[Federal Register Volume 65, Number 111 (Thursday, June 8, 2000)]
[Rules and Regulations]
[Pages 36315-36317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14385]



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  Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules 
and Regulations  

[[Page 36315]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

RIN 0584-AC92


National School Lunch Program and School Breakfast Program: 
Identification of Blended Beef, Pork, Poultry or Seafood Products

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule.

-----------------------------------------------------------------------

SUMMARY: This interim rule addresses the use of products or dishes 
containing more than 30 parts fully hydrated vegetable protein products 
to less than 70 parts beef, pork, poultry or seafood in the National 
School Lunch Program and the School Breakfast Program. To the extent 
that participating school food authorities identify foods in a menu or 
on the serving line or through other available means of communicating 
with program participants, this interim rule requires that school food 
authorities identify such products or dishes in a manner which does not 
characterize the product or dish solely as beef, pork, poultry or 
seafood. This interim rule is intended to ensure that program 
participants are not misinformed regarding the use of blended products 
and dishes.

DATES: Effective Date: This interim rule will become effective July 10, 
2000. Comment Date: To be assured of consideration, comments must be 
postmarked on or before August 7, 2000.

ADDRESSES: Comments must be sent to: Robert M. Eadie, Chief, Policy and 
Program Development Branch, Child Nutrition Division, Food and 
Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302 
or via E:Mail at [email protected]. All written submissions will 
be available for public inspection in Room 1007, 3101 Park Center 
Drive, Alexandria, Virginia during regular business hours (8:30 a.m. to 
5 p.m.) Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Mr. William Wagoner or Ms. Janice 
Fabina, 3101 Park Center Drive, Room 1007, Alexandria, Virginia 22302 
or by telephone at (703) 305-2590.

SUPPLEMENTARY INFORMATION:

Background

What Is the Purpose of This Rule?

    On March 9, 2000, the U.S. Department of Agriculture (USDA or we) 
published a rule in the Federal Register (65 FR 12429) updating the 
requirements for using vegetable protein products in the Child 
Nutrition Programs. Among the provisions of that rule, we removed the 
requirement that the meat/meat alternate component of the food-based 
menu planning approaches could consist of no more than 30 percent fully 
hydrated vegetable protein products (of the hydrated soy and meat 
total).
    Subsequent to the publication of the final rule, concerns have been 
raised about the possibility that blended beef, pork, poultry or 
seafood products or dishes containing more than 30 percent fully 
hydrated vegetable protein products (of the hydrated soy and meat 
total) might be presented as beef, pork, poultry or seafood.
    While these blended products and dishes fulfill an essential role 
in the programs, misrepresentation or misperception of the nature of 
those products serves neither industry nor program participants well. 
In addition to the primary mission of providing nutritious meals to 
school children, the lunch and breakfast programs serve as vehicles for 
nutrition and consumer education. Children and their parents must be 
aware of what is in the foods offered in the lunch and breakfast 
programs if they are to make informed food choices.
    Thus, to the extent that school food authorities identify foods in 
the menu, or on the serving line or through other available means of 
communicating with program participants, they must identify beef, pork, 
poultry or seafood products and dishes containing more than 30 percent 
fully hydrated vegetable protein products (of the hydrated soy and meat 
total) in a manner which does not characterize the products or dishes 
solely as beef, pork, poultry or seafood. This interim rule revises 7 
CFR 210.10(h) and 220.8 (m) to effect this change.

How Are Program Participants To Be Advised of the Use of Blended 
Products and Dishes?

    This interim rule requires school food authorities to advise 
children and their parents of the use of these blended products and 
dishes through whatever means they currently use. If a school sends 
menus home, blended products and dishes must not be portrayed solely as 
beef, pork, poultry or seafood products or dishes on the menu. If a 
school uses point of service menu identification, it must not portray 
blended products and dishes solely as beef, pork, poultry or seafood 
products or dishes so that students and their parents can make choices 
that meet their dietary needs.

Miscellaneous

    Commentors will note that the term ``vegetable protein product'' 
has been used in the preamble since this term reflects common usage; 
however, for technical reasons, the term ``alternate protein products'' 
is used in the regulatory text. The reasons for this change in 
terminology are discussed in the preamble to the proposed rule 
published in the Federal Register (64 FR 38839) on July 20, 1999.

Public Participation

    This action is being issued as an interim rule without prior notice 
or public comment under authority of 5 U.S.C. 553(b)(3)(A) and (B). The 
Department has determined in accordance with 5 U.S.C. 553(b) that 
Notice of Proposed Rulemaking and opportunity for public comments prior 
to issuing this interim rule is unnecessary and contrary to the public 
interest. The Department believes that program participants should be 
given the opportunity to make informed menu choices about the foods 
they eat without undue delay. However, the Department is encouraging 
interested parties to comment during the public comment period.

Executive Order 12866

    This interim rule was determined to be non-significant and is not 
subject to review by the Office of Management and Budget under 
Executive Order 12866.

[[Page 36316]]

Public Law 104-4

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, the 
Food and Nutrition Service (FNS) generally prepares 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 interim rule contains no Federal mandates (under 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 interim rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.

Regulatory Flexibility Act

    This interim rule was reviewed with regard to the requirements of 
the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The 
Administrator of FNS has certified that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule makes no changes to the National School Lunch and School 
Breakfast Program meal patterns. However, when certain products are 
used, this rule would require schools to use existing methods of 
communication to advise children and their parents of the use of such 
products.

Executive Order 12372

    The National School Lunch Program and the School Breakfast Program 
are listed in the Catalog of Federal Domestic Assistance under Nos. 
10.555 and 10.553, respectively. Each is 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 12988

    This interim rule was reviewed under Executive Order 12988, Civil 
Justice Reform. This interim 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 
implementation. This interim rule is not intended to have retroactive 
effect unless so specified in the ``Dates'' section of this preamble. 
Prior to any judicial challenge to the provisions of this interim rule 
or the application of the provisions, all applicable administrative 
procedures must be exhausted. This includes any administrative 
procedures provided by State or local governments and, for disputes 
involving procurements by State agencies and sponsors, any 
administrative appeal procedures to the extent required by 7 CFR Part 
3016.
    For the National School Lunch Program and School Breakfast Program, 
the administrative procedures are set forth under the following 
regulations: (1) School food authority appeals of State agency findings 
as a result of an administrative review must follow State agency 
hearing procedures as established pursuant to 7 CFR 210.18(q); (2) 
school food authority appeals of FNS findings as a result of an 
administrative review must follow FNS hearing procedures as established 
pursuant to 7 CFR 210.30(d)(3); and (3) State agency appeals of State 
Administrative Expense fund sanctions (7 CFR 235.11(b)) must follow FNS 
Administrative Review Process as established pursuant to 7 CFR 
235.11(f).

Paperwork Reduction Act

    Sections 210.10(h) and 220.8(m) of this interim rule contain third-
party disclosure requirements. In accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507), USDA has submitted a copy of 
these sections to the Office of Management and Budget for its review.
    Written comments must be received on or before July 10, 2000.
    Comments concerning the third-party disclosure of this interim rule 
should be sent to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Room 3208, New Executive Office 
Building, Washington, DC 20503, Attention: Manish Desai, Desk Officer 
for FNS. A copy of these comments may also be sent to Mr. Eadie at the 
address listed in the ADDRESSES section of this preamble. Commentors 
are asked to separate their comments on the third-party disclosure 
aspects from their comments on the remainder of this interim rule.
    OMB is required to make a decision concerning the third-party 
disclosure aspects contained in this interim regulation between 30 and 
60 days after the publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to the Department on the interim 
regulation.
    Comments are invited on: (a) Whether the third-party disclosure is 
necessary for the proper performance of the functions of the agency, 
including whether the disclosure will have practical utility; (b) the 
accuracy of the agency's estimate of the burden of the third-party 
disclosure aspects, including the validity of the methodology and 
assumptions used; (c) ways to enhance the quality, utility, and clarity 
of the third-party disclosure; and (d) ways to minimize the burden of 
the third-party disclosure, including through the use of appropriate 
automated, electronic, mechanical, or other techniques.
    The title, description, and respondent description of the third-
party disclosure are shown below with an estimate of the annual burden. 
Included in the estimate is the time for making the third-party 
disclosure.

Abstract

    In order to give schools enhanced flexibility in planning menus, we 
now allow them to offer foods that may consist of up to 100 percent 
vegetable protein products. This interim rule requires that, to the 
extent a method (such as a menu) is already in place to communicate 
what foods are offered, school food authorities identify products or 
dishes with more than 30 percent vegetable protein products in a manner 
which does not characterize the products or dishes solely as beef, 
pork, poultry or seafood products or dishes. This is done in the 
interest of allowing program participants to make informed decisions 
about their choices under the school meals programs. Please note that 
we are only requiring this modification for school food authorities 
that already provide menus or otherwise communicate with program 
participants. This could include information provided on serving lines. 
This interim rule does not require that school food authorities use 
menus or other methods of communication.
    In accordance with the Paperwork Reduction Act of 1995, the 
Department is providing the public with the opportunity to provide 
comments on the third-party disclosure aspects of the interim rule as 
noted below:

[[Page 36317]]



                                 Estimated Annual Third-party Disclosure Burden
----------------------------------------------------------------------------------------------------------------
                                                                 Annual
                                                               number of      Annual      Average       Annual
                                                Section         affected    frequency    burden per     burden
                                                                entities                 disclosure     hours
----------------------------------------------------------------------------------------------------------------
For the National School Lunch Program, school food authorities modify existing menus, etc. to identify beef,
 pork, poultry or seafood products or dishes with more than 30 percent vegetable protein products in a manner
 that does not characterize these products or dishes as solely containing beef, pork, poultry or seafood:
    Total existing.......................    7 CFR 210.10(h)            0            0            0            0
    Total proposed.......................    7 CFR 210.10(h)       10,000            1         .016          160
 
 For the School Breakfast Program, school food authorities modify existing menus, etc. to identify beef, pork,
 poultry or seafood products or dishes with more than 30 percent vegetable protein products in a manner that
 does not characterize these products or dishes as solely containing beef, pork, poultry or seafood:
    Total existing.......................     7 CFR 220.8(m)            0            0            0            0
    Total proposed.......................     7 CFR 220.8(m)        5,000            1         .016           80
Total Third-party Disclosure Burden:
    Total existing.......................                  0
    Total proposed.......................               +240
    Change...............................               +240
----------------------------------------------------------------------------------------------------------------

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 220

    Children, Food assistance programs, Grant programs-social programs, 
Nutrition, Reporting and recordkeeping requirements, School Breakfast 
Program.

    Accordingly, 7 CFR Parts 210 and 220 are 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.


    2. In Sec. 210.10, revise the section heading and paragraph (h) to 
read as follows:


Sec. 210.10  What are the nutrition standards and menu planning 
approaches for lunches and the requirements for afterschool snacks?

* * * * *
    (h) What must schools do about nutrition disclosure? To the extent 
that school food authorities identify foods in a menu, or on the 
serving line or through other available means of communicating with 
program participants, school food authorities must identify products or 
dishes containing more than 30 parts fully hydrated alternate protein 
products (as specified in appendix A of this part) to less than 70 
parts beef, pork, poultry or seafood on an uncooked basis, in a manner 
which does not characterize the product or dish solely as beef, pork, 
poultry or seafood. Additionally, FNS encourages schools to inform the 
students, parents, and the public about efforts they are making to meet 
the nutrition standards (see paragraph (b) of this section) for school 
lunches.
* * * * *

PART 220--SCHOOL BREAKFAST PROGRAM

    1. The authority citation for 7 CFR Part 220 continues to read as 
follows:

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


    2. In Sec. 220.8, revise paragraph (m) to read as follows:


Sec. 220.8  What are the nutrition standards and menu planning 
approaches for breakfasts?

* * * * *
    (m) What must schools do about nutrition disclosure? To the extent 
that school food authorities identify foods in a menu, or on the 
serving line or through other available means of communicating with 
program participants, school food authorities must identify products or 
dishes containing more than 30 parts fully hydrated alternate protein 
products (as specified in appendix A of this part) to less than 70 
parts beef, pork, poultry or seafood on an uncooked basis, in a manner 
which does not characterize the product or dish solely as beef, pork, 
poultry or seafood. Additionally, FNS encourages schools to inform the 
students, parents, and the public about efforts they are making to meet 
the nutrition standards (see paragraph (a) of this section) for school 
breakfasts.

    Dated: June 2, 2000.
George A. Braley,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 00-14385 Filed 6-7-00; 8:45 am]
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