[Federal Register Volume 70, Number 114 (Wednesday, June 15, 2005)]
[Rules and Regulations]
[Pages 34627-34630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11805]



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  Federal Register / Vol. 70, No. 114 / Wednesday, June 15, 2005 / 
Rules and Regulations  

[[Page 34627]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

RIN 0584-AD64


School Food Safety Inspections

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule.

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

SUMMARY: This interim rule reflects amendments made by section 111 of 
the Child Nutrition and WIC Reauthorization Act of 2004 which require 
schools participating in the National School Lunch Program (NSLP) and 
the School Breakfast Program (SBP) to increase the number of food 
safety inspections from the one inspection currently required to two 
inspections per year; to post the most recent inspection report in a 
visible location; and to release a copy of the report to members of the 
public upon request. This interim rule also reflects the statutory 
amendment which requires State agencies to annually monitor schools' 
compliance with the inspection requirement (through a consolidated 
report from the school food authority), and to submit a report on the 
results of the review to the Food and Nutrition Service (FNS).
    As a result of the statutory amendments, schools will be able to 
identify and correct food safety problems in a more timely and 
consistent manner, thereby enhancing the quality of school meals. State 
monitoring of the inspection requirement will allow the State agency to 
target their technical assistance efforts to those school food 
authorities (SFAs) experiencing difficulties in meeting the 
requirement. Collecting the number of inspections completed by schools 
will help the State become aware of the level of compliance with this 
requirement and problems associated with it.

DATES: Effective Date: The amendments to Sec. Sec.  210.9, 210.13 and 
220.7 are effective July 15, 2005. The amendments to Sec. Sec.  210.15, 
210.20 and 220.13 contain information collection requirements that have 
not been approved by the Office of Management and Budget (OMB). The 
Food and Nutrition Service will publish a document in the Federal 
Register announcing the effective date of these provisions once this 
approval has been obtained.
    Compliance Date: Compliance with Sec. Sec.  210.9, 210.13 and 220.7 
must begin July 1, 2005. Compliance with the reporting and 
recordkeeping requirements in Sec. Sec.  210.15, 210.20 and 220.13 will 
be announced in a separate document once these requirements have been 
approved by OMB.
    Comment Date: Comments on this rule must be received on or before 
June 15, 2006.

ADDRESSES: The Food and Nutrition Service invites interested persons to 
submit comments on this interim rule. Comments may be submitted by any 
of the following methods:
     E-Mail: Send comments to [email protected]. The 
subject line must include the words ``School Food Safety Inspections''.
     Fax: Submit comments by facsimile transmission to: (703) 
305-2879, attention Robert Eadie.
     Mail: Comments should be addressed to Mr. Robert Eadie, 
Chief, Policy and Program Development Branch, Child Nutrition Division, 
Food and Nutrition Service, Department of Agriculture, 3101 Park Center 
Drive, Room 634, Alexandria, Virginia 22302-1594. All written 
submissions will be available for public inspection at this location 
Monday through Friday, 8:30 a.m.-5 p.m.
     Hand Delivery or Courier: Deliver comments to 3101 Park 
Center Drive, Room 634, Alexandria, Virginia 22302-1594, during normal 
business hours of 8:30 a.m.-5 p.m.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Todd J. Barrett, Acting Section Chief, 
or Marisol Benesch, School Programs Section, Policy and Program 
Development Branch, Child Nutrition Division, Food and Nutrition 
Service at 703-305-2590.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 111 of the Child Nutrition and WIC Reauthorization Act of 
2004 (Public Law 108-265; June 30, 2004) amended section 9(h) of the 
Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1758(h)) 
by increasing the number of mandatory food safety inspections for 
schools participating in the NSLP and SBP from one to two per year, and 
by requiring schools to post the most recent inspection report in a 
visible location and to release a copy of the report to the public upon 
request. Section 111 also requires State agencies to annually monitor 
the number of food safety inspections obtained by schools and to submit 
the results to FNS for each of fiscal years 2006 through 2009. (While 
Public Law 108-265 uses the term ``audit'', this rule uses the word 
``monitor'' because it more appropriately describes the State agency's 
review of the number of inspections completed.) Compliance with these 
requirements is required to begin on July 1, 2005.
    Prior to Public Law 108-265, the NSLA and NSLP regulations at 7 CFR 
210.13(b) required schools to obtain at least one school food safety 
inspection per year, except when a food safety inspection of the school 
was mandated by a State or local governmental agency responsible for 
food safety inspections. No audit or reporting requirements existed.
    Section 111 further adds a requirement that SFAs implement a school 
food safety program for the preparation and service of meals that 
complies with any hazard analysis and critical control point (HACCP) 
system established by the Secretary. This rule does not address the 
HACCP requirement. It will be addressed in a separate rulemaking.

II. Need for More Inspections

    Food safety has always been a priority for the school meal 
programs. Thanks to the efforts of thousands of school foodservice 
workers, school meals are among the safest food available to children 
nationwide. Government data suggest that employee food safety practices 
at elementary schools are

[[Page 34628]]

superior to those at fast food and full-service restaurants.\1\
---------------------------------------------------------------------------

    \1\ ``FDA Report on the Occurrence of Foodborne Illness Risk 
Factors in Selected Institutional Foodservice, Restaurant, and 
Retail Food Store Facility Type (2004)'', U.S. Food and Drug 
Administration, Center for Food Safety and Applied Nutrition, Sept. 
14, 2004.
---------------------------------------------------------------------------

    However, increasing public concern over reports of food safety 
violations in foodservice establishments nationwide and in some school 
districts led Congress to increase the number of required food safety 
inspections for schools. Congress has determined that it is necessary 
for all schools to adopt a more vigilant approach to guarding the 
safety of the program meals consumed by over 28 million children each 
day, as well as the several million children that purchase a la carte 
food items every day. Increasing the number of required inspections is 
expected to encourage more stringent food safety practices and further 
protect children from foodborne illness. This Congressional mandate is 
consistent with the NSLP's overall goal to protect the health and well-
being of school children.
    Two food safety inspections annually will give schools additional 
opportunities to identify and correct immediate and/or persistent food 
safety problems. Schools will also be better able to assess where they 
need to make changes to achieve food safety.

III. Implementation

    FNS has no discretion in implementing the inspection requirement 
established by Public Law 108-265. However, we will work with our State 
cooperators, within the parameters of the law, to help facilitate 
compliance with the inspection requirement.

Schools

    Many schools participate in both the NSLP and the SBP and use the 
same facilities for the production and service of meals. Schools 
participating in more than one school meal program will not be required 
to obtain separate food inspections for each meal program if production 
and service of meals take place in the same facility. This rule also 
allows food safety inspections conducted under the Summer Food Service 
Program (SFSP) or the Child and Adult Care Food Program (CACFP) at 
sites participating in these programs and in the NSLP and/or SBP to be 
counted toward meeting the annual requirement as long as the 
inspections cover the same food service facility. The requirements of 
Public Law 108-265 do not apply to schools that only offer the Special 
Milk Program.
    Where there are indications that schools have difficulty complying 
with the inspection requirement, State agencies should work with State 
and local health officials to achieve compliance. In all cases, schools 
should fully document their efforts to comply with the food safety 
inspection requirement.

State and Local agencies

    FNS expects State agencies to take a leading role in ensuring that 
schools meet the food safety provision. Prompt discussion and 
cooperation among the State agency, local educational agencies, and 
State and local public health agencies is essential to minimize 
obstacles that may hinder school compliance with the inspection 
requirement. This is necessary because the law requires that school 
food safety inspections be conducted by a State or local governmental 
agency responsible for food safety inspections.

State Reporting

    The law requires the State agencies to monitor school compliance 
with the inspection requirement and to report the results to FNS for 
each of fiscal years 2006 through 2009. The reports by the State 
agencies will document the number of annual inspections obtained by 
local schools per school year and indicate nationwide compliance. The 
reports will be due to FNS by November 15 following each school year, 
which allows State agencies sufficient time to collect the inspection 
data from SFAs.
    FNS will develop a form for the States to report the aggregate data 
on inspections. A 60-day notice was published in the Federal Register 
at 70 FR 25014 on May 12, 2005 announcing the information collection 
requirement.

IV. Concerns

    This provision of the Reauthorization Act establishes a new and 
critical requirement for the school food service and for the school 
meal programs. This change in the Federal law removes the flexibility 
that existed in the previous health inspection requirement, and now 
requires that every participating school have at least two food safety 
inspections each school year. However, schools must depend on the 
specific action of another public agency, such as a local health 
department, to comply with the new inspection requirement. 
Consequently, compliance will require a commitment from Federal, State, 
and local government agencies to work cooperatively to fulfill their 
mutual responsibility to protect the health and welfare of school 
children. FNS will do everything it can to inform all parties at the 
Federal level of this important task, and expects State agencies to do 
the same across State government. School districts will need to work 
with local health authorities to construct procedures to accomplish the 
required inspections where no mechanism currently exists.
    Schools may use school food service funds to pay associated costs 
that are directly attributable to compliance with the inspection 
requirement and that are otherwise permissible as allowable costs.

V. Food Safety Resources

    FNS will continue to offer guidance and resources to strengthen 
food safety practices in schools. Because education of the food program 
staff is essential, we provide schools with material to help employees 
learn and practice food safety. FNS currently provides schools with 
publications and posters emphasizing proper food handling, employee 
personal hygiene, appropriate food temperature, cross-contamination 
prevention and other food safety topics. We will continue to work 
closely with the National Food Service Management Institute to develop 
additional technical assistance materials and training programs related 
to school food safety. ``Serving It Safe--A Manager's Tool Kit'' 
(second edition), one of the materials developed through this 
collaboration, was sent to State agencies in 2003 for distribution to 
SFAs.

VI. Procedural Matters

Regulatory Planning and Review

    This interim rule has been determined to be not significant and was 
not reviewed by the Office of Management and Budget under Executive 
Order 12866.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601-612). This rule increases the 
number of food safety inspections required for schools participating in 
the school meal programs. While this requirement imposes a reporting 
burden, it does not constitute a significant economic impact on small 
entities.

Unfunded Mandates Reform Act

    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, FNS 
must generally prepare a written

[[Page 34629]]

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 interim rule 
is not subject to the requirements of sections 202 and 205 of the UMRA.

Intergovernmental Review of Federal Programs

    The National School Lunch Program is listed in the Catalog of 
Federal Domestic Assistance under No. 10.555, and the School Breakfast 
Program is listed under No. 10.553. For the reasons set forth in the 
final rule in 7 CFR part 3015, Subpart V and related Notice (48 FR 
29115), these programs are included in the scope of Executive Order 
12372, which requires intergovernmental consultation with State and 
local officials.

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.

Prior Consultation With State and Local Officials

    Shortly after passage of the Reauthorization Act, FNS held 
discussions with State education agencies that administer child 
nutrition programs and with organizations representing State and local 
public health agencies. These discussions provided FNS an opportunity 
to inform State and local officials about the new inspection 
requirement and to hear their concerns. However, the pre-emptive status 
of the law and the requirement to implement the provision by July 1, 
2005, has precluded any need of, or opportunity for, formal 
consultation. The interim nature of this rule will, however, allow for 
changes based on local experience, provided they are consistent with 
the law.

Nature of Concerns and Need To Issue This Rule

    Several State and local officials are concerned that the increased 
inspection requirement may result in additional expenses and workload 
for schools, and for the State and local health agencies responsible 
for conducting the inspections. Although FNS is aware of the potential 
impact of this rule, it is our responsibility to carry out this 
statutory requirement aimed at improving the safety of school meals.

Extent to Which FNS Meets Those Concerns

    FNS understands the concerns of school officials and State and 
local health agencies. We provided timely information to the groups 
that will be affected by this rule and encouraged them to work together 
to remove barriers that may hinder school compliance with the 
inspection requirement.
    FNS has attempted to minimize the impact of this rule by applying 
the inspection requirement to sites rather than individual school meal 
programs, and by allowing inspections performed for purposes of the 
SFSP and CACFP to meet the requirement if they use the same food 
service facility.

Civil Justice Reform

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule has a 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 this or 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.

Civil Rights Impact Analysis

    FNS has reviewed this interim 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 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 and School Breakfast Programs.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35, see 5 CFR 
Part 1320) requires that OMB approve all collections of information by 
a Federal agency from the public 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. 
Information collections in this interim rule have been previously 
submitted to OMB for approval under OMB 0584-0006. A 60-day 
notice was published in the Federal Register at 70 FR 25014 on May 12, 
2005, which provided the public an opportunity to submit comments on 
the information collection burden resulting from this rule. This 
information collection burden has not yet been approved by OMB. FNS 
will publish a document in the Federal Register once these requirements 
have been approved.

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. FNS will examine ways to 
collect electronically the information required by this rule.

Public Participation

    FNS 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 comment. In Section 501(b) of Public Law 
108-265, Congress specifically afforded the Secretary the option of 
implementing this rulemaking without prior notice and comment. In 
addition, the provisions of this interim rule reflect mandatory 
statutory requirements which are non-discretionary. The Department is, 
however, anxious to receive comments that might improve the 
administration of these mandatory requirements.

List of Subjects

7 CFR Part 210

    Grant programs--education, Grant programs--health, Infants and 
children, Nutrition, Penalties, Reporting and recordkeeping 
requirements, School breakfast and lunch programs, Surplus agricultural 
commodities.

[[Page 34630]]

7 CFR Part 220

    Grant programs--education, Grant programs--health, Infants and 
children, Nutrition, Reporting and recordkeeping 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.


0
2. In Sec.  210.9, revise paragraph (b)(14) to read as follows:


Sec.  210.9  Agreement with State agency.

* * * * *
    (b) * * *
    (14) Maintain, in the storage, preparation and service of food, 
proper sanitation and health standards in conformance with all 
applicable State and local laws and regulations, and comply with the 
food safety inspection requirement of Sec.  210.13(b);
* * * * *

0
3. In Sec.  210.13, revise paragraph (b) to read as follows:


Sec.  210.13  Facilities management.

* * * * *
    (b) Food safety inspections. Schools shall obtain a minimum of two 
food safety inspections during each school year conducted by a State or 
local governmental agency responsible for food safety inspections. They 
shall post in a publicly visible location a report of the most recent 
inspection conducted, and provide a copy of the inspection report to a 
member of the public upon request. Sites participating in more than one 
child nutrition program shall only be required to obtain two food 
safety inspections per school year if the nutrition programs offered 
use the same facilities for the production and service of meals.
* * * * *

0
4. In Sec.  210.15,
0
a. Amend paragraph (a)(5) by removing the word ``and'' after the 
semicolon;
0
b. Amend paragraph (a)(6) by removing the period at the end and adding 
in its place a semicolon followed by the word ``and'';
0
c. Add a new paragraph (a)(7);
0
d. Amend paragraph (b)(4) by removing the period at the end and adding 
in its place a semicolon followed by the word ``and''; and
0
e. Add a new paragraph (b)(5).
    The additions read as follows:


Sec.  210.15  Reporting and recordkeeping.

    (a) * * *
    (7) The number of food safety inspections obtained per school year 
by each school under its jurisdiction.
    (b) * * *
    (5) Food safety inspection records to demonstrate compliance with 
Sec.  210.13(b).

0
5. In Sec.  210.20:
0
a. Amend paragraph (a)(6) by removing the word ``and'' after the 
semicolon;
0
b. Amend paragraph (a)(7) by removing the period at the end and adding 
in its place a semicolon followed by the word ``and'';
0
c. Add a new paragraph (a)(8);
0
d. Amend paragraph (b)(10) by removing the word ``and'' after the 
semicolon;
0
e. Amend paragraph (b)(11) by removing the period at the end and adding 
in its place a semicolon followed by the word ``and''; and
0
f. Add a new paragraph (b)(12).
    The additions read as follows:


Sec.  210.20  Reporting and recordkeeping.

    (a) * * *
    (8) Results of the State agency's review of schools' compliance 
with the food safety inspection requirement in Sec.  210.13(b) by 
November 15 following each of school years 2005-2006 through 2008-2009, 
beginning November 15, 2006. The report will be based on data supplied 
by the school food authorities in accordance with Sec.  210.15(a)(7).
    (b) * * *
    (12) Records supplied by the school food authorities showing the 
number of food safety inspections obtained by schools for each of 
school years 2005-2006 through 2008-2009.

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.


0
2. In Sec.  220.7:
0
a. Redesignate paragraphs (a-1) and (a-2) as paragraphs (a)(1) and 
(a)(2);
0
b. Revise the newly designated paragraph (a)(2); and
0
c. Revise paragraph (e)(8).
    The revisions read as follows:


Sec.  220.7  Requirements for participation.

    (a) * * *
    (2) Schools shall obtain a minimum of two food safety inspections 
per school year conducted by a State or local governmental agency 
responsible for food safety inspections. Schools participating in more 
than one child nutrition program shall only be required to obtain a 
minimum of two food safety inspections per school year if the food 
preparation and service for all meal programs take place at the same 
facility. Schools shall post in a publicly visible location a report of 
the most recent inspection conducted, and provide a copy of the 
inspection report to a member of the public upon request.
* * * * *
    (e) * * *
    (8) Maintain, in the storage, preparation and service of food, 
proper sanitation and health standards in conformance with all 
applicable State and local laws and regulations, and comply with the 
food safety inspection requirement in paragraph (a)(2) of this section;
* * * * *

0
3. In Sec.  220.13, add paragraph (b)(3) to read as follows:


Sec.  220.13  Special responsibilities of State agencies.

* * * * *
    (b) * * *
    (3) For each of school years 2005-2006 through 2008-2009, each 
State agency shall monitor school food authority compliance with the 
food safety inspection requirement in Sec.  220.7(a)(2) and submit an 
annual report to FNS documenting school compliance based on data 
supplied by the school food authorities. The report must be filed by 
November 15 following each of school years 2005-2006 through 2008-2009, 
beginning November 15, 2006. The State agency shall keep the records 
supplied by the school food authorities showing the number of food 
safety inspections obtained by schools for each of school years 2005-
2006 through 2008-2009.
* * * * *

    Dated: May 25, 2005.
Roberto Salazar,
Administrator, Food and Nutrition Service.
[FR Doc. 05-11805 Filed 6-14-05; 8:45 am]
BILLING CODE 3410-30-P