Non-Disability Reasons
The proposed changes in this section
are intended to align current FNS
regulations with current statutory
requirements and do not change the
requirement that schools, institutions,
and facilities make reasonable
modifications for Program participants
with a disability that restricts their diet.
The proposed changes aim to make a
clear distinction between reasonable
modifications for disability requests and
variations for non-disability requests.
The proposal would also broaden who
is authorized to write medical
statements consistent with the
Department of Justice’s final rule that
determining an individual’s impairment
as a disability under ADA should not
demand extensive analysis. Schools,
institutions, and facilities are still
encouraged to meet Program
participants’ dietary preferences that are
not considered disabilities, which
includes those related to cultural,
ethical, Tribal, or religious preferences.
The proposed alignment of USDA
regulations with statutory requirements
and existing FNS guidance is not
expected to impact program costs, but
clarify procedures for Program
participants with disabilities that
restrict their diets.
Proposals To Simplify Foods Sold A La
Carte
Extend the Entre´e Exemption
Timeframes
The proposed change in this section
would address concerns from Program
operators regarding the number of days
schools are permitted to sell
reimbursement meal entre´es as a
competitive food (i.e., a` la carte). The
majority of schools had at least one
58 99.7% of lunches served in FY 2018 received
the performance-based reimbursement.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

jbell on DSKJLSW7X2PROD with PROPOSALS3

source of competitive foods available to
students. Availability of foods for a` la
carte purchase in the school cafeteria
during meal times was the most
common source (in 87 percent of
schools for lunch and 56 percent for
breakfast). About 40 percent of schools
offer entre´es (these are not separated out
by reimbursable meal entre´es and other
entre´es) as part of their competitive food
service. This practice was more
common in middle and high schools,
where over half of schools sold entre´es
as competitive foods. In elementary
schools, a little over a quarter sold
entre´es as competitive foods.59
There are some entre´es that meet the
reimbursable meal standards (as part of
the unitized, reimbursable meal); an
entre´e alone may not meet the
competitive food standards, which are
based on individual items. In these
cases, USDA, recognizing that foods
sold in reimbursable meals are typically
healthier due to the meal pattern
standards, allows these entre´es to be
sold on the same day as served as part
of the reimbursable meal, and the day
after to help use leftovers and reduce
waste. This proposed rule would extend
this flexibility by allowing SBP and
NSLP entre´es to be sold a` la carte on the
day offered in SBP and NSLP, and two
school days after (or for one additional
school day). The proposed change
promotes improved meal planning
flexibility and leftover usage.60 This
proposed change is intended to further
reduce waste and streamline operations
between the reimbursable meal service
and competitive food service. There are
minimal impacts to Program costs
associated with this change.
This proposed rule also requests
specific public comment on whether
SBP and NSLP side dishes that do not
meet the competitive foods standards
should also receive exemptions.
Currently only entre´es, as noted above,
are exempt with this proposed rule
extending the exemption for an
additional school day. USDA is not
proposing a change to the side dish
59 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 1: School Meal Program Operations and
School Nutrition Environments by Sarah Forrestal,
Charlotte Cabili, Dallas Dotter, Christopher W.
Logan, Patricia Connor, Maria Boyle, Ayseha Enver,
and Hiren Nissar. Project Officer: John Endahl.
Alexandria, VA: April 2019.
60 To ensure the food safety of food offered or sold
to children, schools must maintain a food safety
management system that includes Standard
Operating Procedures related to basic sanitation and
all Hazard Analysis and Critical Control Point
(HACCP) principles. Final rule. School Food Safety
Program Based on the Hazard Analysis and Critical
Control Point Principles (74 FR 66213, published
December 15, 2009).

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

requirements in this rule. However,
since the competitive food standards
have been in place for a period of time,
the Department is taking the
opportunity to solicit public input on
whether to extend the competitive food
entre´e exemption to all food items
offered as part of the reimbursable SBP
and NSLP meals. There are no impacts
to program costs at this time as the
proposed rule is only seeking public
comment on extending the competitive
foods exemptions to all menu items in
reimbursable meals.
Seeking Public Input on Whether To
` La
Remove the Requirement To Make A
Carte Entre´es Whole Grain-Rich
USDA is also taking this opportunity
to solicit public input on grain products
and the definition of entre´e. Currently
competitive food standards require that
entre´es that include grains, and are sold
a` la carte, must be whole grain-rich or
have whole grain as the first ingredient.
This requirement is not consistent with
the NSLP and SBP, where whole grainrich refers to products that contain at
least 50 percent whole grains and any
remaining grains must be enriched.
USDA is seeking public input to
determine if the whole grain-rich/whole
grain as a first ingredient requirement
should be removed from the definition
of entre´e for competitive foods. This
change would make the whole grains
requirement consistent between SBP/
NSLP and entre´es sold a` la carte as
competitive foods. At this point, USDA
is only seeking public input to
determine if this change is necessary,
especially in light of the proposal to
extend the exemption for SBP/NSLP
entre´es. There are no impacts to
program costs as USDA is not proposing
a change, but using this opportunity to
seek public input.
Expand Flexibility for Sale of CalorieFree, Flavored Waters to All Age/Grade
Groups
This proposed change would expand
the ability to sell calorie-free, naturallyflavored waters (with or without)
carbonation in middle and elementary
schools. Currently only high schools can
sell these products. Calorie-free/low
calorie, non-naturally flavored,
carbonated beverages (i.e., diet soft
drinks) may also be sold to high school
students. This proposed change is not
extending the ability to sell diet soft
drinks to middle and elementary school
students. This rule also proposes to
expand the potable water requirement to
permit schools to offer calorie-free,
naturally-flavored, noncarbonated
water. These waters would be required

PO 00000

Frm 00029

Fmt 4701

Sfmt 4702

4121

to meet the FDA’s definition of ‘‘natural
flavor or natural flavoring.’’
This rule proposes to allow local
Program operators to sell calorie-free,
naturally flavored waters (with or
without carbonation), in portions up to
20 ounces, to students in all age/grade
groups. This proposed change would
allow local Program operators the
flexibility to expand calorie-free
beverages to students who wish to
purchase only certain items and not an
entire school lunch. Competitive food
sales support the financial health of the
nonprofit school food service account
and can be used to cover costs of
operating the school meal programs.
Over 40 percent of schools offer bottled
water (includes plain, flavored, or
sparkling) for purchase a` la carte. This
varies quite a bit by school type, with
only 30 percent of elementary schools,
58 percent of middle schools, and 61
percent of high schools offering bottled
water for sale.61 This proposed change
would increase the types of beverages
local Program operators may offer a` la
carte. It may however, impact the
amount of milk purchased through a` la
carte sales; milk was the most
commonly offered a` la carte item at
lunch (73 percent of all schools offered
milk as an a` la carte item at lunch) 62
followed by water and 100 percent juice
(48 percent of all schools). This
proposal is not expected to impact
program costs but rather provide
flexibility for local Program operators to
offer calorie-free beverage choices to
students across all grades.
Local Program operators have also
requested flexibility to offer naturally
flavored noncarbonated water (e.g.,
water infused with fruit) to meet the
potable requirement. This rule proposes
to allow the flexibility to offer this type
of water to meet the requirement. This
proposal is not expected to increase
costs as Program operators will need to
work with existing resources to utilize
this flexibility. The addition of naturally
flavored potable water may encourage
water consumption but may impact the
61 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 1: School Meal Program Operations and
School Nutrition Environments by Sarah Forrestal,
Charlotte Cabili, Dallas Dotter, Christopher W.
Logan, Patricia Connor, Maria Boyle, Ayseha Enver,
and Hiren Nissar. Project Officer: John Endahl.
Alexandria, VA: April 2019.
62 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 1: School Meal Program Operations and
School Nutrition Environments by Sarah Forrestal,
Charlotte Cabili, Dallas Dotter, Christopher W.
Logan, Patricia Connor, Maria Boyle, Ayseha Enver,
and Hiren Nissar. Project Officer: John Endahl.
Alexandria, VA: April 2019.

E:\FR\FM\23JAP3.SGM

23JAP3

4122

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

consumption of milk if students choose
to consume water in lieu of milk.63
Clarifications, Updates, and Technical
Corrections
Add Flexibility to State Administrative
Expenses
This rule proposes to change the word
‘‘unexpended’’ to ‘‘unobligated’’ in the
regulations for the State Administrative
Expense (SAE) Funds. Currently States
must return to USDA any unexpended
SAE funds at the end of the fiscal year
following the fiscal year for which the
funds were awarded. This proposed
change would allow State agencies some
additional time to expend SAE funds
they have already obligated. There are
negligible impacts to program costs with
this proposed change as it is increasing
flexibility within the current funding
level.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Correct Afterschool Snack Eligibility
Erroneous Citations and Definition of
‘‘Child’’
The proposed changes in this section
would provide a technical correction to
three erroneous citations and correct a
definition relating to the NSLP
Afterschool snack service. The rule also
proposes to correct an error in the
definition of ‘‘child’’ to align with the
NSLA. Currently the regulatory
definition restricts snacks to children 12
years and younger, or in the case of
migrant workers and children with
disabilities not more than 15 years of
age. This rule proposes to modify the
definition of child to consistent with the
NSLA and clarify that children through
age 18 are eligible to receive snacks
through the NSLP Afterschool Snack
Service. These proposed changes are not
expected to impact program costs, as
children through age 18 are currently
eligible to receive snacks, but instead
provide clarification and correct
erroneous citations and definitions.
Add Guam and Hawaii to the List of
Outlying Areas Permitted To Serve
Vegetables Such as Yams, Plantains, or
Sweet Potatoes To Meet the Grains
Component
Regulations currently permit schools
in American Samoa, Puerto Rico and the
U.S. Virgin Islands to serve vegetables
such as yams, plantains, or sweet
potatoes to meet the grains component.
These foods are traditional foods and
may be easier to procure than grains in
outlying areas. This proposed change
includes Guam and Hawaii in the list of
63 The School Nutrition Meal Cost Study found
that milk consumption among school meal
participants declined to 66% in SY 2014–2015
compared to 75% in SY 2004–2005.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

outlying areas permitted to serve
vegetables such as yams, plantains, or
sweet potatoes to meet the grains
requirement. This proposed change is
not anticipated to impact program costs,
but provide local Program operators in
Guam and Hawaii the ability to develop
menus that include traditional foods
that align with local preferences.
Change Vitamin A and Vitamin D Units
for Fluid Milk Substitutions
This proposed change aligns USDA
regulations with the FDA published
final rule that changed the labeling
requirements for vitamin A and vitamin
D: both now must be listed in
micrograms (mcg) rather than
International Units (IUs). As a
conforming amendment, this rule
proposes to change the vitamin A
requirement for fluid milk substitutes
from 500 IUs to 150 mcg per 8 fluid
ounces. This rule also proposes to
change the units for the vitamin D
requirement for fluid milk substitutes
from 100 IUs to 2.5 mcg per 8 fluid
ounces. This proposed change aligns the
labeling requirements with the final
FDA rule, so there are negligible
impacts to program costs associated
with this change.
Proposed Rule Is Seeking Public Input
To Determine Change
USDA is seeking public comments to
determine any changes on the following
areas. Any impacts to program costs will
have to be assessed after public
comments are received.
Substituting Vegetables for Fruits at
Breakfast
This proposed rule requests public
comments on whether or not to
permanently allow SFAs to credit any
vegetable offered, including potatoes
and other starchy vegetables, in place of
fruit in the SBP, without including
vegetables from the specific subgroups
in the weekly menus.
Competitive Foods: Definition of Entre´e
and Expanding Entre´e Exemption to All
SBP/NSLP Foods
As described earlier, USDA is
soliciting public input on whether the
whole grain-rich/whole grain as a first
ingredient requirement should be
removed from the definition of ‘‘Entre´e’’
included in 7 CFR 210.11(a)(3)(i), and
whether or not to extend the
competitive food entre´e exemption to all
food items offered in SBP and NSLP
reimbursable meals.

PO 00000

Frm 00030

Fmt 4701

Sfmt 4702

Transparency for Administrative
Review Results
NSLA directs USDA to ensure that
State agencies report the final results of
administrative reviews to the public in
an accessible, easily understood
manner. To satisfy this statutory
requirement, State agencies must post a
summary of the most recent
administrative review results for each
SFA on the State agency’s public
website, and make a copy of the final
administrative review report available to
the public upon request. The summary
must be posted no later than 30 days
after the State agency provides the
results of the administrative review to
the SFA. This proposed rule requests
public comments on how to simplify
this transparency requirement,
including the process of posting results,
the summary content, and the 30-day
timeframe.
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, the Secretary
certifies that this rule would not have a
significant economic impact on a
substantial number of small entities.
This proposed rule would not have an
adverse impact on small entities in the
National School Lunch Program and
School Breakfast Program; it would ease
Program operations by adding
flexibilities for State monitoring staff
and menu planners in small local
educational agencies.
Factual Basis: The provisions of this
proposed rule would apply to small
LEAs with less than 2,500 students
operating the National School Lunch
Program and School Breakfast Program,
and to State agency staff who have to
monitor school food authorities in
remote locations. These entities meet
the definitions of ‘‘small governmental
jurisdiction’’ and ‘‘small entity’’ in the
Regulatory Flexibility Act. These
entities would benefit from the meal
pattern and monitoring flexibilities
proposed in this rule.
Executive Order 13771
Executive Order 13771 directs
agencies to reduce regulation and
control regulatory costs and provides
that the cost of planned regulations be
prudently managed and controlled
through a budgeting process. This
proposed rule is expected to be an E.O.
13771 deregulatory action. The changes

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
proposed by this rule aim to simplify
meal pattern, monitoring, and reporting
requirements in the National School
Lunch and School Breakfast programs.
This rule is estimated to reduce school
meal administrative burden by 171,372
hours, which is $11.4 million in
annualized savings at a 7 percent
discount rate, discounted to a 2016
equivalent, over a perpetual time
horizon.

jbell on DSKJLSW7X2PROD with PROPOSALS3

Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) established
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, FNS
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
FNS to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
more cost effective or least burdensome
alternative that achieves the objectives
of the rule.
This proposed 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 NSLP, SMP, SBP, CACFP, and
the SFSP are listed in the Catalog of
Federal Domestic Assistance under
NSLP No. 10.555, SMP No. 10.556, SBP
No. 10.553, CACFP No. 10.558, and
SFSP 10.559 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 operations.
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

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

operators provides FNS valuable input
that informs rulemaking. Based on the
inquiries and information from State
agencies disclosing challenges with
Program requirements, FNS is proposing
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 final 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.
Executive Order 12988, Civil Justice
Reform
This proposed 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 this rule, all applicable
administrative procedures must be
exhausted.
Civil Rights Impact Analysis
FNS has reviewed this proposed 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.
A comprehensive Civil Rights Impact
Analysis (CRIA) was conducted on the
proposed rule, including an analysis of
participant data and provisions
contained in the rule. The CRIA
indicated the regulatory changes
contained in the proposed rule simplify
oversight and offer flexibilities that
simplify local operations. These
proposed flexibilities aim to: (1)
Facilitate schools offering wholesome
meals that fit the operational constraints
of schools across the Nation, (2) support
operational efficiency, and (3) ease the

PO 00000

Frm 00031

Fmt 4701

Sfmt 4702

4123

States’ monitoring responsibility. The
proposed changes also codify meal
modification updates making it easier
for Program participants who require
meal modifications (that fall outside the
meal patterns) to obtain the necessary
documentation. After a careful review of
the rule’s intent and provisions, FNS
has determined that this rule is not
expected to limit or reduce the ability of
protected classes of individuals to
participate in the NSLP, SMP, SBP,
CACFP, and SFSP or have a
disproportionate adverse impact on the
protected classes.
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.
FNS has assessed the impact of this
proposed rule on Indian Tribes and
determined that this rule does not, to
the best of its knowledge, have Tribal
implications that require Tribal
consultation under E.O. 13175. FNS
provided opportunity for consultation
on the issue but received no feedback.
If a tribe requests consultation in the
future, FNS will work with the Office of
Tribal Relations to ensure meaningful
consultation is provided.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. Chap. 35; 5 CFR part 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 proposes changes to
simplify meal pattern and monitoring
requirements in the National School
Lunch and School Breakfast Programs.
The proposed changes, including
optional flexibilities, are customerfocused and are intended to help State
and local Program operators overcome
operational challenges that limit their
ability to manage these Programs
efficiently.

E:\FR\FM\23JAP3.SGM

23JAP3

4124

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
information collection requirements are
not accurately reflected under OMB#
0584–0006. These errors were corrected
in a revision of this collection submitted
in September 2019. However, for
transparency and to provide clarity
regarding the impact of the changes
proposed in this rulemaking, we are
describing the burden of these existing
requirements here:
• Administrative Review Cycle: This
rule proposes to allow State agencies to
revert from the current 3-year review

Explanatory Note on Existing
Information Collection Requirements
(OMB# 0584–0006)
As explained above, this proposed
rule would revise the National School
Lunch Program (NSLP) requirements,
including recordkeeping and reporting
requirements, to ease administrative
burden for State agencies and School
Food Authorities (SFAs), while
continuing to ensure Program integrity.
However, in two areas, these existing

cycle to a longer review cycle of 5 years,
which would reduce the current
reporting and recordkeeping burden by
increasing the length of the review
cycle. However, the burden associated
with these reviews, which have been a
regulatory requirement since 2016, has
not reflected in the approved collection
under #0584–0006. The needed change
in recordkeeping burden estimates to
correct this error is described in the
table below:

RECORDKEEPING UNDER OMB# 0584–0006
Description of activities

Regulation
citation

SA completes and maintains documentation used
to conduct Administrative
Review.

210.18 (c–h)

Total SA Recordkeeping .....
Total Recordkeeping ....

Estimated
number of
respondents

Frequency of
response

Average
burden hours
per response

Total annual
responses

Estimated
total annual
burden hours

Hours
currently
approved

Corrected
burden hour
estimate

56

113

6,347

48

304,640

0

304,640

......................

........................

........................

........................

........................

........................

........................

........................

......................

........................

........................

........................

........................

........................

........................

304,640

• Reporting on Performance-Based
Reimbursement: This rule proposes that
the performance-based reimbursement
quarterly reporting requirement
specified in § 210.5(d)(2)(ii) be changed

to an annual reporting requirement.
However, the burden associated with
the existing quarterly review
requirement was inadvertently omitted
from the renewal of #0584–0006

approved on November 13, 2016. The
needed change in reporting burden
estimates to correct this error is
described in the table below:

jbell on DSKJLSW7X2PROD with PROPOSALS3

REPORTING UNDER OMB# 0584–0006
Estimated
number of
respondents

Hours
currently
approved

Corrected
burden hour
estimate

SAs submit an annual report to FNS detailing the
disbursement of performance-based reimbursement to SFAs.

210.5(d)(2)(ii)

56

4

224

.25

56

0

56

Total SA Reporting .............

......................

........................

........................

........................

........................

........................

........................

56

Total Reporting ............

......................

........................

........................

........................

........................

........................

........................

56

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

Total annual
responses

Estimated
total annual
burden hours

Regulation
citation

Relative to these corrected burden
estimates specifically, FNS estimates
that this proposed rule will decrease the
reporting burden by 42 hours and
decrease the recordkeeping burden by
121,856 hours. Specific changes
proposed to the existing burdens above
are explained in Table for 0584–NEW
below.
The rule makes other changes to
recordkeeping and reporting that results
in additional reductions in burden of
49,474 fewer hours. The currently
approved burden inventory for the
requirements outlined in this proposed
rule, inclusive of pending corrections to
#0584–0006, is 469,986 hours. The
average burden per response and the
annual burden hours are explained
below and summarized in the charts
that follow.

Frequency of
response

Average
burden hours
per response

Description of activities

In accordance with the Paperwork
Reduction Act of 1995, this proposed
rule will create information collection
requirements and revise existing
information collection requirements that
are subject to review and approval by
the Office of Management and Budget;
therefore, FNS is submitting for public
comment the information collection
burden that would result from adoption
of the proposals in the rule. Some
information collection requirements
being amended by the rule are currently
approved under OMB# 0584–0006
7 CFR part 210 National School Lunch
Program. Others are new burdens
resulting from this rulemaking. Because
OMB# 0584–0006 is under review by
OMB, FNS is requesting a new OMB
Control Number for the new and
existing information requirements

PO 00000

Frm 00032

Fmt 4701

Sfmt 4702

which are impacted by this proposed
rule in order to ensure that the review
of this proposed rule does not interfere
with this renewal. After OMB has
approved the information collection
requirements submitted in conjunction
with the final rule, FNS will merge
these requirements and their burden
into OMB# 0584–0006.
These changes are contingent upon
OMB approval. When the information
collection requirements have been
approved, FNS will publish a separate
action in the Federal Register
announcing OMB’s approval. Comments
on this proposed rule and changes in
the information collection burden must
be received by March 23, 2020.
Comments on this proposed rule must
be received by March 23, 2020.
Comments are invited on: (a) Whether

E:\FR\FM\23JAP3.SGM

23JAP3

4125

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) 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 notice will be
summarized and included in the request
for OMB approval. All comments will
also become a matter of public record.
Title: Simplifying Meal Service and
Monitoring Requirements in the
National School Lunch and School
Breakfast Programs.
OMB Control Number: 0584–NEW.
Expiration Date: [Not Yet
Determined.]
Type of Request: New collection.
Abstract: This is a new information
collection that revises existing
information collection requirements
from OMB Number 0584–0006 7 CFR
part 210 National School Lunch
Program which are being impacted by
this rulemaking, as well as imposing
new information collection
requirements. This proposed rule would
revise the National School Lunch
Program (NSLP) administrative review
requirements to ease administrative
burden for State agencies and SFAs,
while continuing to ensure Program
integrity. This rule proposes to allow
State agencies to revert from the current
3-year review cycle to a longer review

cycle of 5 years. This proposed rule
would require State agencies to conduct
a comprehensive administrative review
of each SFA participating in NSLP,
School Breakfast Program, and other
Federal school nutrition programs at
least once during a 5-year cycle and
require State agencies to identify highrisk SFAs for additional oversight. State
agencies would continue to have the
option to review SFAs more frequently.
These changes to the administrative
review cycle are intended to reduce
reporting and recordkeeping burden
currently approved under OMB# 0584–
0006 by increasing the length of the
review cycle, which FNS estimates will
reduce the number of responses
submitted by the State agencies. The
change to the frequency of the review
cycle will reduce the recordkeeping
burdens associated with the
requirements that State agencies
maintain documentation of Local
Education Agency/SFA compliance
with nutrition standards for competitive
foods, maintain records of all reviews
(including Program violations,
corrective action, fiscal action and
withholding of payments), and maintain
documentation of fiscal action taken to
disallow improper claims submitted by
SFAs, as determined through claims
processing, reviews, and USDA audits.
The change to the frequency of the
review cycle will also reduce reporting
burden associated with the
requirements that State agencies notify
SFAs in writing of review findings,
corrective actions, deadlines, and
potential fiscal action with grounds and
right to appeal as well as the reporting
burden associated with the requirement
that SFAs submit to their State agency
a written response to reviews
documenting corrective action for
Program deficiencies. The burden for

the public notification requirement—
that State agencies must post a summary
of the most recent administrative review
results of SFAs on the SA website and
make a copy available upon request—is
also reduced by the change in the
frequency of the review cycle.
The rule also proposes to change the
frequency of the performance-based
reimbursement reporting requirement
from quarterly to annually. These
proposed changes are expected to
simplify operational requirements,
increase efficiency, and make it easier
for State and local Program operators to
feed children. This proposed rule will
also add recordkeeping burdens for
high-risk SFAs that would receive a
targeted follow-up review within two
years of being designated high-risk.
Unless adjustments are made to these
requirements during the final
rulemaking stage, FNS estimates that
this proposed rule will decrease the
burden for 0584–0006 by 171,372
burden hours (reporting burden by
44,834 hours, recordkeeping burden by
125,754 hours, and public notification
burden by 784 hours). The total burden
inventory for this new information
collection as a result of this proposed
rule is 298,614 hours. The average
burden per response and the annual
burden hours are explained below and
summarized in the charts which follow.
Affected Public: School Food
Authorities and State Agencies.
Estimated Number of Respondents:
3,864.
Estimated Number of Responses per
Respondent: 7.25.
Estimated Total Annual Responses:
28,000.
Estimated Time per Response: 10.66.
Estimated Total Annual Burden on
Respondents: 298,614.

ESTIMATED ANNUAL BURDEN FOR 0584–NEW
Estimated
number of
respondents

Frequency of
response

Total annual
responses

Average
burden hours
per response

Estimated total
annual burden
hours

Hours
currently
approved *
under OMB#
0584–0006

Estimated
change in
burden hours
due to
rulemaking

Description of activities

Regulation citation

SA notifies SFAs in writing of review findings,
corrective actions, deadlines, and potential
fiscal action with right to appeal.
SAs submit an annual report to FNS detailing
the disbursement of performance-based reimbursement to SFAs.

210.18(i)(3) .................

56

68

3,808

8

30,464

52,864

¥22,400

210.5(d)(2)(ii) ..............

56

1

56

.25

14

56 (0)*

¥42

Total SA Reporting ...........................................
SFA submits to the SA a written response to
reviews documenting corrective action for
Program deficiencies.

.....................................
210.15(a)(3) &
210.18(k)(2).

56
3,808

........................
1

3,864
3,808

........................
8

30,478
30,464

........................
52,856

¥22,442
¥22,392

Total SFA Reporting ........................................

.....................................

3,808

........................

3,808

........................

30,464

........................

¥22,392

Total Reporting .........................................

.....................................

3,864

........................

7,672

........................

60,942

........................

¥44,834

jbell on DSKJLSW7X2PROD with PROPOSALS3

Reporting

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

PO 00000

Frm 00033

Fmt 4701

Sfmt 4702

E:\FR\FM\23JAP3.SGM

23JAP3

4126

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
ESTIMATED ANNUAL BURDEN FOR 0584–NEW—Continued
Description of activities

Estimated
number of
respondents

Regulation citation

Frequency of
response

Average
burden hours
per response

Total annual
responses

Estimated total
annual burden
hours

Hours
currently
approved *
under OMB#
0584–0006

Estimated
change in
burden hours
due to
rulemaking

Recordkeeping
SA maintains documentation of LEA/SFA
compliance with nutrition standards for competitive foods.
SA maintains records of all reviews and audits
(including Program violations, corrective action, fiscal action and withholding of payments). (FNS–640).
SA maintains documentation of fiscal action
taken to disallow improper claims submitted
by SFAs, as determined through claims
processing, reviews, and USDA audits.
SA completes and maintains documentation
used to conduct Administrative Review.
SA completes and maintains documentation
used to conduct targeted Follow Up Administrative Review..

210.18(h)(2)(iv) ...........

56

68

3,808

.25

952

1,652

¥700

210.20(b)(6) &
210.18(o)(f)(k,l,m) &
210.23(c).

56

68

3,808

8

30,472

52,878

-22,406

210.20(b)(7) &
210.19(c) &
210.18(o).

56

68

3,808

.50

1,904

3,304

¥1,400

210.18 (c-h) ................

56

68

3,808

48

182,784

* 304,640 (0)

¥121,856

210.18(c) .....................

56

23

1,288

16

20,608

0

+20,608

Total SA Recordkeeping ..................................

.....................................

56

........................

16,520

........................

236,720

........................

¥125,754

Total Recordkeeping .................................

.....................................

56

........................

16,520

........................

236,720

........................

¥125,754

Public Notification
State agencies must post a summary of the
most recent administrative review results of
SFAs on the SA website and make a copy
available upon request.

210.18(m)(1) ...............

56

68

3,808

.25

952

1,736

-784

Total SA Public Notification .............................

.....................................

56

........................

3,808

........................

952

........................

¥784

Total Public Notification ............................

.....................................

56

........................

3,808

........................

952

........................

¥784

* Denotes corrected estimate of current burden hours; parenthetical indicates actual approved hours (before pending corrections).

Total Number of Respondents: 3,864.
Average Number of Responses per
Respondent: 7.246.
Total Annual Responses: 28,000.
Average Hours per Response:
10.664791.
Total Burden Hours: 298,614.
In summary, although the Information
Collection Request for this proposed
rule is being submitted as a new
information collection, this proposed
rule actually impacts existing
information and imposes new
information collection requirements for
OMB# 0584–0006. The current
inventory under OMB# 0584–0006 for
the information requirements outlined
in this proposed rule is 469,986
(165,290) hours.* Once the final rule
has been published and the final ICR is
approved, these proposals will be
merged into OMB# 0584–0006. FNS
estimates that these proposed changes
will decrease the burden hours by
171,372 hours.

jbell on DSKJLSW7X2PROD with PROPOSALS3

E-Government Act Compliance
The Department is committed to
complying with the 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.

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

List of Subjects
7 CFR Part 210
Grant programs—education, Grant
programs—health, Infants and children,
Nutrition, Penalties, Reporting and
recordkeeping requirements, School
breakfast and lunch programs, Surplus
agricultural commodities.
7 CFR Part 215
Food assistance programs, Grant
programs—education, Grant program—
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 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 235
State administrative expense funds,
Administrative practice and procedure,
Food assistance programs, Grant

PO 00000

Frm 00034

Fmt 4701

Sfmt 4702

programs—education, Grant programs—
health, Infants and children, Reporting
and recordkeeping requirements, School
breakfast and lunch programs.
Accordingly, 7 CFR parts 210, 215,
220, 226, and 235 are proposed to be
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. In § 210.2:
a. Revise the definition of ‘‘Child’’;
b. In the definition of ‘‘School’’,
redesignate paragraphs (a), (b), and (c)
as paragraphs (1), (2) and (3); and
■ c. Add a definition for ‘‘State licensed
healthcare professional’’ in alphabetical
order.
The revision and addition read as
follows:
■
■
■

§ 210.2

Definitions.

*

*
*
*
*
Child means—
(1) A student of high school grade or
under as determined by the State
educational agency, who is enrolled in
an educational unit of high school grade
or under as described in paragraphs (1)
and (2) of the definition of ‘‘School,’’
including students who are mentally or
physically disabled as defined by the
State and who are participating in a

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
school program established for the
mentally or physically disabled; or
(2) A person under 21 chronological
years of age who is enrolled in an
institution or center as described in
paragraph (3) of the definition of
‘‘School;’’ or
(3) For purposes of reimbursement for
meal supplements served in afterschool
care programs, an individual enrolled in
an afterschool care program operated by
an eligible school who is 18 years of age
or under at the start of the school year,
or a mentally or physically disabled
individual, as defined by the State,
enrolled in an agency or a child care
facility serving a majority of persons 18
years of age or younger.
*
*
*
*
*
State licensed healthcare professional
means an individual who is authorized
to write medical prescriptions under
State law. This may include, but is not
limited to, a licensed physician, nurse
practitioner, and physician’s assistant,
depending on State law.
*
*
*
*
*
§ 210.4

[Amended]

3. Amend paragraph (b)(3)
introductory text by removing the words
‘‘§ 210.10(n)(1)’’ and adding, in its place
‘‘§ 210.10(o)(1)’’.
■ 4. In § 210.5, revise paragraph
(d)(2)(ii) to read as follows:
■

§ 210.5

Payment process to States.

*

*
*
*
*
(d) * * *
(2) * * *
(ii) Each State agency must also
submit an annual report detailing the
disbursement of performance-based
cash assistance described in
§ 210.4(b)(1). Such report must be
submitted no later than 30 days after the
end of each fiscal year. State agencies
will no longer be required to submit the
annual report once all school food
authorities in the State have been
certified. The report must include the
total number of school food authorities
in the State and the names of certified
school food authorities.
*
*
*
*
*
§ 210.7

[Amended]

5. Amend paragraph (e) by removing
‘‘§ 210.10(n)(1)’’ and adding, in its place
‘‘§ 210.10(o)(1)’’.

■

§ 210.9

[Amended]

6. Amend paragraph (c) introductory
text by removing ‘‘§ 210.10(n)(1)’’ and
adding, in its place ‘‘§ 210.10(o)(1)’’.
■ 7. In § 210.10:
■ a. At the end of paragraph (a)(1)(i) add
a sentence;
■ b. In paragraph (a)(3), add ‘‘through
June 30, 2021’’ at the end of the third
sentence;
■ c. In paragraph (b)(1)(ii), remove
‘‘Food’’ and in its place add ‘‘Through
June 30, 2021, food’’;
■

4127

d. Revise paragraph (c) introductory
text and table;
■ e. Revise paragraph (c)(1);
■ f. At the end of paragraph (c)(2)
introductory text, add a sentence;
■ g. Revise the last two sentences of
paragraph (c)(2)(iii) introductory text;
■ h. Revise paragraph (c)(3);
■ i. Revise paragraph (d)(3);
■ j. Revise the table in paragraph (f)(1);
■ k. In the first sentence of paragraph
(f)(4), remove ‘‘Food’’ and add in its
place ‘‘Through June 30, 2021, food’’;
■ l. In paragraph (g), revise the first
sentence;
■ m. In paragraph (h)(2) introductory
text, add ‘‘Through June 30, 2021,’’ at
the beginning of the first sentence; and
■ n. Revise paragraphs (j) and (m).
The additions and revisions read as
follows:
■

§ 210.10 Meal requirements for lunches
and requirements for afterschool snacks.

(a) * * *
(1) * * *
*
*
*
*
*
(i) * * * Potable water must be
calorie-free, noncarbonated, and may be
unflavored or naturally flavored.
*
*
*
*
*
(c) Meal pattern for school lunches.
Schools must offer the food components
and quantities required in the lunch
meal pattern established in the
following table, except as permitted in
paragraph (m) of this section:
Lunch meal pattern

Food components
Grades K–5

Grades 6–8

Grades 9–12

Amount of food a per week (minimum per day).
Fruits (cups) b ...............................................................................................................................
Vegetables (cups) b ......................................................................................................................
Dark green c ..........................................................................................................................
Red/Orange c ........................................................................................................................
Beans and peas (legumes) c ................................................................................................
Starchy c ................................................................................................................................
Other c d .................................................................................................................................
Additional Vegetables to Reach Total e ................................................................................
Grains (oz eq) f ............................................................................................................................
Meats/Meat Alternates (oz eq) ....................................................................................................
Fluid milk (cups) g ........................................................................................................................

21⁄2 (1⁄2)
33⁄4 (3⁄4)
1⁄2
3⁄4
1⁄2
1⁄2
1⁄2
1
8–9 (1)
8–10 (1)
5 (1)

21⁄2 (1⁄2)
33⁄4 (3⁄4)
1⁄2
3⁄4
1⁄2
1⁄2
1⁄2
1
8–10 (1)
9–10 (1)
5 (1)

5 (1)
5 (1)
1⁄2
11⁄4
1⁄2
1⁄2
3⁄4
11⁄2
10–12 (2)
10–12 (2)
5 (1)

600–700
<10
≤1,035

750–850
<10
≤1,080

Other Specifications: Daily Amount Based on the Average for a 5-Day Week
(kcal) h

Min-max calories
.............................................................................................................
Saturated fat (% of total calories) h .............................................................................................
Sodium Target 2 (mg) e ...............................................................................................................

jbell on DSKJLSW7X2PROD with PROPOSALS3

Trans fat h i j ..................................................................................................................................

550–650
<10
≤935

Nutrition label or manufacturer specifications
must indicate zero grams of trans fat per serving
(through June 30, 2021).

a Food

items included in each group and subgroup and amount equivalents. Minimum creditable serving is 1⁄8 cup.
quarter-cup of dried fruit counts as 1⁄2 cup of fruit; 1 cup of leafy greens counts as 1⁄2 cup of vegetables. No more than half of the fruit or
vegetable offerings may be in the form of juice. All juice must be 100% full-strength.
c Larger amounts of these vegetables may be served.
d This category consists of ‘‘Other vegetables’’ as defined in paragraph (c)(2)(iii)(E) of this section. For the purposes of the NSLP, the ‘‘Other
vegetables’’ requirement may be met with any additional amounts from the dark green, red/orange, and beans/peas (legumes) vegetable subgroups as defined in paragraph (c)(2)(iii) of this section.
b One

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

PO 00000

Frm 00035

Fmt 4701

Sfmt 4702

E:\FR\FM\23JAP3.SGM

23JAP3

4128

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

e Any

vegetable subgroup may be offered to meet the total weekly vegetable requirement.
least half of the grains offered weekly must be whole grain-rich as specified in FNS guidance, and the remaining grain items offered must
be enriched.
g All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk may be unflavored or flavored provided that unflavored milk is offered at each meal service.
h The average daily calories for a 5-day school week menu must be within the range (at least the minimum and no more than the maximum
values). Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within the specifications for calories,
saturated fat, trans fat (through June 30, 2021), and sodium. Foods of minimal nutritional value and fluid milk with fat content greater than 1 percent are not allowed.
i Sodium Target 1 is effective from July 1, 2014 (SY 2014–2015) through June 30, 2024 (SY 2023–2024). Sodium Target 2 (shown) is effective
July 1, 2024 (SY 2024–2025).
j Through June 30, 2021, food products and ingredients must contain zero grams of trans fat (less than 0.5 grams) per serving.
f At

(1) Age/grade groups. Schools must
plan menus for students using the
following age/grade groups: Grades K–5
(ages 5–10), grades 6–8 (ages 11–13),
and grades 9–12 (ages 14–18), except as
permitted in paragraph (m) of this
section. If an unusual grade
configuration in a school prevents the
use of these established age/grade
groups, students in grades K–5 and
grades 6–8 may be offered the same food
quantities at lunch provided that the
calorie and sodium standards for each
age/grade group are met.
(2) * * * Allowable modifications,
exceptions, and variations are listed in
paragraph (m) of this section. * * *
*
*
*
*
*
(iii) * * * Cooked dry beans and peas
(legumes) offered as a meat alternate
may also count toward the weekly
legumes requirement, but may not count
toward the minimum amount of
vegetables that must be offered daily

and weekly. Vegetable offerings at lunch
over the course of the week must
include the following five vegetable
subgroups, as defined in this section, in
the quantities specified in the meal
pattern in this paragraph (c), except as
permitted in paragraph (m) of this
section:
*
*
*
*
*
(3) Food components in outlying
areas. Schools in American Samoa,
Guam, Hawaii, Puerto Rico, and the U.S.
Virgin Islands may serve vegetables
such as yams, plantains, or sweet
potatoes to meet the grains component.
*
*
*
*
*
(d) * * *
(3) Fluid milk substitutions for nondisability reasons. If a school food
authority chooses to offer one or more
substitutions for fluid milk for nondisability reasons, the nondairy
beverage(s) must provide the nutrients
listed in the following table. Fluid milk

substitutions must be fortified in
accordance with fortification guidelines
issued by the Food and Drug
Administration. A school food authority
need only offer the nondairy beverage(s)
that it has identified as allowable fluid
milk substitutions according to the
following chart.
Per cup
(8 fl oz)

Nutrient
Calcium .......................................
Protein ........................................
Vitamin A ....................................
Vitamin D ....................................
Magnesium .................................
Phosphorus .................................
Potassium ...................................
Riboflavin ....................................
Vitamin B–12 ..............................

*

*
*
(f) * * *
(1) * * *

*

276 mg.
8 g.
150 mcg.
2.5 mcg.
24 mg.
222 mg.
349 mg.
0.44 mg.
1.1 mcg.

*

Calorie ranges for lunch

Min-max calories (kcal) a b ...........................................................................................................

Grades K–5

Grades 6–8

Grades 9–12

550–650

600–700

750–850

a The

average daily amount for a 5-day school week must fall within the minimum and maximum levels.
sources of calories (solid fats and added sugars) may be added to the meal pattern if within the specifications for trans fat
(through June 30, 2021), calories, saturated fat, and sodium.
b Discretionary

jbell on DSKJLSW7X2PROD with PROPOSALS3

*

*
*
*
*
(g) * * * The State agency and school
food authority must provide technical
assistance and training to assist schools
in planning lunches that meet the meal
pattern in paragraph (c) of this section;
the trans fat (through June 30, 2021),
calorie, saturated fat, and sodium
specifications established in paragraph
(f) of this section; and the meal pattern
requirements in paragraphs (o), (p), and
(q) of this section as applicable. * * *
*
*
*
*
*
(j) Responsibility for monitoring meal
requirements. Compliance with the
meal requirements in paragraph (b) of
this section, including dietary
specifications for trans fat (through June
30, 2021), calories, saturated fat, and
sodium and paragraphs (o), (p), and (q)
of this section, as applicable, will be
monitored by the State agency through

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

administrative reviews authorized in
§ 210.18.
*
*
*
*
*
(m) Modifications, exceptions, and
variations allowed in reimbursable
meals—(1) Reasonable modifications for
disability requests. School food
authorities must make reasonable
modifications, including substitutions,
to lunches and afterschool snacks for
students who have a disability under
Federal law and 7 CFR 15b.3 and whose
disability restricts their diet. The
modification requested must be related
to the disability or limitations caused by
the disability and must be offered at no
additional cost to the student or
household. In order to receive
reimbursement when a modified meal
does not meet the meal pattern
requirements specified in paragraph (c)
of this section, households must submit

PO 00000

Frm 00036

Fmt 4701

Sfmt 4702

to school food authorities a written
medical statement from a State licensed
healthcare professional that provides
sufficient information about the
impairment and how it restricts the
student’s diet. Modified meals that meet
the meal pattern requirements in
paragraph (c) of this section are
reimbursable with or without a medical
statement. School food authorities must
ensure that parents/guardians and
students have notice of the procedure
for requesting meal modifications and
the process for resolving disputes
related to modifications for disabilities.
See 7 CFR 15b.6(b) and 15b.25.
Expenses incurred when making
reasonable modifications that exceed
program reimbursement rates must be
paid by the school food authority; costs
may be paid from the nonprofit food
service account.

E:\FR\FM\23JAP3.SGM

23JAP3

jbell on DSKJLSW7X2PROD with PROPOSALS3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
(2) Variations for non-disability
requests—(i) Dietary preferences. School
food authorities should consider
cultural, ethical, Tribal, and religious
preferences when planning and
preparing meals. For example, school
food authorities are encouraged to
provide meals to accommodate
students’ religious needs and practices,
unless modifications cannot be made for
legitimate, non-discriminatory reasons,
such as operational constraints. Any
variations must be consistent with the
meal pattern requirements specified in
paragraph (c) of this section. Expenses
incurred from meal pattern variations
that exceed program reimbursement
rates must be paid by the school food
authority; costs may be paid from the
nonprofit food service account.
(ii) Option to provide fluid milk
substitutions for non-disability reasons.
A school food authority opting to
provide fluid milk substitutions for nondisability reasons has discretion to
provide the nondairy beverage(s) of its
choice, provided the beverage(s) meets
the nutritional requirements outlined in
paragraph (d) of this section. A school
food authority must obtain a written
request from a State licensed healthcare
professional or a student’s parent or
legal guardian that identifies the need
for the substitute prior to providing a
fluid milk substitution. A school food
authority must inform the State agency
if any of its schools choose to offer fluid
milk substitutions for non-disability
reasons. Expenses incurred when
providing substitutions for fluid milk
that exceed program reimbursements
must be paid by the school food
authority.
(3) Exceptions for natural disasters. If
there is a natural disaster or other
catastrophe, FNS may temporarily allow
schools to serve meals for
reimbursement that do not meet the
requirements in this section.
(4) Variations for operational reasons.
Schools should consider operational
factors when planning and preparing
meals. With prior State agency written
notification, FNS allows variations as
described in this paragraph (m) on an
experimental or continuing basis in the
food components for the meal pattern in
paragraph (c) of this section for
operational reasons. Variations allowed
under this paragraph (m) must be
necessary to meet operational needs.
(i) Age/grade group variations for
operational reasons—(A) Age/grade
group variations for schools with unique
grade configurations. Schools with
unique grade configurations that do not
align with the grade groups established
in paragraph (c)(1) of this section may
use the meal pattern appropriate for the

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

majority of students to one grade above
and/or below the established grade
groups. For example, a school with
students in grades 5–9 may use the
grades 6–8 meal pattern for all student
meals.
(B) Age/grade group variations for
schools with unique grade
configurations in small school food
authorities. In school food authorities
serving fewer than 2,500 students,
schools with unique grade
configurations that do not align with the
grade groups established in paragraph
(c)(1) of this section may use one or two
meal patterns to plan meals for all
students. For example, a school with
students in grades K–12 in a small
school food authority may use the
grades 6–8 meal pattern for all student
meals.
(ii) Vegetable subgroups variations for
operational reasons. School food
authorities that experience operational
challenges offering varied amounts of
vegetable subgroups over a school week,
as specified in paragraph (c) of this
section, may offer 1⁄2 cup of each
vegetable subgroup to all age/grade
groups over a school week. The total
amount of vegetables offered daily and
weekly for each age/grade group must
reflect the meal pattern in paragraph (c)
of this section.
*
*
*
*
*
■ 8. In § 210.11:
■ a. In the first sentence of paragraph
(c)(3)(i), remove ‘‘the school day’’ and in
its place add ‘‘two school days’’;
■ b. In paragraph (f)(2), remove ‘‘trans
fat’’ and in its place add ‘‘trans fat
(through June 30, 2021)’’;
■ c. In the first sentence of paragraph
(f)(3)(i), remove ‘‘trans fat’’ and in its
place add ‘‘trans fat (through June 30,
2021)’’;
■ d. In the first sentence of paragraph
(f)(3)(ii), remove ‘‘trans fat’’ and in its
place add ‘‘trans fat (through June 30,
2021)’’;
■ e. In paragraph (f)(3)(iii), remove
‘‘trans fat’’ and in its place add ‘‘trans
fat (through June 30, 2021)’’;
■ f. In paragraph (g), remove ‘‘The’’ and
add in its place ‘‘Through June 30, 2021,
the’’;
■ g. In paragraph (h)(2)(i), remove ‘‘,
trans fat’’ and add in its place add
‘‘trans fat (through June 30, 2021)’’;
■ h. In paragraph (h)(2)(ii), remove
‘‘trans fat’’ and add in its place add
‘‘trans fat (through June 30, 2021)’’;
■ i. In paragraph (m)(1)(iv), remove
‘‘and’’ after the semicolon;
■ j. Revise paragraph (m)(1)(v);
■ k. Add paragraph (m)(1)(vi);
■ l. In paragraph (m)(2)(iv), remove the
word ‘‘and’’ after the semicolon;

PO 00000

Frm 00037

Fmt 4701

Sfmt 4702

4129

m. Revise paragraph (m)(2)(v); and
n. Add paragraph (m)(2)(vi).
The additions and revisions read as
follows:

■
■

§ 210.11 Competitive food service and
standards.

*

*
*
*
*
(m) * * *
(1) * * *
(v) 100 percent fruit/vegetable juice,
and 100 percent fruit and/or vegetable
juice diluted with water (with or
without carbonation and with no added
sweeteners) (no more than 8 fluid
ounces); and
(vi) Calorie-free, flavored water, with
or without carbonation (no more than 20
fluid ounces).
(2) * * *
(v) 100 percent fruit/vegetable juice,
and 100 percent fruit and/or vegetable
juice diluted with water (with or
without carbonation and with no added
sweeteners) (no more than 12 fluid
ounces); and
(vi) Calorie-free, flavored water, with
or without carbonation (no more than 20
fluid ounces).
*
*
*
*
*
■ 9. In § 210.18:
■ a. In paragraph (b), revise the
definition of ‘‘Administrative reviews’’;
■ b. Revise paragraph (c) introductory
text;
■ c. In paragraph (c)(1), remove the two
occurrences of ‘‘3’’ and in their place
add ‘‘5’’;
■ d. Revise paragraph (c)(2);
■ e. Revise paragraph (e)(5);
■ f. In paragraph (f) introductory text,
add a new second sentence;
■ g. Revise paragraph (f)(3);
■ h. In paragraph (g) introductory text,
add a new third sentence;
■ i. In paragraph (g)(1)(ii) introductory
text, add a sentence at the end;
■ j. Add paragraph (g)(2)(i)(B)(4);
■ k. In paragraph (h) introductory text,
add a new second sentence;
■ l. In paragraph (h)(1) introductory
text, revise the first sentence;
■ m. Add paragraph (h)(2)(xi);
■ n. In paragraph (l), revise the first
sentence;
■ o. Remove paragraph (l)(2)(ii) and
redesignate paragraphs (l)(2)(iii), (iv),
and (v) as paragraphs (l)(2)(ii), (iii), and
(iv), respectively;
■ p. Revise newly redesignated
paragraphs (l)(2)(ii) and (l)(2)(iii)
introductory text; and
■ q. In newly redesignated paragraph
(l)(2)(iv), remove ‘‘through (iv)’’ and in
its place add ‘‘and (iii)’’.
The additions and revisions read as
follows:
§ 210.18

*

E:\FR\FM\23JAP3.SGM

*

Administrative reviews.

*

23JAP3

*

*

jbell on DSKJLSW7X2PROD with PROPOSALS3

4130

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

(b) * * *
Administrative reviews.
Administrative reviews means the
comprehensive off-site and/or on-site
evaluation of all school food authorities
participating in the programs specified
in paragraph (a) of this section. The
term ‘‘administrative review’’ refers to a
review of both critical and general areas
in accordance with paragraphs (g) and
(h) of this section, as applicable for each
reviewed program. The administrative
review may include other areas of
program operations determined by the
State agency to be important to program
performance. In addition, the Secretary
shall establish criteria that provides
State agencies the option to omit
designated areas of the administrative
review when a State or school food
authority utilizes FNS-specified
monitoring efficiencies outside of the
administrative review, or adopts FNSspecified error reduction strategies.
*
*
*
*
*
(c) Timing of reviews. State agencies
must conduct administrative reviews of
all school food authorities participating
in the National School Lunch Program
(including the Afterschool Snacks and
the Seamless Summer Option) and
School Breakfast Program at least once
during a 5-year review cycle, provided
that each school food authority is
reviewed at least once every 6 years. At
a minimum, the on-site portion of the
administrative review must be
completed during the school year in
which the review was begun.
*
*
*
*
*
(2) Targeted follow-up reviews. The
State agency must identify school food
authorities that are high-risk. High-risk
school food authorities include any
school food authorities that have had
previous findings on an administrative
review, findings found through the
oversight of Federal procurement
regulations, and as otherwise prescribed
by the Secretary. Within two years of
being designated high-risk, such school
food authorities must receive a targeted
follow-up review. Targeted follow-up
review areas include the critical areas
found in (g) and (h)(1) of this section,
and as otherwise prescribed by the
Secretary. Nothing in this section shall
preclude the State agency from
conducting additional reviews. The
State agency may conduct targeted
follow-up and additional reviews in the
same school year as the administrative
review.
*
*
*
*
*
(e) * * *
(5) Noncompliance with eligibility
determinations, meal counting and
claiming, and meal pattern

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

requirements. If the State agency
determines there is significant
noncompliance with eligibility
determinations or meal counting and
claiming requirements set forth in
§§ 210.8 and 245.6, or the meal pattern
and nutrition requirements set forth in
§§ 210.10 and 220.8 of this chapter, as
applicable, the State agency must select
the school food authority for an
administrative review early in the
review cycle.
(f) * * * State agencies may omit
designated areas of review, in part or
entirely, where a school food authority
or State agency has implemented FNSspecified error reduction strategies or
utilized FNS-specified monitoring
efficiencies. * * *
*
*
*
*
*
(3) Audit results. To prevent
duplication of monitoring efforts, the
State agency may use any recent and
currently applicable results from
federally required audit activity or from
State-imposed audit requirements. In
addition, State agencies may use recent
and currently applicable results from
local audit activity to assess
compliance. Such results may be used
only insofar as they pertain to the
reviewed school(s) or the overall
operation of the school food authority,
that they are relevant to the review
period, and that they adhere to audit
standards contained in 2 CFR part 200,
subpart F. The State agency must
document the source and the date of the
audit.
(g) * * * However, State agencies
may omit designated critical areas of
review, in part or entirely, where a
school food authority or State agency
has implemented FNS-specified error
reduction strategies or utilized FNSspecified monitoring efficiencies. * * *
(1) * * *
(ii) * * * The State agency may omit
the on-site visit for breakfast in
extenuating travel circumstances, such
that lodging is not available within 50
miles of the reviewed school, and with
prior notice to FNS.
(2) * * *
(i) * * *
(B) * * *
(4) The State agency may omit the
observation of the on-site breakfast
review in extenuating travel
circumstances, such that lodging is not
available within 50 miles of the
reviewed school, and with prior notice
to FNS.
*
*
*
*
*
(h) * * * However, State agencies
may omit designated general areas of
review, in part or entirely, where the
school food authority or State agency

PO 00000

Frm 00038

Fmt 4701

Sfmt 4702

has implemented FNS-specified error
reduction strategies or utilized FNSspecified monitoring efficiencies. * * *
(1) * * * The State agency must
conduct an assessment of the school
food authority’s nonprofit school food
service to evaluate the risk of
noncompliance with resource
management requirements as prescribed
in the FNS Administrative Review
Manual. * * *
(2) * * *
(xi) Buy American. The State agency
shall ensure that the school food
authority complies with the Buy
American requirements set forth in
§ 210.21(d), as specified in the FNS
Administrative Review Manual for the
general areas of review.
*
*
*
*
*
(l) * * * The State agency must take
fiscal action for all Performance
Standard 1 violations and specific
Performance Standard 2 violations
identified during an administrative
review, including targeted follow-up or
other reviews, as specified in this
section. * * *
(2) * * *
(ii) For repeated violations involving
food quantities, whole grain-rich foods,
milk type, and vegetable subgroups
cited under paragraph (g)(2) of this
section, the State agency has discretion
to apply fiscal action as follows:
(A) If the meals contain insufficient
quantities of the required food
components, the affected meals may be
disallowed/reclaimed;
(B) If no whole grain-rich foods are
offered during the week of review,
meals for the entire week of review may
be disallowed and/or reclaimed;
(C) If insufficient whole grain-rich
foods are offered during the week of
review, meals for one or more days
during the week of review may be
disallowed/reclaimed.
(D) If an unallowable milk type is
offered or no milk variety is offered, any
of the deficient meals selected may be
disallowed/reclaimed; and
(E) If one vegetable subgroup is not
offered over the course of the week
reviewed, the reviewer should evaluate
the cause(s) of the error and may
determine the appropriate fiscal action.
All meals served in the deficient week
may be disallowed/reclaimed.
(F) If a weekly vegetable subgroup is
offered in insufficient quantity to meet
the weekly vegetable subgroup
requirement, meals for one day of the
week of review may be disallowed/
reclaimed; and
(G) If the amount of juice offered
exceeds the weekly limitation, meals for
the entire week of review may be
disallowed/reclaimed.

E:\FR\FM\23JAP3.SGM

23JAP3

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
(iii) For repeated violations of trans
fat (through June 30, 2021), calorie,
saturated fat, and sodium dietary
specifications cited under paragraph
(g)(2)(ii) of this section, the State agency
has discretion to apply fiscal action to
the reviewed school as follows:
*
*
*
*
*
§ 210.19

Magnesium .................................
Phosphorus .................................
Potassium ...................................
Riboflavin ....................................
Vitamin B–12 ..............................

*

[Amended]

Per cup
(8 fl oz)

Nutrient

*

*

*

24 mg.
222 mg.
349 mg.
0.44 mg.
1.1 mcg.

*

■

10. In § 210.19, in paragraph (a)(5),
remove ‘‘3’’ and in its place add ‘‘5’’.

PART 220—SCHOOL BREAKFAST
PROGRAM

PART 215—SPECIAL MILK PROGRAM
FOR CHILDREN

■

11. The authority citation for part 215
continues to read as follows:

Authority: 42 U.S.C. 1773, 1779, unless
otherwise noted.

■

Authority: 42 U.S.C. 1772 and 1779.

12. In § 215.7a, revise paragraph (b) to
read as follows:

■

§ 215.7a Fluid milk and non-dairy milk
substitute requirements.

*

*
*
*
*
(b) Fluid milk substitutes. Non-dairy
fluid milk substitutions that provide the
nutrients listed in the following table
and are fortified in accordance with
fortification guidelines issued by the
Food and Drug Administration may be
provided for non-disabled children who
cannot consume fluid milk due to
medical or special dietary needs when
requested in writing by the child’s
parent or guardian. A school or day care
center need only offer the non-dairy
beverage that it has identified as an
allowable fluid milk substitute
according to the following table.
Per cup
(8 fl oz)

Nutrient
Calcium .......................................
Protein ........................................
Vitamin A ....................................
Vitamin D ....................................

276 mg.
8 g.
150 mcg.
2.5 mcg.

13. The authority citation for part 220
continues to read as follows:

14. In § 220.2:
a. Amend the definition of
‘‘Breakfast’’ by removing ‘‘§§ 220.8 and
220.23’’ and adding ‘‘§ 220.8’’ in its
place;
■ b. Amend the definition of ‘‘Fiscal
year’’ by removing ‘‘the period of 15
calendar months beginning July 1, 1976,
and ending September 30, 1977; and’’
and by removing ‘‘1977’’ and adding, in
its place ‘‘2019’’;
■ c. Revise the definition of ‘‘Menu
item’’;
■ d. Remove the definition of ‘‘Nutrient
Standard Menu Planning/Assisted
Nutrient Standard Menu Planning’’; and
■ e. Amend the definition of ‘‘School
week’’ by removing ‘‘and § 220.23’’.
The revision reads as follows:
■
■

§ 220.2

Definitions.

*

*
*
*
*
Menu item means a food offered as
part of the reimbursable meal.
*
*
*
*
*
■ 15. In § 220.8:
■ a. In paragraph (a)(1), add a sentence
at the end;
■ b. In paragraph (a)(3), revise the third
sentence;

4131

c. In paragraph (b)(1)(ii), remove
‘‘Food’’ and in its place add ‘‘Through
June 30, 2021, food’’;
■ d. In paragraph (b)(1)(iii), add ‘‘,
except as allowed in paragraph (m)’’
before the period;
■ e. Revise the table in paragraph (c)
introductory text;
■ f. In paragraph (c)(1), revise the last
sentence;
■ g. Revise paragraph (c)(2)(i);
■ h. Revise the first sentence of
paragraph (c)(2)(ii);
■ i. Remove paragraph (c)(2)(iv);
■ j. Revise paragraph (c)(3);
■ k. Revise the table in paragraph (f)(1);
■ l. In the first sentence of paragraph
(f)(4), remove ‘‘Food’’ and in its place
add ‘‘Through June 30, 2021, food’’;
■ m. Revise the first sentence of
paragraph (g);
■ n. In paragraph (h)(2) introductory
text, add ‘‘Through June 30, 2021,’’ at
the beginning of the sentence; and
■ o. Revise paragraph (m).
The addition and revisions read as
follows:
■

§ 220.8

Meal requirements for breakfasts.

*

*
*
*
*
(a) * * *
(1) * * * Potable water must be
calorie-free, noncarbonated, and may be
unflavored or naturally flavored.
*
*
*
*
*
(3) * * * Through June 30, 2021,
labels or manufacturer specifications for
food products and ingredients used to
prepare school meals for students in
grades K through 12 must indicate zero
grams of trans fat per serving (less than
0.5 grams). * * *
*
*
*
*
*
(c) * * *
Breakfast meal pattern

Food components
Grades K–5

Grades 6–8

Grades 9–12

jbell on DSKJLSW7X2PROD with PROPOSALS3

Amount of food a per week (minimum per day)
Fruits (cups) b c .............................................................................................................................
Vegetables (cups) c ......................................................................................................................
Dark green ............................................................................................................................
Red/Orange ..........................................................................................................................
Beans and peas (legumes) ..................................................................................................
Starchy ..................................................................................................................................
Other .....................................................................................................................................
Additional Vegetables to Reach Total e ................................................................................
Grains (oz eq) d and/or Meats/Meat Alternates (oz eq) e ............................................................
Fluid milk (cups) f .........................................................................................................................

5 (1)
0
0
0
0
0
0
0
7–10 (1)
5 (1)

5 (1)
0
0
0
0
0
0
0
8–10 (1)
5 (1)

5 (1)
0
0
0
0
0
0
0
9–10 (1)
5 (1)

400–550
<10
≤535

450–600
<10
≤570

Other Specifications: Daily Amount Based on the Average for a 5-Day Week
Min-max calories (kcal) g h ...........................................................................................................
Saturated fat (% of total calories) h .............................................................................................
Sodium Target 2 (mg) h i ..............................................................................................................

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

PO 00000

Frm 00039

Fmt 4701

Sfmt 4702

350–500
<10
≤485

E:\FR\FM\23JAP3.SGM

23JAP3

4132

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
Breakfast meal pattern
Food components
Grades K–5

Trans fat h j ...................................................................................................................................

Grades 6–8

Grades 9–12

Nutrition label or manufacturer specifications
must indicate zero grams of trans fat per serving
(through June 30, 2021).

a Food

items included in each group and subgroup and amount equivalents. Minimum creditable serving is 1⁄8 cup.
quarter cup of dried fruit counts as 1⁄2 cup of fruit; 1 cup of leafy greens counts as 1⁄2 cup of vegetables. No more than half of the fruit or
vegetable offerings may be in the form of juice. All juice must be 100% full-strength.
c Schools must offer 1 cup of fruit daily and 5 cups of fruit weekly, except for service variations allowed under paragraph (m) of this section.
Vegetables may be substituted for fruits, but the first two cups per week of any such substitution must be from the dark green, red/orange, beans
and peas (legumes) or ‘‘Other vegetables’’ subgroups, as defined in § 210.10(c)(2)(iii) of this chapter. Schools offering breakfast in a non-cafeteria setting may offer 1⁄2 cup of fruits daily, as permitted in paragraph (m) of this section.
d At least half of the grains offered weekly must be whole-grain-rich as specified in FNS guidance, and the remaining grain items offered must
be enriched.
e There is a combined grains and/or meat/meat alternate component. Schools may offer meats/meat alternates and/or grains interchangeably
to meet the daily and/or weekly ounce equivalents requirement.
f All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk may be unflavored or flavored provided that unflavored milk is offered at each meal service.
g The average daily calories for a 5-day school week must be within the range (at least the minimum and no more than the maximum values).
h Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within the specifications for calories, saturated fat, trans fat (through June 30, 2021), and sodium. Fluid milk with fat content greater than 1 percent milk fat is not allowed.
i Sodium Target 1 (shown) is effective from July 1, 2014 (SY 2014–2015) through June 30, 2024(SY 2023–2024). Sodium Target 2 (shown) is
effective July 1, 2024 (SY 2024–2025).
j Through June 30, 2021, food products and ingredients must contain zero grams of trans fat (less than 0.5 grams) per serving.

jbell on DSKJLSW7X2PROD with PROPOSALS3

b One

(1) * * * Age/grade group variations
are allowed as specified in § 210.10(m)
of this chapter.
(2) * * *
(i) Grains and/or meats/meat
alternates component. Schools may
offer grains and/or meats/meat
alternates interchangeably to meet the
daily and weekly ounce equivalents for
this component requirement.
(A) Grains—(1) Enriched and whole
grains. All grains offered must be made
with enriched and/or whole grain meal
or flour. Whole grain-rich products must
contain at least 50 percent whole grains
and the remaining grains in the product
must be enriched.
(2) Daily and weekly servings. The
grains component is based on minimum
daily servings plus total servings over a
5-day school week. Schools serving
breakfast 6 or 7 days per week must
increase the weekly grains quantity by
approximately 20 percent (1⁄5) for each
additional day. When schools operate
less than 5 days per week, they may
decrease the weekly quantity by
approximately 20 percent (1⁄5) for each
day less than 5. The servings for
biscuits, rolls, muffins, and other grain/
bread varieties are specified in FNS
guidance. At least half of the grains
offered weekly must meet the whole
grain-rich criteria specified in FNS
guidance, and the remaining grain items
offered must be enriched.
(B) Meats/meat alternates—(1)
Enriched macaroni. Enriched macaroni
with fortified protein as defined in

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

appendix A to part 210 may be used to
meet part of the meats/meat alternates
requirement when used as specified in
appendix A to part 210. An enriched
macaroni product with fortified protein
as defined in appendix A to part 210
may be used to meet part of the meats/
meat alternates component or the grains
component but may not meet both food
components in the same lunch.
(2) Nuts and seeds. Nuts and seeds
and their butters are allowed as meat
alternates in accordance with program
guidance. Acorns, chestnuts, and
coconuts may not be used because of
their low protein and iron content. Nut
and seed meals or flours may be used
only if they meet the requirements for
Alternate Protein Products established
in appendix A to part 220. Nuts or seeds
may be used to meet no more than onehalf (50 percent) of the meats/meat
alternates component with another
meats/meat alternates to meet the full
requirement.
(3) Yogurt. Yogurt may be used to
meet all or part of the meats/meat
alternates component. Yogurt may be
plain or flavored, unsweetened or
sweetened. Noncommercial and/or nonstandardized yogurt products, such as
frozen yogurt, drinkable yogurt
products, homemade yogurt, yogurt
flavored products, yogurt bars, yogurt
covered fruits and/or nuts or similar
products are not creditable. Four ounces
(weight) or 1⁄2 cup (volume) of yogurt
equals one ounce of the meats/meat
alternates requirement.

PO 00000

Frm 00040

Fmt 4701

Sfmt 4702

(4) Tofu and soy products.
Commercial tofu and soy products may
be used to meet all or part of the meats/
meat alternates component in
accordance with FNS guidance.
Noncommercial and/or nonstandardized tofu and products are not
creditable.
(5) Beans and peas (legumes). Cooked
dry beans and peas (legumes) may be
used to meet all or part of the meats/
meat alternates component. Beans and
peas (legumes) are identified in this
section and include foods such as black
beans, garbanzo beans, lentils, kidney
beans, mature lima beans, navy beans,
pinto beans, and split peas.
(6) Other meat alternates. Other meat
alternates, such as cheese and eggs, may
be used to meet all or part of the meats/
meat alternates component in
accordance with FNS guidance.
(ii) * * * Schools must offer daily the
fruit quantities specified in the breakfast
meal pattern in this paragraph (c),
except for fruit service variations
allowed under paragraph (m) of this
section.
*
*
*
*
*
(3) Food components in outlying
areas. Schools in American Samoa,
Guam, Hawaii, Puerto Rico, and the U.S.
Virgin Islands may serve a vegetable
such as yams, plantains, or sweet
potatoes to meet the grains component.
*
*
*
*
*
(f) * * *
(1) * * *

E:\FR\FM\23JAP3.SGM

23JAP3

4133

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules
CALORIE RANGES FOR BREAKFAST—EFFECTIVE SY 2013–2014

Minimum-maximum calories (kcal) a b ..........................................................................................

Grades K–5

Grades 6–8

Grades 9–12

350–500

400–550

450–600

a The

average daily amount for a 5-day school must fall within the minimum and maximum levels.
b Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within the specifications for calories, saturated fat, trans fat (through June 30, 2021), and sodium.

*

*
*
*
*
(g) * * * The State agency and school
food authority must provide technical
assistance and training to assist schools
in planning breakfasts that meet the
meal pattern in paragraph (c) of this
section, the dietary specifications for
trans fat (through June 30, 2021),
calories, saturated fat, and sodium
established in paragraph (f) of this
section, and the meal pattern in
paragraphs (o) and (p) of this section, as
applicable. * * *
*
*
*
*
*
(m) Exceptions and variations allowed
in reimbursable meals. (1) With State
agency approval, schools that offer
breakfast in a non-cafeteria setting may
serve students 1⁄2 cup of fruit as part of
the reimbursable meal.
(2) The modifications, exceptions,
variations, and requirements in
§ 210.10(m) of this chapter also apply to
this Program.
*
*
*
*
*
PART 226—CHILD AND ADULT CARE
FOOD PROGRAM
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).

17. In § 226.2, add a definition for
‘‘State licensed healthcare professional’’
in alphabetical order to read as follows:

■

§ 226.2

Definitions.

jbell on DSKJLSW7X2PROD with PROPOSALS3

*

*
*
*
*
State licensed healthcare professional
means an individual who is authorized
to write medical prescriptions under
State law. This may include, but is not
limited to, a licensed physician, nurse
practitioner, and physician’s assistant,
depending on State law.
*
*
*
*
*
■ 18. In 226.20, revise the paragraph (g)
subject heading and paragraphs (g)(1)
introductory text and (g)(1)(i), (g)(2)
introductory text, (g)(2)(i), and (g)(3) to
read as follows:
§ 226.20

Requirements for Meals.

*

*
*
*
*
(g) Modifications, exceptions, and
variations allowed in reimbursable

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

meals—(1) Reasonable modifications for
disability requests. Reasonable
modifications, including substitutions,
must be made on a case-by-case basis for
foods and meals described in
paragraphs (a), (b), and (c) of this
section for individual participants who
have a disability under Federal law and
7 CFR 15b.3 and whose disability
restricts their diet. The modification
requested must be related to the
disability or limitations caused by the
disability and must be offered at no
additional cost to the child or adult
participant. Institutions and facilities
must ensure that parents, guardians,
adult participants, and persons on
behalf of adult participants have notice
of the procedure for requesting meal
modifications and the process for
resolving disputes related to
modifications for disabilities. See 7 CFR
15b.6(b) and 15b.25. Expenses incurred
when making reasonable modifications
that exceed program reimbursement
rates must be paid by the institution or
facility; costs may be paid from the
institution’s nonprofit food service
account.
(i) In order to receive reimbursement
when a modified meal does not meet the
meal pattern requirements specified in
paragraphs (a), (b), and (c) of this
section, households must submit to the
institution or facility a written medical
statement from a State licensed
healthcare professional that provides
sufficient information about the
impairment and how it restricts the
child or adult participant’s diet.
Modified meals that meet the meal
pattern requirements in paragraph (a),
(b), or (c) of this section are
reimbursable with or without a medical
statement.
*
*
*
*
*
(2) Variations for non-disability
requests—(i) Dietary preferences.
Institutions and facilities should
consider cultural, ethical, tribal, and
religious preferences when planning
and preparing meals. For example,
institutions and facilities are
encouraged to provide meals to
accommodate participants’ religious
needs and practices, unless
modifications cannot be made for
legitimate, non-discriminatory reasons,
such as operational constraints. Any

PO 00000

Frm 00041

Fmt 4701

Sfmt 4702

variations must be consistent with the
meal pattern requirements specified in
paragraphs (a), (b), and (c) of this
section. Expenses incurred from meal
pattern variations that exceed program
reimbursement rates must be paid by
the institution or facility. These costs
may be paid from the institution’s
nonprofit food service account.
*
*
*
*
*
(3) Fluid milk substitutions for nondisability reasons. Non-dairy fluid milk
substitutions that provide the nutrients
listed in the following table and are
fortified in accordance with fortification
guidelines issued by the Food and Drug
Administration may be provided for
non-disabled child and adult
participants when requested in writing
by a State licensed healthcare
professional, the child’s parent or
guardian, or by, or on behalf of, an adult
participant. Expenses incurred when
providing substitutions for fluid milk
that exceed program reimbursements
must be paid by the participating
institution, family or group day care
home, or sponsored center. An
institution or facility need only offer the
non-dairy beverage that it has identified
as an allowable fluid milk substitute
according to the following table.
Per cup
(8 fl oz)

Nutrient
Calcium .......................................
Protein ........................................
Vitamin A ....................................
Vitamin D ....................................
Magnesium .................................
Phosphorus .................................
Potassium ...................................
Riboflavin ....................................
Vitamin B–12 ..............................

*

*

*

*

276 mg.
8 g.
150 mcg.
2.5 mcg.
24 mg.
222 mg.
349 mg.
0.44 mg.
1.1 mcg.

*

PART 235—STATE ADMINISTRATIVE
EXPENSE FUNDS
19. 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).

20. In § 235.5:
a. Revise the third sentence of
paragraph (d);

■
■

E:\FR\FM\23JAP3.SGM

23JAP3

4134

Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules

b. Revise the second sentence of
paragraph (e)(1); and
■ c. In paragraph (e)(2), remove
‘‘unexpended’’ and add in its place
‘‘unobligated’’.
The revisions read as follows:
■

§ 235.5

Payments to States.

*
*
*
*
(d) * * * Based on this information or
on other available information, FNS

jbell on DSKJLSW7X2PROD with PROPOSALS3

*

VerDate Sep<11>2014

18:35 Jan 22, 2020

Jkt 250001

shall reallocate, as it determines
appropriate, any funds allocated to State
agencies in the current fiscal year which
will not be obligated in the following
fiscal year and any funds carried over
from the prior fiscal year which remain
unobligated at the end of the current
fiscal year. * * *
(e) * * *
(1) * * * In subsequent fiscal years,
up to 20 percent may remain available

PO 00000

Frm 00042

Fmt 4701

Sfmt 9990

for obligation and expenditure in the
second fiscal year. * * *
*
*
*
*
*
Dated: January 8, 2020.
Stephen L. Censky,
Deputy Secretary.
[FR Doc. 2020–00926 Filed 1–17–20; 4:15 pm]
BILLING CODE 3410–30–P

E:\FR\FM\23JAP3.SGM

23JAP3