This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

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Rules and Regulations Federal Register

45305 

Vol. 74, No. 169 

Wednesday, September 2, 2009 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Parts 210 and 220 

[FNS–2005–0002] 

RIN 0584–AD64 

School Food Safety Inspections 

AGENCY: Food and Nutrition Service 

(FNS), USDA. 

ACTION: Final rule. 

SUMMARY: This final rule adopts without 

change the food safety inspections 

requirements for the National School 

Lunch Program (NSLP) and the School 

Breakfast Program (SBP) set forth in a 

previous interim rule issued by the 

Food and Nutrition Service as a result 

of the Child Nutrition and WIC 

Reauthorization Act of 2004. Schools 

participating in the lunch and breakfast 

programs must obtain two inspections 

per year, post the most recent inspection 

report in a visible location, and release 

a copy of the report to members of the 

public upon request. This rule enhances 

the safety of over 38 million meals 

served to school children daily. 

DATES: This final rule is effective 

October 2, 2009. 

FOR FURTHER INFORMATION CONTACT: 

William Wagoner or Marisol Benesch, 

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 (Pub. 

L. 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 

school 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 submit to the Food and Nutrition 

Service (FNS) the number of inspections 

obtained by schools for each of fiscal 

years 2006 through 2009. These 

statutory requirements became effective 

July 1, 2005. 

To implement the above 

requirements, FNS published an interim 

rule in the Federal Register on June 15, 

2005 (70 FR 34627) and received a total 

of 75 public comments (59 from school 

food authorities (SFAs) or school 

districts, 3 from State agencies (SAs), 5 

from regulatory agencies responsible for 

food safety inspections, and 8 from 

other individuals). 

II. Public Comments 

The main comments or concerns are 

the following: 

Need for Second Inspection 

Most commenters stated that the 

second inspection is not necessary 

because school cafeterias are safe places 

to eat, with well-trained staff and/or a 

manager who is certified in safe food 

handling practices. 

Inspection Cost 

Commenters noted that funds to pay 

for the second inspection and to 

increase inspection staff were not 

provided by law. For some schools, 

expanding the inspection requirement 

has more than doubled the cost for food 

safety inspections. 

Risk Assessment 

Commenters said that State/local 

regulatory agencies should assess the 

risk level that school food operations 

present and establish the frequency of 

inspections. Some said that schools 

rarely have critical violations and that 

regulatory agencies need to focus their 

resources on high risk food 

establishments. 

Reporting Requirement 

One commenter mistakenly thought 

that SFAs are required to send paper 

copies of the inspection reports to the 

SA. Another commenter stated that 

collecting data for the required SA 

report on the number of inspections 

obtained by schools has no practical 

utility for the SA and results in 

additional paperwork and costs. One 

commenter, however, indicated that 

data collected for the report could be 

useful for planning food safety training 

activities. 

Operational Issues 

In some SFAs, the requirement for a 

second inspection has created issues or 

questions surrounding inspection fees, 

scope of the second inspection, selfinspections, and third-party inspections. 

Some States exempt schools from 

paying food service license fees, which 

limits the ability of the regulatory 

agencies to financially support school 

inspections. Commenters noted that in 

large counties and in rural areas where 

schools are spread apart, it is difficult 

for schools to obtain a second food 

safety inspection. 

III. Suggestions 

Although most commenters opposed 

the increased inspection requirement, a 

number of them offered the following 

suggestions: 

• Allow agencies responsible for food 

inspections to assess the need for 

additional school inspections. 

• Exempt individual schools from the 

second inspection if they have no major 

violations on the initial inspection or if 

they have a food safety program based 

on Hazard Analysis and Critical Control 

Point (HACCP) principles. 

• Allow schools to do self-inspections 

based on standards established by the 

inspection agency. 

• Instead of a second inspection, 

require school food service staff to be 

certified in food safety principles. 

• Minimize the burden of information 

collection on the respondent schools by 

allowing the SAs to collect the 

inspections data as part of an existing 

data collection system. 

• Provide funding to meet all 

requirements established by Public Law 

108–265. 

• A director of a local health 

department recommended that school 

inspections should only be conducted 

by the State regulatory agencies. The 

commenter noted that the Food and 

Drug Administration Food Code is 

adopted by a State and, typically, not by 

local government. The commenter also 

said that self-inspections should not be 

allowed because a third-party review of 

the sanitation conditions in kitchens is 

needed. 


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45306 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 

Furthermore, the commenter said the 

second inspection should not be a 

routine food safety inspection, and 

instead it should be a validation of an 

effective HACCP-based food safety 

program by a third party such as the 

State regulatory agency, State-approved 

local governmental agency, or a private 

consultant. 

IV. FNS Response 

Food safety has always been a priority 

for the Child Nutrition Programs. 

Parents, the public and Congress also 

have a strong interest in the safety of 

lunches and breakfasts served to 

millions of school children daily. The 

2005 Dietary Guidelines for Americans, 

which is the nutritional foundation of 

the school meal programs, emphasizes 

food safety as well. 

Increasing food safety inspections to 

two per school year should help 

program operators identify and correct 

food safety problems faster, thereby 

enhancing food safety in meal 

preparation and service sites. We 

recognize that obtaining two food safety 

inspections annually may be difficult 

for a limited number of schools. 

However, the reports submitted by the 

State agencies for school years 2005– 

2006, 2006–2007, and 2007–2008 show 

an increase in the number of schools 

meeting the twice annual inspection 

requirement. The compliance rate 

increased from 58 percent in school year 

2005–2006 to 70 percent in school year 

2007–2008. This increase was possible 

with FNS’ outreach efforts and the 

collaboration between State/local 

program operators and inspecting 

agencies. 

Prior to Public Law 108–265, the 

NSLA statutory provisions and NSLP 

and SBP regulatory provisions required 

schools to obtain at least one school 

food safety inspection per year, or more 

if mandated by a State or local agency 

responsible for food safety inspections. 

In Public Law 108–265, Congress 

preempted the mandates of State and 

local agencies to determine the number 

of food safety inspections required for 

schools operating the NSLP and SBP. 

FNS does not have authority to waive 

the food safety requirements for 

individual schools because of food 

safety certification or implementation of 

a HACCP-based food safety program. 

Public Law 108–265 established food 

safety requirements that apply 

uniformly to all schools participating in 

the NSLP and SBP. Furthermore, food 

safety inspections and a HACCP-based 

food safety program are two separate but 

complementary statutory requirements. 

Despite the noted cost and 

administrative burden that may result 

from the additional inspection, there is 

a need to require high food safety 

standards in the NSLP and SBP. These 

school meal programs serve over 38 

million lunches and breakfasts daily to 

children ages 2 and above. A foodborne 

illness in the school meal programs 

could have devastating consequences, as 

young children are particularly 

vulnerable. 

This final rule retains the authority of 

the State and local regulatory agencies 

to determine the nature and scope of 

each school food safety inspection. 

However, a follow-up inspection due to 

critical violations discovered at the first 

inspection does not qualify as a second 

annual inspection. Self-inspections are 

not qualified inspections, per the 

regulatory language. The inspections 

must be conducted by a State or local 

agency responsible for inspections, or 

by another entity formally authorized by 

the State/local regulatory agency. 

Regarding the reporting requirement, 

SAs are only required to collect the 

number of inspections obtained by 

schools during the school year and 

transmit this data to FNS. This 

information allows the SA and FNS to 

monitor the level of compliance with 

this requirement and detect any 

problems associated with it. FNS 

provides the SAs a simple optional 

template to transmit the inspections 

data electronically. 

We are aware that in some states the 

state or local agency responsible for 

inspections transmits the inspection 

data directly to the SA. Although this 

arrangement is acceptable to FNS, this 

rule does not place any responsibility 

on the inspecting agency to provide 

such information to the SA or to 

develop a specific tracking and 

reporting system for this purpose. 

In summary, this final rule adopts 

without change the requirements set 

forth in the interim rule published on 

June 15, 2005 at 70 FR 34627 and thus 

reflects the statutory requirements in 

Public Law 108–265. 

IV. Procedural Matters 

Executive Order 12866 

This rule has been determined to be 

not significant and was not reviewed by 

the Office Management and Budget in 

conformance with 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). It has been certified that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. This rule 

increases the number of food safety 

inspections in schools participating in 

the National School Lunch Program and 

School Breakfast Program. 

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 

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 

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 Public Law 

108–265, FNS held discussions with 


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Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 45307 

State education agencies that administer 

child nutrition programs and with 

organizations representing State and 

local inspection agencies. These 

discussions provided FNS an 

opportunity to inform State and local 

officials about the new inspection 

requirement and to hear their concerns. 

FNS also issued an interim rule to 

solicit pubic comments. 

Nature of Concerns and Need To Issue 

This Rule 

The main concern of the State and 

local program operators and inspection 

agencies is the cost associated with the 

increased inspection requirement. Some 

schools now have to pay or pay more for 

the food safety inspections, and some 

inspection agencies have limited staff to 

handle the increased inspection load. 

Although we are aware that compliance 

with this requirement may still be 

difficult in some areas, it is our 

responsibility to implement these 

mandatory statutory requirements 

which are non-discretionary. 

Extent to Which FNS Meets Those 

Concerns 

FNS has considered the comments 

and suggestions offered by State and 

local program operators, inspection 

agencies and others, but we are unable 

to make changes that are inconsistent 

with the inspection requirement as 

prescribed by the law. We will continue 

to provide information and guidance to 

those affected by this rule and to 

encourage regulatory agencies to help 

schools comply with this rule. 

To minimize the impact of this rule, 

FNS will continue to apply the 

inspections requirement to preparation 

and service sites rather than to 

individual meal programs (NSLP and 

SBP). FNS will allow inspections 

performed under the Summer Food 

Service Program and the Child and 

Adult Care Food Program to count 

toward this requirement if all the meal 

programs use the same food service 

facility. 

Executive Order 12988 

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 rule. Prior to any 

judicial challenge to the provisions of 

this rule or the application of its 

provisions, all applicable administrative 

procedures under section 210.18(q) 

must be exhausted. 

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, age 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. The 

information collection requirements 

associated with this action were 

approved by the Office of Management 

and Budget on May 29, 2009 under 

OMB Control Number 0584–0006, 

Expiration date May 31, 2012, which 

contains the information collection 

activities in the NSLP. 

The entire School Food Safety 

Inspection data collection burden for 

both NSLP and SBP operators is 

contained only in OMB Control Number 

0584–0006 and not the SBP (OMB 

Control Number 2, Expiration May 31, 

2012) because the NSLP is a larger 

nutrition program and food safety 

inspections conducted in the NSLP 

count toward the inspection 

requirement in both meal programs. The 

burden hours estimate provided in the 

notice of proposed information 

collection published on May 12, 2005 

(70 FR 25014) has increased from 

9,483,231 to 9,558,282 due to an 

adjustment in the number of School 

Food Authorities and schools 

participating in the NSLP and SBP. 

E-Government Act Compliance 

FNS is committed to compliance with 

the E-Government Act (E-Gov), 2002 

which requires Government agencies to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. FNS has requested that 

State agencies submit electronically the 

inspections report required by this rule. 

Public Participation 

In Section 501(b) of Public Law 108– 

265, Congress specifically afforded the 

Secretary the option to implement the 

inspections requirement through an 

interim rule, while soliciting public 

comments. State and local program 

operators and inspection agencies 

commented on the interim rule 

published in the Federal Register (70 

FR 34627) on June 15, 2005. 

List of Subjects 

7 CFR Part 210 

Food and Nutrition Service, Grant 

programs—education, Grant programs— 

health, Infants and children, Nutrition, 

Penalties, Reporting and recordkeeping 

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 recordkeeping 

requirements, School breakfast and 

lunch programs. 

Accordingly, the interim rule that was 

published at 70 FR 34627 on June 15, 

2005 amending 7 CFR parts 210 and 220 

is adopted as a final rule without 

changes. 

Dated: August 24, 2009. 

Julia Paradis, 

Administrator, Food and Nutrition Service. 

[FR Doc. E9–21133 Filed 9–1–09; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 1 and 33 

[Docket No. 2007–28502; Amendment No. 

1–65, 33–30] 

RIN 2120–AJ06 

Airworthiness Standards; Aircraft 

Engine Standards Overtorque Limits 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This rule will amend the 

certification standards for aircraft 

engines to establish requirements for 

approval of maximum engine 

overtorque. Specifically, this action will 

add a new engine overtorque test, 

amend engine ratings and operating 

limits, and define maximum engine 

overtorque for certain turbopropeller 

and turboshaft engines. The rule will 


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