[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Rules and Regulations]
[Pages 45305-45307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21133]



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

[[Page 45305]]



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, self-inspections, 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:
    <bullet> Allow agencies responsible for food inspections to assess 
the need for additional school inspections.
    <bullet> 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.
    <bullet> Allow schools to do self-inspections based on standards 
established by the inspection agency.
    <bullet> Instead of a second inspection, require school food 
service staff to be certified in food safety principles.
    <bullet> 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.
    <bullet> Provide funding to meet all requirements established by 
Public Law 108-265.
    <bullet> 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.

[[Page 45306]]

    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

[[Page 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]
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