[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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