[Federal Register Volume 69, Number 235 (Wednesday, December 8, 2004)]
[Rules and Regulations]
[Pages 70872-70874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26933]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210 and 220
RIN 0584-AD63
Waiver of the Requirement To Use Weighted Averages in the
National School Lunch and School Breakfast Programs
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule makes a technical change to the regulations
governing the nutrient analysis of meals served under the National
School Lunch Program and School Breakfast Program. Program regulations
require school food authorities to use ``weighted averages'' for
nutrient analysis of their school meals. Under this method, the
nutrient content of school meals is measured (weighted) according to
the quantity of food items chosen by students. This final rule extends,
until September 30, 2009, the waiver for conducting a weighted nutrient
analysis. This rule responds to changes made under the Child Nutrition
and WIC Reauthorization Act of 2004 and is intended to provide school
food authorities with additional time to gain operational experience
with nutrient analysis.
DATES: Effective January 7, 2005.
FOR FURTHER INFORMATION CONTACT: Ms. Rosemary O'Connell, Section Chief,
School Programs Section, Policy and Program Development Branch, Child
Nutrition Division, Food and Nutrition Service at 703-305-2635.
SUPPLEMENTARY INFORMATION: Section 110 of the Child Nutrition and WIC
[[Page 70873]]
Reauthorization Act of 2004 (Pub. L. 108-265) amended section 9(f)(5)
of the Richard B. Russell National School Lunch Act, 42 U.S.C.
1758(f)(5), by waiving, until September 30, 2009, the requirement that
school food authorities (SFAs) planning menus using nutrient standard
menu planning conduct a weighted analysis of all foods offered to
children as part of their reimbursable meals. A weighted nutrient
analysis is based on the nutrient and calorie levels that each menu
item selected contributes to the reimbursable meal. This requirement
derives from the School Meal Initiative for Healthy Children, a
comprehensive plan that focuses on the nutrient content of the school
meals to ensure that children get the key nutrients and calories needed
for their well-being. In the lunch program, this requirement is set
forth at 7 CFR 210.10(i)(5)(i); in the breakfast program it is located
at 7 CFR 220.8(e)(5)(i).
Prior to Public Law 108-265, the National School Lunch Program
regulations under 7 CFR 210.10 and 7 CFR 220.8 waived compliance with
the weighted averaging requirement until September 30, 2003. The ending
date for the waiver was extended through Food and Nutrition Service
(FNS) guidance in response to several Continuing Resolutions prior to
enactment of Public Law 108-265.
Through Public Law 108-265, Congress re-instated the waiver until
September 30, 2009 in response to concerns about costs and complexity
from program sponsors. However, weighted analysis is still considered a
more accurate method for doing nutrient analysis of school meals
because it is based on the actual number of each menu item selected by
children, rather than simply being an average of the nutrients in an
equal number of items included in the school menu.
The waiver extension applies to all SFAs using nutrient analysis,
as well as to State agencies conducting independent analysis as part of
their ongoing review of schools' compliance with the Federal nutrition
standards. The provision does not prohibit State agencies from
requiring schools to use weighted averages when doing nutrient
analysis, nor does it prohibit State agencies from using weighted
averages when doing nutrient analyses as a part of nutrition reviews of
schools using food-based menu planning systems. Weighted analysis
enables State agencies to provide well-targeted guidance on any
nutrition improvements needed in a school menu.
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C. 601-612). Roberto Salazar,
Administrator of the Food and Nutrition Service, has certified that
this rule will not have a significant economic impact on a substantial
number of small entities. Additionally, the Department of Agriculture
does not anticipate any adverse fiscal impact on local schools.
Public Law 104-4
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, FNS
must generally prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local or tribal governments, in
the aggregate, or to 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 rule contains no 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, this final rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
Executive Order 12372
The National School Lunch Program (NSLP) and the School Breakfast
Program (SBP) are listed in the Catalog of Federal Domestic Assistance
under No. 10.555 and No. 10.553, respectively. These programs are
subject to the provisions of Executive Order 12372, which requires
intergovernmental consultation with State and local officials. State
agencies, local program sponsors, and NSLP and SBP advocates had the
opportunity to provide input during reauthorization of the child
nutrition programs.
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. FNS has
considered the impact of this rule on State and local governments and
has determined that this rule does not have federalism implications.
This rule does not impose substantial or direct compliance costs on
State and local governments. Therefore, under section 6(b) of the
Executive Order, a federalism summary impact statement is not required.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not 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
implementation. This rule is not intended to have retroactive effect
unless so specified in the Effective Date paragraph of the final rule.
Prior to any judicial challenge to the provisions of this rule or the
application of its provisions, all applicable administrative procedures
must be exhausted.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. chap. 35; see 5 CFR
part 1320) requires that the Office of Management and Budget (OMB)
approve all collections of information by a Federal agency before they
can be implemented. Respondents are not required to respond to any
collection of information unless it displays a current valid OMB
control number. This rule does not contain information collection
requirements subject to approval by OMB under the Paperwork Reduction
Act.
Government Paperwork Elimination Act
FNS is committed to compliance with the Government Paperwork
Elimination Act (GPEA), which requires government agencies to provide
the public the option of submitting information or transacting business
electronically to the maximum extent possible. The waiver extension
implemented through this regulation does not require compliance with
the GPEA.
[[Page 70874]]
Public Participation
This action is being finalized without prior notice or public
comment under authority of 5 U.S.C. 553(b)(3)(A) and (B) to quickly
implement the waiver extension granted by the Child Nutrition and WIC
Reauthorization Act of 2004. Thus, the Department of Agriculture has
determined in accordance with 5 U.S.C. 553(b) that Notice of Proposed
Rulemaking and Opportunity for Public Comments is unnecessary and
contrary to the public interest and, in accordance with 5 U.S.C.
553(d), finds that good cause exists for making this action effective
without prior public participation.
Civil Rights Impact Analysis
FNS has reviewed this final rule in accordance with the Department
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify any
major civil rights impacts the rule might have on children on the basis
of race, color, national origin, sex, religion, or disability. After a
careful review of the rule's intent and provisions, FNS has determined
that it does not affect the participation of protected individuals in
the National School Lunch Program.
List of Subjects
7 CFR Part 210
Food and Nutrition Service, Grant programs-education, Grant
programs-health, Infants and children, Nutrition, Penalties, Reporting
and record keeping requirements, School breakfast and lunch programs,
Surplus agricultural commodities.
7 CFR Part 220
Food and Nutrition Service, Grant programs-education, Grant
programs-health, Infants and children, Nutrition, Reporting and record
keeping requirements, School breakfast and lunch programs.
0
Accordingly, 7 CFR Parts 210 and 220 are amended as follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
0
1. The authority citation for 7 CFR part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
Sec. 210.10 [Amended]
0
2. In Sec. 210.10:
0
a. The last sentence of paragraph (i)(5)(i) is amended by removing the
year ``2003'' and adding in its place the year ``2009''.
0
b. The last sentence of paragraph (l)(4)(viii) is amended by removing
the year ``2003'' and adding in its place the year ``2009''.
PART 220--SCHOOL BREAKFAST PROGRAM
0
1. The authority citation for 7 CFR part 220 continues to read as
follows:
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
Sec. 220.8 [Amended]
0
2. In Sec. 220.8:
0
a. The last sentence of paragraph (e)(5)(i) is amended by removing the
year ``2003'' and adding in its place the year ``2009''.
0
b. The last sentence of paragraph (h)(3)(viii) is amended by removing
the year ``2003'' and adding in its place the year ``2009''.
Dated: November 24, 2004.
Roberto Salazar,
Administrator, Food and Nutrition Service.
[FR Doc. 04-26933 Filed 12-7-04; 8:45 am]
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