[Federal Register Volume 60, Number 187 (Wednesday, September 27, 1995)]
[Proposed Rules]
[Pages 49807-49808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23910]



 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 60, No. 187 / Wednesday, September 27, 1995 / 
Proposed Rules  

[[Page 49807]]


DEPARTMENT OF AGRICULTURE

Food and Consumer Service

7 CFR Parts 210 and 225

RIN 0584-ACO4


Removal of the ``Cheese Alternate Products'' Specifications From 
the National School Lunch Program

AGENCY: Food and Consumer Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule seeks comment on the proposed elimination of 
specifications governing the use of ``Cheese Alternate Products'' in 
the National School Lunch Program. The removal of these specifications 
should enable cheese substitute manufacturers more freedom in the 
production of this type of product while maintaining program nutrition 
standards through reliance on existing Food and Drug Administration 
rules.

DATES: To be assured of consideration, comments must be postmarked on 
or before November 13, 1995.

ADDRESSES: Ms. Marion Hinners, Section Head, Food Science and Nutrition 
Section, Technical Assistance Branch, Nutrition and Technical Services 
Division, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302.

FOR FURTHER INFORMATION CONTACT: Ms. Marion Hinners, Section Head, Food 
Science and Nutrition Section, Technical Assistance Branch, Nutrition 
and Technical Services Division, USDA, (703) 305-2556.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed 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 proposed rule has been reviewed with regard to the 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 through 
612). The Administrator of the Food and Consumer Service has determined 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities. There are currently fewer than 
ten companies participating in the Child Nutrition Programs (CNPs) 
affected by this regulation. In addition, the removal of this 
regulation is expected to reduce the regulatory burden of all companies 
producing a cheese alternate type product and allow the use of a wider 
variety of products than currently can be used in the CNPs.

Category of Federal Domestic Assistance

    The National School Lunch Program and the Summer Food Service 
Program are listed in the Catalog of Federal Domestic Assistance under 
No. 10.555 and 10.559, respectively, and are subject to the provisions 
of Executive Order 12372 which requires intergovernmental consultation 
with State and local officials. (7 CFR Part 3015, Subpart V and final 
rule related notice at 48 FR 29112, June 24, 1983.)

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This proposed rule is intended to have preemptive 
effect with respect to any State or local laws, regulations or policies 
which conflict with its provisions or would otherwise impede its full 
implementation. This proposed rule is not intended to have retroactive 
effect unless specified in the DATES section of this preamble. Prior to 
any judicial challenge to the provisions of this proposed rule or the 
application of the provisions, all applicable administrative procedures 
must be exhausted.

Information Collection

    This proposed rule contains no new information collection 
requirements which are subject to review by the Office of Management 
and Budget under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 
35).

Background

    Cheese alternates are cheese substitutes that are used primarily as 
economical replacements for natural or processed cheese in the National 
School Lunch Program (NSLP). Cheese alternates are a class of products 
required to be made from conventional ingredients which must meet 
nutritional and physical specifications set forth in the NSLP 
regulations in 7 CFR Part 210, Appendix A--Alternate Foods for Meals 
(Appendix A to Part 210) in order to be used as a food component 
contributing to the NSLP meal patterns.
    On August 29, 1974, cheese alternate requirements were added to 
Appendix A for both the NSLP (Part 210) and the Summer Food Service 
Program (SFSP) (Part 225) regulations. They set forth the 
specifications for use of cheese alternates to meet the meal pattern 
requirements for meat/meat alternate. Subsequent changes in SFSP 
regulations removed these specifications for using cheese alternates to 
meet the program's meal patterns. The remaining reference to cheese 
alternates in the SFSP regulations at 225.16(f)(3) was left in place as 
an oversight. This rule would delete any reference to cheese alternate 
products in the SFSP by removing the existing reference at 
225.16(f)(3).
    The cheese alternates were originally used in the NSLP and SFSP as 
a less expensive means of providing additional cheese type products 
which are nutritious and very popular with program participants. An 
additional factor in favor of using cheese alternates was the 
Department's belief that if natural cheese became scarce, or 
prohibitively expensive, the use of cheese alternates could 
significantly reduce program costs. By including specifications in the 
regulations governing the use of cheese alternates, the Department 
ensured that program nutritional requirements would be met.
    The cheese alternate requirements restrict the protein in cheese 
alternates to animal protein and state how a cheese alternate may be 
used in the NSLP. Cheese alternates are required to be made from 
conventional ingredients and must be equivalent to natural cheese in 
all major nutrients found in natural and/or process cheese, including 
the quality and quantity of protein. The Department arrived at the 
nutrient specifications by averaging the known 

[[Page 49808]]
nutrients found in a sampling of natural and process cheeses.
    After the cheese alternate requirements were published in 1974, the 
Food and Drug Administration (FDA) added substitute and imitation 
products to its Food Labeling regulations (21 CFR 101.3(e)). In order 
for a product to be labeled a substitute, under current FDA 
regulations, a product must not be ``nutritionally inferior to the food 
for which it substitutes. * * *'' This FDA rule has many of the same 
requirements for cheese substitutes as the current NSLP cheese 
alternate requirements. As previously stated, the nutritional profile 
in the cheese alternate requirements was determined by averaging known 
nutrients found in natural and process cheeses.
    Because cheese substitutes are not nutritionally inferior to the 
cheese for which they substitute, the Food and Consumer Service (FCS) 
would add cheese substitutes to the Food Buying Guide for Child 
Nutrition Programs (FBG), Program Aid number 1331, if this rulemaking 
is finalized as proposed. The FBG is the reference employed by schools 
and FCS to determine if meal components are reimbursable. CNP 
nutritional standards would not be affected as the FDA rule for 
substitutes is actually more specific than current FCS cheese alternate 
standards in that each cheese substitute must meet the specific 
nutritional profile of the cheese for which it is substituting. It is 
the intention of FCS to add cheese substitutes to the FBG with a 1:1 
credit. Thus, a cheese substitute could contribute to the meal pattern 
in the same way as natural or process cheese currently does.
    As part of the nutrition labeling regulations, FDA has updated 21 
CFR 101.3(e)(4)(i), ``Identity labeling of foods in packaged form,'' to 
state that nutritional inferiority ``does not include a reduction in 
the caloric or fat content. * * *'' The FDA regulation, then, allows 
for a food product, even a reduced or lowfat version, to be considered 
a substitute for another if it is not nutritionally inferior. The 
cheese alternate requirements do not allow for these reductions and in 
fact require a cheese alternate to contain a minimum of 21% fat. This 
minimum fat requirement is inconsistent with FCS objectives to assist 
food service professionals to offer menus consistent with the ``Dietary 
Guidelines for Americans,'' jointly published by the Departments of 
Agriculture and Health and Human Services.
    Two additional specifications for use of cheese alternate products 
as meat alternate products in NSLP would be removed by eliminating the 
existing FCS requirements in Appendix A to Part 210. The first is the 
requirement that cheese alternate products be combined with at least 
50% natural or process cheese. This requirement was originally 
incorporated to keep the use of alternate foods limited to a maximum of 
50% of the meat/meat alternate component. Under this proposed rule, 
cheese substitutes may be used instead of the blend of cheese and 
cheese alternates currently required to satisfy the meat/meat alternate 
component of a reimbursable meal. FCS does not believe that cheese 
substitutes need to be limited to 50% of the meat alternate portion of 
the meal, since the ``not nutritionally inferior'' requirement 
contained in FDA's food substitute regulation will assure that cheese 
substitutes are equivalent to cheese in all major nutrients found in 
cheese. Accordingly, in order to conform the regulations to the 
deletion of the cheese alternate section of Appendix A to 7 CFR Part 
210, the words ``cheese alternate products'' are proposed to be deleted 
from 7 CFR 210.10(k)(3)(i) and 7 CFR 210.10a(d)(2)(i).
    Another change that would result from the proposed deletion of the 
``cheese alternate'' section is removal of the requirement that cheese 
alternates utilize an animal protein source. FDA's cheese substitute 
rule does not specify the need for a specific protein source as do the 
cheese alternate requirements. If the FDA rule for substitute foods is 
allowed to replace the cheese alternate requirements, the protein used 
in the production of the substitute cheese would not be limited to 
animal origin. There is no reason to exclude plant proteins since 
protein from plant sources can be as high quality as animal protein. 
Studies conducted subsequent to the inclusion of the animal protein 
requirement have shown that isolated soy protein can actually have a 
protein quality equal to casein, the animal protein in cheese. Allowing 
plant protein sources to be used will provide greater flexibility for 
manufacturers and will provide for a wider variety of cheese substitute 
products.
    The proposed removal of the cheese alternate portion of Appendix A 
to Part 210 would eliminate FCS specifications for use of cheese 
alternates as meat alternates. This change would allow the use of 
cheese substitutes that are consistent with FDA regulations and allow 
for fat and calorie reductions. This change will add to the choices of 
products available to food service managers while reducing processors' 
regulatory burdens. In addition, the proposed removal of the cheese 
alternate requirements is consistent with the Department's ongoing 
efforts to promote school meals consistent with the ``Dietary 
Guidelines for Americans''.

List of Subjects

7 CFR Part 210

    Children, Commodity School Program, Food Assistance Programs, 
Grants programs--social programs, National School Lunch Program, 
Nutrition, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

7 CFR Part 225

    Food Assistance Programs, Grant programs--Health, Infants and 
Children.

    For the reasons set forth in the preamble, 7 CFR parts 210 and 225 
are proposed to be amended as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

    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]

    2. In 210.10, the first sentence of paragraph (k)(3)(i) is amended 
by removing the words ``, cheese alternate products,''.
    3. In 210.10a, the first sentence of paragraph (d)(2)(i) is amended 
by removing the words ``cheese alternate products,''.
    4. In Appendix A, Alternate Foods for Meals, the section entitled 
``Cheese Alternate Products'' is removed.

PART 225--SUMMER FOOD SERVICE PROGRAM

    1. The authority citation for 7 CFR part 225 continues to read as 
follows:

    Authority: Secs. 9, 13 and 14, National School Lunch Act, as 
amended (42 U.S.C. 1758, 1761 and 1762a).


Sec. 225.16  [Amended]

    2. In 225.16, the first sentence of paragraph (f)(3) is amended by 
removing the words ``, cheese alternate products,''.

    Dated: September 15, 1995.
Ellen Haas,
Under Secretary for Food, Nutrition, and Consumer Services.
[FR Doc. 95-23910 Filed 9-26-95; 8:45 am]
BILLING CODE 3410-30-U