[Federal Register Volume 66, Number 142 (Tuesday, July 24, 2001)]
[Rules and Regulations]
[Pages 38349-38350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18369]



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 Rules and Regulations
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  Federal Register / Vol. 66, No. 142 / Tuesday, July 24, 2001 / Rules 
and Regulations  

[[Page 38349]]



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: Final rule.

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SUMMARY: This rule finalizes the interim provisions addressing the use 
of products or dishes containing more than 30 parts fully hydrated 
vegetable protein 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, school food authorities must 
identify such blended products or dishes in a manner which does not 
characterize the product or dish solely as beef, pork, poultry or 
seafood. This provision is intended to ensure that program participants 
are not misinformed regarding the use of blended products and dishes.

EFFECTIVE DATE: This final rule will become effective August 24, 2001.

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Eadie, Chief, Policy and 
Program Development Branch, Child Nutrition Division, Food and 
Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 
22302; telephone 703-305-2620.

SUPPLEMENTARY INFORMATION:

Background

Why Was the Interim Rule Published?

    The interim rule on identification of blended meat or seafood 
products served in the school meals programs was published on June 8, 
2000 (65 FR 36315). The interim rule was issued in response to concerns 
about the possibility that blended beef, pork, poultry or seafood 
products or dishes containing more than 30 percent fully hydrated 
vegetable protein (of the hydrated soy and meat total) might be 
presented as beef, pork, poultry or seafood. (Readers will note that 
the term ``vegetable protein product or VPP'' is 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.)
    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. 
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, on the serving line or through other 
available means of communicating with program participants, the interim 
rule required identification of beef, pork, poultry or seafood products 
and dishes containing more than 30 percent fully hydrated vegetable 
protein (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. The interim rule revised 7 CFR 210.10(h) and 7 CFR 220.8 (m).

What Comments Were Received on the Interim Rule?

    We received six comment letters on the interim rule, all of which 
were from food industry representatives. The commentors generally 
supported the changes made by the interim rule. However, commentors 
expressed concerns about formulation of blended VPP products used in 
the Child Nutrition Programs. We have been and will continue to work 
with interested parties about their concerns.
    Two commentors had a specific recommendation. They recommended that 
the level for identifying a product or dish as a blended product be 50 
parts fully hydrated VPP, not 30 parts fully hydrated VPP. These 
commentors stated that at a 50-50 level, the product is predominantly 
VPP.
    Identifying products as blended which contain 50 percent or more 
VPP would place only those products which are equally or predominantly 
made with VPP under the identification requirement. The 30-70 ratio has 
been the established ratio used to describe blended products. 
Maintaining the 30-70 standard will avoid unnecessary confusion and 
will provide notification when products vary from the traditional blend 
levels. Therefore, we are retaining the 30 parts fully hydrated VPP as 
the level products must be identified as a blended product or dish. 
Because we made no changes to the interim rule, it is adopted as final 
at 7 CFR 210.10(h) and 220.8(m).

Executive Order 12866

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

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 final 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 final rule is not

[[Page 38350]]

subject to the requirements of sections 202 and 205 of the UMRA.

Regulatory Flexibility Act

    This final rule was reviewed with regard to the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601 through 612). The Acting 
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 final rule was reviewed under Executive Order 12988, Civil 
Justice Reform. This final 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 final 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 final 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

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507), the third party disclosure requirements included in this final 
rule were reviewed by the Office of Management and Budget. OMB has 
approved these requirements for part 210 under OMB #0584-0006. The 
requirements for part 220 are approved under OMB #0584-0012.

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.

PART 210--NATIONAL SCHOOL LUNCH PROGRAM AND PART 220--SCHOOL 
BREAKFAST PROGRAM

    Accordingly, the interim rule amending 7 CFR Parts 210 and 220 
which was published at 65 FR 36315 on June 8, 2000, is adopted as a 
final rule without change.

    Dated: July 18, 2001.
George A. Braley,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 01-18369 Filed 7-23-01; 8:45 am]
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