This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

10981 

Vol. 77, No. 37 

Friday, February 24, 2012 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Parts 211 and 235 

RIN 0584–AD96 

Fresh Fruit and Vegetable Program 

AGENCY: Food and Nutrition Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

establish the basic requirements for the 

operation of the Fresh Fruit and 

Vegetable Program (FFVP) in 

conformance with the Richard B. 

Russell National School Lunch Act. It 

would set forth administrative and 

operational requirements for FFVP 

operators at the State and local levels. 

The intent of these provisions is to 

ensure that the FFVP encourages the 

consumption of fresh fruits and 

vegetables by elementary school 

children, thus improving their dietary 

habits and long-term health. 

DATES: To be assured of consideration, 

comments on this proposed rule must 

be received by the Food and Nutrition 

Service on or before April 24, 2012. 

ADDRESSES: The Food and Nutrition 

Service (FNS) invites interested persons 

to submit comments on this proposed 

rule. Comments may be submitted by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Send comments to Julie 

Brewer, Chief, Policy and Program 

Development Branch, Child Nutrition 

Division, Food and Nutrition Service, 

USDA, 3101 Park Center Drive, Room 

634, Alexandria, Virginia 22302, (703) 

703–305–2590. 

All comments submitted in response 

to this proposed rule will be included 

in the record and will be made available 

to the public. Please be advised that the 

substance of the comments and the 

identities of the individuals or entities 

submitting the comments will be subject 

to public disclosure. All written 

submissions will be available for public 

inspection at the address above during 

regular business hours (8:30 a.m. to 

5 p.m.) Monday through Friday. 

FOR FURTHER INFORMATION CONTACT: Jim 

Herbert, Chief, Policy and Program 

Development Branch, Child Nutrition 

Division, Food and Nutrition Service, 

USDA, 3101 Park Center Drive, Room 

634, Alexandria, Virginia 22302; 

telephone: (703) 305–2572. 

SUPPLEMENTARY INFORMATION: 

Background 

The FFVP began as a pilot program 

funded by the Farm Security and Rural 

Investment Act of 2002 (Pub. L. 107– 

171) to determine the best practices for 

increasing fruit (both fresh and dried) 

and fresh vegetable consumption in 

schools. The pilot program limited 

participation to a maximum of 25 

schools per state. Selected primary and 

secondary schools in Indiana, Ohio, 

Michigan, Iowa and the Zuni Tribe of 

New Mexico participated in the pilot 

and were provided funds to purchase 

and serve free fruits and vegetables 

during school year 2002–2003. An 

evaluation conducted after the first year 

of operation disclosed that schools 

considered the pilot to be a success and 

wanted to continue the Program beyond 

the pilot if funding were provided. The 

pilot demonstrated student acceptance 

and interest in fresh fruit and vegetable 

consumption. 

The pilot’s success led to expansion 

of the FFVP. Congress viewed the 

continuation and expansion of the pilot 

as a positive step to combat childhood 

overweight and obesity. The Child 

Nutrition and WIC Reauthorization Act 

of 2004 (Pub. L. 108–265) added 

Pennsylvania, North Carolina, 

Mississippi, and Washington, and two 

Indian Tribal Organizations in South 

Dakota and Arizona starting in school 

year 2004–2005. In addition, the 

Reauthorization Act of 2004 

permanently authorized the FFVP in 

those States by adding section 18(g), the 

Fresh Fruit and Vegetable Program, to 

the Richard B. Russell National School 

Lunch Act (NSLA). Section 18(g) 

required, to the maximum extent 

practicable, the selection of low-income 

schools and established the statutory 

requirements for FFVP operation. 

In 2006, the Agriculture, Rural 

Development, Food and Drug 

Administration, and Related Agencies 

Appropriations Act (Pub. L. 109–97), 

provided one-time funding to further 

expand the FFVP to Utah, Wisconsin, 

New Mexico, Texas, Connecticut and 

Idaho for one year. Subsequently, the 

Consolidated Appropriations Act of 

2008 (Pub. L. 110–161) provided one 

time funding to expand the FFVP to add 

non-participating States, allowed FNS to 

reallocate recovered FFVP funds from 

previous years and for the first time 

provided funds for the Federal 

administration of the FFVP. 

The Food, Conservation and Energy 

Act of 2008 (Pub. L. 110–234), also 

known as the Farm Bill, continued the 

Program and, most significantly, 

permanently authorized the FFVP as a 

nationwide program. In addition, other 

important changes were also made to 

the FFVP. It eliminated references to the 

FFVP in section 18(g) of the NSLA and 

transferred the program authorization 

and all operational procedures to 

section 19 of the NSLA. It established 

selection criteria, requiring State 

agencies to conduct outreach to schools 

serving low income students and to 

select those schools with the highest 

number of students certified for free or 

reduced-price meals for participation in 

the FFVP. It also provided a significant 

funding increase, established a funding 

formula, and, for the first time, provided 

funds for States to administer the FFVP. 

The statute also made dried fruit 

ineligible to be served in the Program. 

Prior to the 2008 Farm Bill, the FFVP 

was available to secondary schools. The 

2008 Farm Bill limited program 

participation to elementary schools 

beginning in school year 2010–2011. 

Additionally, the number of schools that 

a State agency can select to participate 

in the FFVP is no longer limited to 25 

schools per state as was required in the 

pilot program and subsequent 

legislation. The Program continues to 

operate on a reimbursement basis and 

many of the responsibilities of the State 

agencies remain the same. 

Based upon the record of continued 

support and expansion of the FFVP, the 

Program is highly regarded by Members 

of Congress, nutrition advocates, the 

health care community, parents and 

students. It is perceived as an effective 

strategy to help school children develop 

positive dietary habits during their 

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10982 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 

1Lauren Olsho, Jacob Klerman, and Susan 

Bartlett, Food and Nutrition Service Evaluation of 

the Fresh Fruit and Vegetable Program (FFVP): 

Interim Evaluation Report. Abt Associates, 

September 2011. http://www.fns.usda.gov/ora/ 

MENU/Published/CNP/cnp.htm. 

formative years. The Program is also of 

interest to farm to school advocates 

because it provides opportunities to link 

schools with local farms and increase 

children’s access to fresh fruit and 

vegetables in schools. Most children do 

not achieve the recommended intakes of 

fruits and vegetables. Fruits and 

vegetables provide a variety of 

micronutrients and fiber and, therefore, 

are one of the key food groups 

emphasized by the 2010 Dietary 

Guidelines for Americans to maintain 

overall health and reduce the risk of 

chronic diseases, overweight and 

obesity. 

The Farm Bill directed FNS to 

conduct an evaluation of the FFVP. The 

principle objectives of this evaluation 

are to determine whether children 

increase consumption of fruits and 

vegetables as a result of their 

participation in the FFVP and 

experience other dietary changes, such 

as a decrease in the consumption of less 

nutritious foods, as a result of their 

FFVP participation. Additionally, the 

evaluation will look at FFVP 

implementation and assess the role that 

additional factors—such as 

characteristics of schools selected for 

the program, method of fruit and 

vegetable distribution, level and role of 

nutrition education, etc.—may have 

with regard to the FFVP’s impact on the 

dietary intake of participating children. 

An interim evaluation report was 

delivered to Congress in September.1

That report finds that students consume 

an additional 1⁄4 cup of fruits and 

vegetables, on average, on days when 

the program is operating. That is nearly 

15 percent higher than average fruit and 

vegetable consumption of children in 

non-FFVP schools. In addition, the 

report finds no statistically significant 

increase in total calorie consumption by 

program participants. That finding 

suggests that fruits and vegetables are 

replacing other foods in the diets of 

participating children, rather than 

adding excess calories. The report is 

available on the FNS Web site at 

http://www.fns.usda.gov/ora/MENU/ 

Published/CNP/cnp.htm. 

Major Provisions of the Proposed Rule 

This proposed rule reflects the 

statutory requirements found in section 

19 of the NSLA and the policy 

memoranda issued by FNS to 

implement the changes prompted by the 

2008 Farm Bill. Although the statutory 

requirements are already implemented, 

this proposed rule would set forth the 

regulatory requirements which will be 

codified upon adoption of a final rule. 

This preamble also discusses a few 

additional parameters established by 

FNS to ensure that the FFVP is 

administered similarly to the National 

School Lunch Program (NSLP) and 

School Breakfast Program (SBP), when 

appropriate, and in accordance with 

applicable Federal requirements. 

This proposed rule would establish 

requirements for the administration and 

operation of the FFVP consistent with 

section 19 of the NSLA. FNS is seeking 

public comments that will help the 

agency establish regulatory 

requirements that reflect the intent of 

the law and are feasible for States and 

local program operators. Following the 

public comment period, FNS will issue 

a final rule to codify the program 

requirements in Title 7, Part 211 of the 

Code of Federal Regulations. While the 

rulemaking process is underway, State 

and local operators must continue to 

follow implementation memoranda and 

guidance materials issued by FNS based 

on section 19 of the NSLA. 

Program Administration 

Addendum to the Federal/State 

Agreement 

The FFVP is administered by FNS in 

collaboration with the State agencies 

responsible for the NSLP. In cases in 

which the State agency is not permitted 

by their State law to disburse funds paid 

to it under the Richard B. Russell 

National School Lunch Act (42 U.S.C. 

1759), administration of the Program 

shall be in accordance with § 210.3 of 

the NSLP regulations. Section 211.3(b) 

of this proposed rule would require 

each State agency to amend its 

permanent Federal/State agreement to 

include administration of the FFVP. 

State agencies may use the prototype 

addendum in FNS memorandum SP 31– 

2008, which was issued to the State 

agencies on July 11, 2008. The FFVP 

would be administered by the State 

agencies as the NSLP and the SBP are 

administered. Unlike the pilot, during 

which State agencies worked directly 

with participating schools, this 

proposed rule requires that the State 

agencies work with School Food 

Authorities (SFAs) that are charged with 

administering the FFVP in the State. 

SFAs would be responsible for 

administering the program in their 

participating schools, including training 

such schools in the requirements of the 

Program as well as approving, 

consolidating and submitting monthly 

reimbursement claims to the State 

agency for all participating schools, as 

they do in the NSLP and the SBP. 

Funding 

Program funding is available to all 

State agencies on a school year basis to 

reimburse school food authorities for 

the service of fresh fruit and vegetables 

in selected elementary schools. Section 

19 of the NSLA provides funding as 

follows: $101 million for school year 

2010–2011; and $150 million for school 

year 2011–2012. For the subsequent 

school years, funding is based on the 

amount received in the preceding year, 

adjusted to reflect changes in the 

Consumer Price Index for the 12-month 

period ending the preceding April 30. 

Funds for Federal administration of the 

Program ($500,000) are deducted from 

the available funding before allocating 

funds to each State agency. 

The amount received by each State 

agency is based on the funding formula 

established in section 19 of the NSLA, 

which provides a minimum annual 

grant of 1 percent of the available funds 

to each State and the District of 

Columbia. Remaining funds are 

allocated to each State, the District of 

Columbia, Guam, Puerto Rico and the 

Virgin Islands based on the percentage 

of their population in relation to the 

United States total population. In States 

in which FNS administers the program 

in some or all schools, FNS shall have 

available applicable funds to administer 

and operate the program. In terms of 

administrative funds, it is proposed that 

for FNS Regional Office Administered 

Programs (ROAPs), funding for the 

FFVP would be determined by the 

proportion of the number of schools 

participating in the FFVP administered 

by the State agency compared to the 

number of schools participating in the 

FFVP administered by the FNS Regional 

Office. The funding provisions are in 

§ 211.4 of the proposed regulatory text. 

Under the proposed rule, each State 

agency would determine how to 

administer the FFVP within its existing 

personnel structure, workload, and 

other factors. A State agency would be 

allowed to set aside a portion of their 

total annual grant to cover the cost of 

State agency administration of the 

Program. As stated in § 211.6 of the 

proposed regulatory text, such an 

amount would be the lesser of 5 percent 

of the State agency’s total FFVP funding 

for the school year or the amount 

required to pay the cost of one full-time 

coordinator for the Program, as included 

in the language of the Farm Bill. These 

options are intended to assist the State 

agency in developing a reasonable 

estimate for State agency costs of 

administering the FFVP. However, the 

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statute does not require that the State 

agency employ a full-time program 

coordinator. The amount of funds 

required for State administrative costs 

would have to be determined prior to 

selecting schools or allocating FFVP 

funds for schools. A State agency would 

also have the option of retaining no 

FFVP funds for State administrative 

costs, or may retain less State 

administrative funding than the formula 

allows, in order to increase the 

availability of Program funds for the 

purchase of fresh fruits and vegetables 

by the schools. In addition, this rule 

proposes to amend 7 CFR part 235, State 

Administrative Expense Funds, to allow 

the use of SAE funds for the 

administration of the FFVP. The FFVP 

is an eligible program, since it is 

authorized under the NSLA. If such 

funds are used for the administration of 

the FFVP, all necessary requirements for 

the use of such funds shall be followed 

in accordance with 7 CFR part 235. 

To enable State agencies to administer 

the Program on a fiscal year basis, like 

other Child Nutrition Programs, FNS 

would provide Program funds in two 

allocations on or around July 1st and 

October 1st of each year. The July 

allocation would be a small portion of 

each State’s total allocation and would 

reflect what the State and schools 

anticipate that they will expend or 

obligate for the first quarter of the 

school year. The October allocation 

would consist of the remaining balance 

of the State’s grant. States would be 

required to expend or obligate the July 

and October allocations by the following 

September 30. For example, funds 

allocated to the States on July 1, 2011 

would have to be obligated or expended 

by September 30, 2011 (the following 

September 30). Subsequent funds 

allocated in October of 2011 shall be 

obligated or expended by the following 

September 30, 2012. A state’s 

unobligated funds would be returned to 

the Program and reallocated at a later 

date. . The provisions on funding 

allocation are found in § 211.5 of the 

proposed regulatory text. 

As provided by statute, each State 

agency will determine the distribution 

of funds to each school and provide 

Program funding to those schools 

through the SFAs. Each school selected 

to participate in the FFVP would be 

allotted funds based on a per-student 

amount. As required by the statute, 

funding for participating schools must 

equal an amount of no less than $50 and 

not more than $75 per child per school 

year. Schools would be required to 

submit expenditure data to the SFA. 

SFAs would be required to consolidate 

school expenditure information and 

submit their claims for reimbursement 

to the State agency on a monthly basis. 

As provided in § 211.5(a)(1)(iii) and 

§ 211.5(a)(2)(ii), respectively, 

participating SFAs must ensure that 

funds are allocated to participating 

schools for the school year and any 

unobligated or unspent funds will be 

recovered for reallocation in a future 

school year. 

Outreach to Schools Serving Low 

Income Children 

Prior to selecting schools for 

participation in the Program, section 19 

of the NSLA requires that each State 

agency conduct outreach to schools 

serving the highest percentage of 

children certified for free and reduced 

price meals. Outreach would be 

conducted on a schedule that would 

enable the school application and 

selection processes to be completed in 

a timely manner to ensure that the 

selected schools are able to offer the 

Program at the start of the school year. 

It is recognized that available funding 

may not be sufficient to institute the 

FFVP in each of the schools that have 

a student population where at least 50 

percent of the enrolled students are 

certified eligible for free or reduced 

price school meals. Since the statute 

requires that participation priority be 

given to schools serving the highest 

percentage of free and reduced price 

certified students, State agencies should 

rank their schools starting with those at 

which 100 percent of the students are 

certified for free and reduced-price 

meals down to those in which 50 

percent of the students are certified for 

free and reduced-price meals in order to 

actively target the most needy schools. 

In States in which FNS operates 

Regional Office Administered Programs 

(ROAPs), it is proposed that the State 

agency coordinate the ranking of 

schools with FNS to determine the 

number of ROAP schools that may be 

eligible for the FFVP in the State and for 

which outreach activities shall be 

targeted. States may actively target those 

elementary schools with the highest 

need to encourage participation in the 

Program. States that have more lowincome elementary schools than could 

possibly be funded may choose to 

contact only those schools with the 

highest documented need. Schools with 

fewer than 50 percent of their students 

certified for free and reduced-price 

meals that meet the other FFVP 

eligibility criteria would only be 

considered for participation in the 

Program after all schools with higher 

documented percentages of free and 

reduced price student populations that 

applied for FFVP have been selected for 

participation in the Program. Section 

211.10(c)(2) proposes that such schools 

must be ranked in order of the 

percentage of free and reduced price 

certified students that they serve and be 

selected for participation in the FFVP 

on that basis. 

Targeting schools with the highest 

need is one of the key statutory 

requirements in section 19 of the NSLA. 

Compliance with this requirement is 

nondiscretionary. This statutory 

requirement cannot be waived to give 

all schools in a State an equal chance to 

participate in the Program or to avoid 

restricting the Program to a few areas. 

Requiring outreach to schools that serve 

low income children is feasible because 

State agencies have access to the free 

and reduced-price data from all 

participating SFAs and should be able 

to easily target the elementary schools 

with the highest need. The SFAs may 

assist the State agencies with this 

outreach process. The outreach 

provision is found in § 211.10 of the 

proposed regulatory text. 

School Selection 

The intent of Congress to target 

Program participation to those 

elementary schools that serve the 

highest percentage of low income 

students precludes the use of a 

competitive process for selecting 

schools for participation in the FFVP. 

State agencies would be required to use 

the criteria specified in § 211.10 to 

select schools for participation in the 

Program. An inadequate or incomplete 

application from a school with a high 

free and reduced price certified 

enrollment may not be a reason to reject 

an application from such a school. As 

part of the outreach effort, a State 

agency would be required to assist 

eligible schools in meeting the 

application requirements for 

participation. However, SFAs or schools 

that have been documented as being 

deficient in managing FNS programs or 

there have been administrative findings 

documenting violations of the 

requirements of any FNS programs shall 

not be authorized to operate the FFVP. 

Each State agency would be 

responsible for ensuring that the FFVP 

reaches elementary schools with the 

highest percentage of students certified 

as eligible for free and reduced-price 

meals. This is a key, nondiscretionary 

selection criterion that ensures that 

Program benefits are targeted in 

accordance with Congressional intent. 

In order to determine the number of 

elementary schools that can be funded 

each year, section 19 of the NSLA 

requires State agencies to establish a 

per-student allocation. As required by 

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10984 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 

law, the per-student allocation shall not 

be less than $50 or more than $75 per 

school year. The State agency would be 

allowed to set a different per-student 

allocation for participating schools 

provided that the amount allotted per 

student is within the $50–$75 range 

established by law and the rationale for 

the differing allocations can be 

provided. In States in which FNS 

administers the program, ROAP schools 

in the State must be included when 

establishing such per-student funding 

allocations. 

In summary, a State agency would 

need to consider the following criteria 

when selecting schools for participation 

in the Program: 

• Only elementary schools that offer 

the NSLP may participate in the FFVP; 

• Eligible schools must have at least 

50 percent or more of their students 

certified as eligible for free and reducedprice school meals, except for those 

situations provided for in § 211.10(c)(2); 

• Priority must be given to 

elementary schools with the highest 

need based upon the percentage of free 

and reduced-price children; 

• Schools must submit an application 

for participation in the FFVP; and 

• Schools must not have been 

documented as being deficient in 

managing any FNS program or there are 

no outstanding administrative findings 

documenting violations of the 

requirements of any FNS program. 

Claims for Reimbursement 

Prior to submission of a consolidated 

claim for reimbursement to the State 

agency, the SFA would review the FFVP 

expenditure information submitted to 

them by the participating schools to 

ensure that the FFVP expenses 

submitted by the schools are allowable. 

SFAs are required to maintain 

appropriate records to substantiate the 

claims submitted for reimbursement. As 

stated in § 211.9 of the proposed 

regulatory text, upon review, the State 

agency would be able to disallow 

payment for unallowable costs or 

disallow any claim that is otherwise 

inconsistent with the Program 

requirements. 

Program Assistance and Monitoring 

Other State agency functions would 

involve standard procedures found in 

all Child Nutrition Programs designed to 

ensure efficiency and integrity. As 

stated in § 211.14 of the proposed 

regulatory text, the State agency would 

be required to provide training and 

technical assistance to enable schools to 

operate the Program correctly. The State 

agency would review a participating 

school in conjunction with any 

administrative review or oversight 

activity they may conduct under the 

NSLP or SBP. FNS intends to provide 

guidance to facilitate State agency 

reviews of the FFVP. 

Since the FFVP is a relatively simple 

program and FNS has already provided 

ample technical assistance and guidance 

through memoranda, conference calls, 

webinars and annual conferences, we 

expect minor need for corrective action 

and anticipate that technical assistance 

will suffice in most cases. However, this 

proposed rule would give the State 

agency authority to withhold payment 

and to suspend or terminate a school’s 

participation in the FFVP due to 

repeated failure to meet Program 

requirements. See § 211.15 and § 211.16 

of the proposed regulatory text. 

Reporting and Recordkeeping 

The State agency would be required to 

submit an annual report disclosing the 

number of schools that applied and the 

number of schools selected, the 

enrollment and percentage of free and 

reduced-price participation for each 

selected school as well as the per 

student allocation being made to each 

selected school. In addition, the State 

agency must provide the number of 

schools that applied for participation 

and were not selected and the 

percentage of certified free and reduced 

price eligible students served by such 

schools. This information would 

demonstrate that the Program is 

reaching schools with the highest need. 

The State agency would also be required 

to submit a quarterly financial status 

report (currently the SF–425) via the 

Food Programs Reporting System 

(FPRS). The SF–425 has been 

designated in FPRS for the FFVP. A 

final financial status report (SF–425) 

would also be submitted for each fiscal 

year. State agency recordkeeping 

retention requirements would be for the 

same period of time required in the 

NSLP, i.e., a minimum of three years. 

The proposed reporting and 

recordkeeping provisions are in § 211.11 

of the proposed regulatory text. 

Program Operation 

Agreement With State Agency 

An SFA is responsible for the 

operation of the FFVP in schools within 

its jurisdiction. SFAs would enter into 

a written agreement, or amend an 

existing written agreement, with the 

State agency to offer the FFVP in the 

selected schools in conformance with 

the requirements established by law, 

regulations and FNS guidance that 

reflects current program operations. As 

part of the agreement, the SFA would 

commit to using funds primarily for the 

purchase of fresh fruits and vegetables, 

offering the Program separately from the 

NSLP and SBP at a minimum of twice 

a week, but as frequently as possible 

during the school week and integrating 

the Program with other wellness 

activities. These and other 

responsibilities that would be included 

in the agreement are listed in § 211.10 

of the proposed regulatory text. The 

State agency would have authority to 

amend, suspend or terminate the 

agreement if an SFA or a school 

repeatedly fails to operate the Program 

in accordance with the provisions of the 

agreement and/or the requirements of 

this part. 

School Application 

Eligible schools that wish to 

participate in the Program would be 

required to submit an application 

through the SFA. Such applications 

shall be submitted by the SFA to the 

State agency for FFVP approval. At a 

minimum, the application submitted to 

the State agency shall contain the 

following information for each school 

applying for Program participation: 

• The total number of students 

enrolled in the school and the 

percentage of those students certified as 

eligible for free and reduced-price 

meals; 

• A certificate of support for 

participation in the FFVP signed by all 

of the following: (1) The school food 

manager, (2) the school principal, and 

(3) the district superintendent (or 

equivalent position); and 

• A program implementation plan 

that includes efforts to integrate the 

FFVP with other efforts to promote 

children’s health, nutrition and physical 

activity, and to reduce overweight and 

obesity in children. 

In addition, as a part of the 

implementation plan, each school 

would be encouraged to include a 

description of partnership activities 

undertaken or planned to enhance the 

operation of the FFVP in the school. 

FNS has developed an on-line FFVP 

Toolkit for States to submit ‘‘Best 

Practices’’. Both the toolkit and the 

FFVP Handbook may be found at 

http://www.fns.usda.gov/cnd/FFVP/ 

toolkit.htm and at http:// 

www.fns.usda.gov/cnd/FFVP/ 

handbook.pdf. 

Schools are encouraged to develop 

partnerships with one or more entities 

that can provide non-Federal resources 

to the FFVP operating in the school. 

Such entities could include 

representatives of the fruit and vegetable 

industries, grocery stores, local colleges 

and universities and local health 

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promotion resources. The FFVP 

handbook specifically encourages 

schools to use training materials and 

develop partnerships with all entities to 

promote the goals of program. 

SFAs submitting information on 

behalf of schools reapplying to the 

Program based on their continued high 

need would be allowed, at the 

discretion of the State agency, to simply 

update the information the State agency 

has on file rather than submit a 

complete application package. This 

would simplify the application process 

for the SFA, the returning school and 

the State agency. However, SFAs 

wishing to add new schools to the 

Program would be required to submit a 

complete application for such schools 

that include all of the required elements 

noted above. 

Schools that demonstrate both 

compliance with the FFVP requirements 

outlined in the regulations and continue 

to meet the Program eligibility 

requirements may be reapproved to 

continue FFVP participation. However, 

this does not eliminate the need for the 

State agency to evaluate FFVP eligibility 

priority for schools on an annual basis 

to ensure that schools serving the 

highest percentage of free and reduced 

price certified students are provided the 

opportunity to participate in the FFVP, 

in accordance with the eligibility 

criteria established by statute. 

Publicizing the FFVP in School 

Once selected for participation, a 

school would be responsible for 

announcing the availability of free fresh 

fruits and vegetables to children within 

the school. If the school has a Head Start 

program, a split-session kindergarten 

class, or a child care center, the school 

would notify these groups as well. 

When publicizing the Program, it is 

important that schools note that the 

FFVP is not intended to serve teachers, 

parents or other adults who are in the 

school. The only exception to this 

prohibition against serving FFVP 

components to adults who are in the 

school concerns specific teachers. It is 

proposed that it be acceptable for 

teachers who are in the classroom with 

the children during the FFVP service to 

partake of the fruit or vegetable being 

served to the children in order to 

reinforce the nutrition education 

message of the FFVP. Anecdotal 

information acquired through the 

operation of the FFVP indicates that 

teachers provide a positive role model if 

they consume fruits and vegetables with 

their students. However, no additional 

funding for the service of such 

components may be claimed for 

reimbursement by the SFA or 

participating schools. 

Program Operation 

Each school selected to participate in 

the FFVP would have the flexibility to 

operate the Program within the basic 

statutory and regulatory requirements 

and FNS guidance. Each school would 

decide when, where, and how to serve 

the fresh fruit and vegetables, what mix 

of fresh fruits and vegetables to serve, 

how to involve teachers, parents and 

community members, how to 

incorporate nutrition education, how to 

publicize the availability of free fruits 

and vegetables, and other Program 

logistics. The actual operation of the 

Program would have to be consistent 

with the agreement between the SFA 

and the State agency, as described in 

§ 211.10 of the regulatory text. 

Although Congress funded the FFVP 

on a school year basis, we expect that 

the actual service of fresh fruits and 

vegetables in schools will begin when 

school begins for the students and end 

by June 30th. Schools would be 

expected to offer the Program during the 

entire school year (first to last day of 

school) to effect a positive change in the 

dietary habits of participating students. 

Schools that operate year-round may 

participate in the FFVP during their 

entire ‘‘school year’’. However, schools 

are not allowed to offer the Program 

during scheduled holidays, summer 

school sessions or when the Summer 

Food Service Program or the Seamless 

Summer option of the NSLP is in 

operation at the school. 

Participating schools would be 

required to make the fresh fruits and 

vegetables available during the school 

day, separate and distinct from the 

NSLP and SBP meal service, at one or 

more locations in the school. This rule 

also proposes that such a food service 

would occur in each participating 

school at least twice a week. The 

Program would not operate before or 

after school hours. The school would 

also need to consider the time and place 

available to eat the fruits and vegetables 

and other logistical issues. The FFVP 

tool kit (http://www.fns.usda.gov/cnd/ 

FFVP/toolkit.htm) encourages the 

collection of ‘‘Best Practices’’ and the 

FFVP manual (http://www.fns.usda.gov/ 

cnd/FFVP/handbook.pdf) provides a 

number of suggestions in this area. 

Food Eligible To Be Served in the FFVP 

The purpose of the Program is to 

encourage the increased consumption of 

fresh fruits and fresh vegetables in 

elementary schools serving low income 

students. Schools participating in the 

Program would provide access to fresh 

fruits and fresh vegetables that are 

appropriate for the grade levels of the 

enrolled children and that represent a 

variety of whole or pre-cut fresh fruits 

and vegetables. Frozen, canned, dried, 

certain types of vacuum packed and 

other types of processed fruits and 

vegetables would be prohibited from 

being served in the FFVP. In addition, 

schools would be required to limit the 

service of cooked fresh vegetables to a 

maximum of one service per week as 

part of a nutrition education lesson. 

Other ingredients of the cooked fresh 

vegetable dish would not be 

reimbursable under the Program. Low 

fat or non-fat dip for fresh vegetables is 

permitted in the Program in order to 

encourage consumption and enhance 

acceptability. Many vegetables may 

otherwise not be palatable to students. 

However, fruit is acceptable on its own 

and does not need to be enhanced for 

acceptability. Since fruit has naturally 

occurring sugar, we determined that 

dips for fruit will increase not only 

sugar but fat in children’s diets and 

would be counterproductive to the goals 

of the Program. 

The definition of the term ‘‘Fresh 

fruits and vegetables’’ as proposed in 

this rule has been based upon the 

definition of the term ‘‘fresh’’ included 

in § 101.95(a) of Title 21 Part 101 of the 

Food and Drug Administration Food 

Labeling regulations as well as an 

adaptation of FNS’ approach to defining 

‘‘unprocessed’’ agricultural products 

appropriate to the FFVP. We believe 

that this proposed definition best 

represents the types of fresh fruits and 

vegetables that Congress intended to be 

served to children enrolled in this 

Program. The proposed definition is 

included in § 211.2. 

As required in § 211.21 of this 

proposed rule, the requirements found 

in § 210.10(g) of the NSLP regulations 

regarding accommodations for children 

with disabilities also exists in the FFVP. 

Schools must consider how this 

accommodation requirement may be 

applied in the operation of the FFVP. 

For example, in providing 

accommodations for the FFVP, schools 

may have to provide texture 

modifications. In doing so, it is 

recommended that schools consider 

starting with fresh fruit or vegetable 

products and avoid pure ́eing canned, 

frozen and vacuum packed fruits and 

vegetables and those in jars, including 

baby foods. In most instances, fresh 

fruits can be easily pure ́ed; however, we 

recognize that this is not the case for 

most vegetables. Fresh vegetables may 

be used, but in most circumstances, will 

need to be cooked, then pure ́ed. 

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10986 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 

The pure ́eing of fresh produce for 

these students must be done within the 

constraints of their medical 

requirements as allowed by their 

physician. However, schools should 

make sure that both the parent and the 

child’s doctor are aware of the program 

and its intent to provide fresh produce 

in order to determine if the fresh items 

are acceptable choice for texture 

modifications. 

Geographic Preference 

Section 4302 of Public Law 110–246, 

the Food, Conservation, and Energy Act 

of 2008, amended section 9(j) of the 

Richard B. Russell National School 

Lunch Act (42 U.S.C. 1758(j)) to require 

the Secretary of Agriculture to 

encourage institutions operating all 

Child Nutrition Programs to purchase 

unprocessed locally grown and locally 

raised agricultural products. We 

initially implemented the provisions 

through policy memoranda and 

explanatory question and answer 

communications dated January 9, 2009, 

July 22, 2009 and October 9, 2009. Most 

recently, a final rule entitled 

‘‘Geographic Preference Option for the 

Procurement of Unprocessed 

Agricultural Products in Child Nutrition 

Programs’’, was published at 76 FR 

22603 on April 22, 2011. 

The geographic preference 

procurement option is applicable to 

purchases made in the FFVP. However, 

this provision shall only be applied 

within the context of the FFVP 

requirement that produce utilized in the 

program be fresh. The definition of 

‘‘unprocessed agricultural products’’ in 

this proposal has been modified from 

the definition used for the rest of the 

Child Nutrition Programs since the 

geographic preference provisions of the 

Food, Conservation, and Energy Act of 

2008 do not change the basic regulatory 

and statutory requirement that only 

fresh produce is allowed to be 

purchased in the FFVP. This definition 

may be found in § 211.13(b). 

By utilizing the statutorily established 

geographic preference option in Child 

Nutrition Programs, purchasing 

institutions, such as States and SFAs, 

may specifically identify the geographic 

area within which unprocessed locally 

raised and locally grown fresh fruits and 

vegetables will originate. These 

procurements may be accomplished 

through informal or formal procurement 

procedures, as required by the FFVP 

regulations, which are consistent with 

the regulations of the other Child 

Nutrition Programs. 

Should SFA’s choose to exercise the 

geographic preference option, it 

basically allows schools operating the 

FFVP to specifically define geographic 

areas from which they will seek to 

procure unprocessed local fresh fruits 

and vegetables. It is up to each school 

or SFA to determine how to define the 

geographic area from which such 

products will be procured. As 

previously stated, utilizing a geographic 

preference is an option that may or may 

not be utilized when procuring fresh 

fruits and vegetables for the Program. 

Other Requirements 

To ensure that the fresh fruits and 

vegetables are safe for consumption by 

the students, schools must follow the 

applicable sanitation and health 

standards established under State and 

local law and regulations, as well as the 

school’s food safety program. Food 

safety requirements for schools are 

already in place under § 210.13 and 

§ 220.7, respectively, of this chapter for 

schools participating in the school 

lunch and breakfast programs. 

Section 19(d)(1)(E) of the statute 

encourages schools to submit a plan for 

implementation that includes 

partnerships with one or more entities 

that will provide non-Federal resources 

to the Program such as promotional 

materials, speakers, etc. Schools would 

also be expected to encourage the 

involvement of parents and the 

community in activities that enhance 

the Program such as seeking program 

partners and speakers, and other 

activities in support of the FFVP and 

nutrition education efforts. 

Use of Program Funds 

Schools shall use the majority of the 

Program funds for the purchase of fresh 

fruits and vegetables, including services 

for produce to be pre-cut and for the 

production of ready-made produce 

trays. FNS expects that the resources of 

the school foodservice operation would 

be available for the FFVP. However, 

FNS acknowledges that participating 

schools may have some additional 

expenses in connection with the 

Program such as buying new equipment 

to maintain food safety. As stated in 

§ 211.6 of the proposed regulatory text, 

schools would be allowed to use no 

more than 15 percent of a school’s total 

grant for non-food costs necessary to 

operate the Program. Such non-food 

costs would include, for example, the 

purchase of disposable supplies, 

equipment leases and purchases, and 

salaries and fringe benefits for 

employees that wash and cut produce, 

prepare food trays, distribute produce to 

classrooms, set up kiosks, restock 

vending machines, and clean up after 

the food service. Based on previous 

experience and information on the 

FFVP operations, the 15 percent 

limitation on non-food costs seems 

reasonable and appropriate. However, 

we invite comments on this proposed 

limitation. 

All FFVP expenditure information 

submitted to the SFA by a school for 

reimbursement would be reviewed by 

the SFA to ensure that such costs are 

allowable and reasonable given the 

number of children benefiting from the 

Program. The SFA claim for 

reimbursement submitted to the State 

agency must be signed by an SFA 

official and must be supported by 

records maintained by the SFA. 

Non-reimbursable costs would 

include any food items that do not meet 

the definition of fresh fruits and 

vegetables included in § 211.2, such as 

processed or preserved fruits and 

vegetables (i.e., canned, frozen, dried 

and certain types of vacuum packed 

products), dip for fruit, fruit leather, 

jellied fruit, trail mix, nuts, fruit or 

vegetable pizza, fruit smoothies, 

promotional items such as posters and 

buttons, and nutrition education 

materials. 

A variety of free nutrition education 

materials, both printed and online, are 

available from State and federal partners 

identified in the FFVP page of the Child 

Nutrition Programs public Web site, 

http://www.fns.usda.gov/cnd/FFVP/ 

FFVPResources.htm as well as the FNS 

Team Nutrition site. Local partners, 

such as food retailers, health 

departments, and the USDA Extension 

Service, are also good sources for 

nutrition education and promotional 

materials that may be used in the 

Program. 

The fruits and vegetables offered in 

the Program are intended to be 

consumed by children enrolled in the 

participating school during the school 

day at school, where there is the 

opportunity to monitor the distribution 

of the food and talk about the link 

between nutrition and health, as well as 

the importance of good hygiene before 

and during meals. Schools are not 

allowed to give children fruits and 

vegetables to take home. 

Claims for Reimbursement 

Each participating school would 

submit monthly expenditure 

information to the SFA in order to 

enable the SFA to submit the monthly 

claim for reimbursement to the State 

agency for the purchase of fresh fruits 

and vegetables and for allowable nonfood costs in conformance with § 211.9 

of the proposed regulatory text. Schools 

would be required to submit supporting 

documentation and would be required 

to maintain such information for review 

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Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 10987 

2U.S. Department of Agriculture and U.S. 

Department of Health and Human Services. Dietary 

Guidelines for Americans, 2010. 7th Edition, 

Washington, DC: US Government Printing Office, 

December 2010. 

3Lauren Olsho, Lauren, Jacob Klerman, and 

Susan Bartlett, Food and Nutrition Service 

Evaluation of the Fresh Fruit and Vegetable 

Program (FFVP): Interim Evaluation Report. Abt 

Associates, September 2011. http:// 

www.fns.usda.gov/ora/MENU/Published/CNP/ 

cnp.htm. 

for a period of three years after the date 

of submission of the final Financial 

Status Report. Purchase orders that 

commingle orders placed for fresh fruit 

and vegetables used in the FFVP as well 

as in other school meal programs would 

have to indicate which fresh produce is 

for the use in the FFVP. 

It is proposed that expenditure 

information submitted by each 

participating school would be reviewed 

by the SFA to ensure that the school 

expenditures are appropriate to be 

claimed and are correct. The SFA would 

then consolidate the information 

submitted by the participating schools 

into a single claim for reimbursement 

for submission to the State agency. Such 

monthly claims for reimbursement shall 

be submitted by the SFAs to the State 

agency not later than 60 days following 

the last day of the full month covered 

by the claim in accordance with § 211.9 

of the proposed rule. The State agency 

maintains responsibility to ensure the 

claims are accurate and reasonable. 

I. Procedural Matters 

A. Executive Order 12866 and Executive 

Order 13563 

This proposed rule has been 

determined to be significant and was 

reviewed by the Office of Management 

and Budget (OMB) in conformance with 

Executive Order 12866. 

B. Regulatory Impact Analysis 

The following summarizes the 

conclusions of the regulatory impact 

analysis. 

Need for Action 

This proposed rule seeks to establish 

the regulatory requirements for the 

administration and operation of the 

FFVP, a new program which began as a 

pilot in a small number of schools in the 

year 2002 and is now available to over 

4,640 selected schools nationwide. 

Given the incremental funding process, 

FNS expects that the Program will 

continue to grow. Currently, FFVP 

operators at the State and local levels 

follow policy memoranda and practical 

guidance. 

Benefits 

The intent of the proposed rule is to 

encourage the consumption of fresh 

fruits and vegetables by elementary 

school children. The 2010 Dietary 

Guidelines for Americans 2 discusses the 

importance of fruits and vegetables to a 

healthful diet. Most current 

consumption patterns of children and 

adults do not achieve the recommended 

intakes of many varieties of fruits and 

vegetables. The program is expected to 

be successful in introducing school 

children to a variety of produce that 

they otherwise might not have the 

opportunity to sample. By providing 

increased access to fruits and 

vegetables, the FFVP will address a key 

inconsistency between the diets of 

elementary school children and the 

2010 Dietary Guidelines. 

The September 2011 interim 

evaluation of the FFVP finds that 

students are consuming more fruits and 

vegetables, an additional 1⁄4 cup of fruits 

and vegetables on average, on days 

when the program is operating.3 That is 

nearly 15 percent higher than average 

fruit and vegetable consumption of 

children in non-FFVP schools. The 

report also finds no statistically 

significant increase in calorie 

consumption among program 

participants. That important finding 

indicates that fruits and vegetables are 

replacing other foods rather than adding 

calories to the diets of participants and 

increasing the risk of weight gain. 

This proposed rule would help FNS 

develop regulatory requirements in 

consultation with stakeholders and the 

public. The rulemaking process also 

provides the opportunity to consolidate 

all the FFVP requirements into Title 7, 

part 211 of the Code of Federal 

Regulations. 

Costs 

Although this proposed rule has been 

designated significant, the costs 

associated with implementing the 

proposed regulatory requirements are 

not expected to significantly add to 

current program costs at the State and 

local levels. The total cost of the 

proposed rule is projected to be $778 

million for FY2011–2015. One half 

million dollars per fiscal year is retained 

by USDA for the administration of the 

program. The rest of the funds are 

distributed to the States for the purchase 

of fresh fruit and vegetables, served free 

to all children enrolled in selected 

elementary schools, and administration 

of the program at the State and local 

levels. This cost is estimated as $776 

million for FY2011–2015. From this 

statutory grant, funds are made available 

to offset the costs incurred by State 

agencies, SFAs and schools for 

administration of the program, 

including required reporting and 

recordkeeping, and for other allowable 

non-food costs. 

The key responsibilities of the State 

agency would be: (1) Disseminate 

information about the Program to lowincome schools; (2) solicit applications 

from eligible schools and select those 

with the highest percentage of free and 

reduced-price participation; (3) provide 

training and technical assistance to new 

schools and monitor program operation: 

and (4) submit quarterly financial 

reports and an annual report to FNS. 

These activities are not expected to be 

time consuming because the FFVP is a 

relatively simple program. FNS 

anticipates that many of these activities, 

including monitoring, would be 

conducted in conjunction with activities 

required under the NSLP. In addition, 

FNS has issued implementation 

memoranda and provided technical 

assistance through conference calls, 

online webinars, regional and state 

conferences, and workshops at the 

School Nutrition Association annual 

conference. The total State agency 

administrative 5-year cost (FY2011– 

2015) is estimated as $23 million. 

At the local level, schools are 

reimbursed for the food and allowable 

non-food costs. Schools would be 

required to submit expenditure data to 

the SFA and keep supporting records for 

three years. We expect that the staff, 

facilities and equipment used for the 

lunch program will be available to the 

FFVP. Food preparation (e.g., washing, 

peeling and cutting fruits and 

vegetables) may occasionally be 

necessary and could result in an added 

cost to the school. Other possible costs 

would include purchases of additional 

equipment and disposable supplies for 

the FFVP. For FY2011–2015, the total 

SFA and school administrative cost and 

allowable non-food cost is estimated as 

$113 million. The total State agency, 

SFA and school administrative cost and 

allowable non-food 5-year cost is 

estimated as $136 million. 

C. Regulatory Flexibility Act 

This rule has been reviewed with 

regard to the requirements of the 

Regulatory Flexibility Act (RFA) of 

1980, (5 U.S.C. 601–612). Pursuant to 

that review it has been certified that this 

rule would not have a significant impact 

on a substantial number of small 

entities. The administrative and 

operational requirements of the Program 

are simple. The Federal government 

provides funds for the purchase of fresh 

fruit and vegetables and general 

administration of the Program. 

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10988 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 

Therefore, FNS does not expect that the 

proposed rule will have a significant 

economic impact on small entities. 

D. 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, 

the Department generally must prepare 

a written statement, including a cost 

benefit analysis, for proposed and final 

rules with ‘‘Federal mandates’’ that may 

result in expenditures by State, local or 

tribal governments, in the aggregate, or 

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 the 

Department to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the most cost 

effective or least burdensome alternative 

that achieves the objectives of the rule. 

This proposed rule does not contain 

Federal mandates (under the regulatory 

provisions of Title II of the UMRA) that 

would result in expenditures for State, 

local and tribal governments or the 

private sector of $100 million or more 

in any one year. Thus, the rule is not 

subject to the requirements of sections 

202 and 205 of the UMRA. 

E. Executive Order 12372 

The FFVP is listed in the Catalog of 

Federal Domestic Assistance Programs 

under 10.582. For the reasons set forth 

in the final rule in 7 CFR part 3015, 

subpart V, and related Notice (48 FR 

29115, June 24, 1983), this program is 

included in the scope of Executive 

Order 12372 which requires 

intergovernmental consultation with 

State and local officials. The Child 

Nutrition Programs are federally funded 

programs administered at the State 

level. FNS headquarters and regional 

office staff engage in ongoing formal and 

informal discussions with State and 

local officials regarding program 

operational issues. This structure of the 

Child Nutrition Programs allows State 

and local agencies to provide feedback 

that forms the basis for any 

discretionary decisions made in this and 

other rules. 

F. Executive Order 13132 

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 13121. 

1. Prior Consultation With State 

Officials 

FNS headquarters and regional offices 

have formal and informal discussions 

with State agency officials on an 

ongoing basis regarding the Child 

Nutrition Programs and policy issues. 

Prior to drafting this proposed rule, FNS 

held several conference calls and 

meetings with the State agencies to 

discuss the statutory requirements 

addressed in this proposed rule. In 

response, FNS received a number of 

questions which were summarized in 

practical guidance distributed to the 

State and local program operators. FNS 

also discussed the FFVP statutory 

requirements with program operators at 

national, regional and state conferences 

and received input which has been 

considered in drafting this proposed 

rule. 

2. Nature of Concerns and the Need To 

Issue This Rule 

State agencies requested clarification 

on school applications and selection, 

allowable foods, and general program 

operation. These and other requirements 

are based on section 19 of the National 

School Lunch Act and FNS policy 

memoranda are discussed in the 

preamble. 

3. Extent to Which the Department 

Meets Those Concerns 

FNS has considered the impact of this 

proposed rule on State and local 

operators. We have attempted to balance 

the goal of increasing the opportunities 

for low-income children to consume 

fresh fruits and vegetables against the 

need to establish basic regulatory 

requirements for a new program. At the 

State agency level, seeking applications 

from low-income schools could require 

persistence and assistance from the 

school food authorities. For schools, 

adequate staff resources to wash, cut, 

and serve the fresh fruits and vegetables 

could pose an occasional challenge. 

FNS has provided and continues to 

provide guidance and technical 

assistance to program operators, and 

expects that schools will only have 

minor difficulties in meeting the 

proposed requirements. 

G. Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This proposed 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 and timely 

implementation. This rule is not 

intended to have retroactive effect 

unless so specified in the Effective Dates 

section of the final rule. Prior to any 

judicial challenge to the provisions of 

the final rule, appeal procedures in 

§ 210.18(q) and § 235.11(f) of this 

chapter must be exhausted. 

H. Executive Order 13175 

E.O. 13175 requires Federal agencies 

to consult and coordinate with tribes on 

a government-to-government basis on 

policies that have tribal implications, 

including regulations, legislative 

comments or proposed legislation, and 

other policy statements or actions that 

have substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

In late 2010 and early 2011, USDA 

engaged in a series of consultative 

sessions to obtain input by Tribal 

officials or their designees concerning 

the impact of this rule on the tribe or 

Indian Tribal governments, or whether 

this rule may preempt Tribal law. 

Reports from these consultations will be 

made part of the USDA annual reporting 

on Tribal Consultation and 

Collaboration. USDA will respond in a 

timely and meaningful manner to all 

Tribal government requests for 

consultation concerning this rule and 

will provide additional venues, such as 

webinars and teleconferences, to 

periodically host collaborative 

conversations with Tribal officials or 

their designees concerning ways to 

improve this rule in Indian country. We 

are unaware of any current Tribal laws 

that could be in conflict with the 

proposed rule. We request that 

commentors address any concerns in 

this regard in their responses. 

I. Civil Rights Impact Analysis 

FNS has reviewed this proposed 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 age, race, color, 

national origin, sex, or disability. A 

careful review of the rule’s intent and 

provisions revealed that this rule is not 

intended to reduce children’s ability to 

participate in the National School 

Lunch Program, School Breakfast 

Program, Fresh Fruit and Vegetable 

Program, or Special Milk Program. 

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Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 10989 

J. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. chapter 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. This 

proposed rule contains information 

collections that are subject to review 

and approval by OMB; therefore, FNS 

has submitted an information collection 

under 0584–NEW, which contains the 

burden information in the proposed rule 

for OMB’s review and approval. 

Comments on the information 

collection in this proposed rule must be 

received by April 24, 2012. Send 

comments to the Office of Information 

and Regulatory Affairs, OMB, Attention: 

Desk Officer for FNS, Washington, DC 

20503. Please also send a copy of your 

comments to Lynn Rodgers-Kuperman, 

Child Nutrition Division, Food and 

Nutrition Service, U.S. Department of 

Agriculture, 3101 Park Center Drive, 

Room 636, Alexandria, Virginia 22302. 

For further information, or for copies of 

the information collection requirements, 

please contact Lynn Rodgers-Kuperman 

at the address indicated above. 

Comments are invited on: (1) Whether 

the proposed collection of information 

is necessary for the proper performance 

of the Agency’s functions, including 

whether the information will have 

practical utility; (2) the accuracy of the 

Agency’s estimate of the proposed 

information collection burden, 

including the validity of the 

methodology and assumptions used; (3) 

ways to enhance the quality, utility and 

clarity of the information to be 

collected; and (4) ways to minimize the 

burden of the collection of information 

on those who are to respond, including 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology. 

All responses to this request for 

comments will be summarized and 

included in the request for OMB 

approval. All comments will also 

become a matter of public record. 

Title: Fresh Fruit and Vegetable 

Program (FFVP). 

OMB Number: [Not Yet Assigned] 

0584–XXXX. 

Expiration Date: [Not Yet 

Determined]. 

Type of Request: New Collection. 

Abstract: Section 120 of the Child 

Nutrition and WIC Reauthorization Act 

of 2004 amended the Richard B. Russell 

National School Lunch Act, 42 U.S.C. 

1769(g) to authorize the Fresh Fruit and 

Vegetable pilot as a permanent program 

effective July 1, 2004. The Food, 

Conservation, and Energy Act of 2008 

expanded the Program and significantly 

increased funding. 

The purpose of the Program is to 

encourage increased consumption of 

fresh fruits and vegetables by children 

enrolled in elementary schools that 

serve low-income students. Schools 

interested in participating in the 

Program must submit an application 

annually. Participating schools must 

submit monthly expenditure data to 

their school food authority (SFA) for the 

purchase of fruits and vegetables. SFAs 

must review, approve, and forward the 

consolidated claims to the State agency 

(SA) for payment. Program violations 

identified in any review conducted by 

the SA and/or SFA must be 

documented. As necessary, schools or 

SFAs must document any required 

corrective action. 

SAs must submit financial reports on 

FFVP expenditures to FNS five times 

per year to include four quarterly 

reports and one final report. In addition, 

SAs must submit an annual report to 

FNS disclosing program data such as the 

number of schools that apply, the 

number that are selected for 

participation, their total enrollment, the 

percentage of students eligible for free 

and reduced-price meals to ensure that 

the Program is reaching low-income 

schools with the highest need and the 

per student allocation provided to each 

school. 

The average burden per response and 

the annual burden hours are explained 

below and summarized in the charts 

which follow. 

Estimated Annual Burden for 0584– 

New, Fresh Fruit And Vegetable 

Program, 7 CFR 211 

Recordkeeping: Estimated Annual 

Burden for 0584–NEW, Fresh Fruit and 

Vegetable Program, 7 CFR 211 

Respondents for This Proposed Rule: 

State agencies, School Food Authorities, 

Schools. 

Estimated Number of Respondents for 

This Proposed Rule: 54 Stage agencies; 

4,983 School Food Authorities; 4,983 

Schools. 

Estimated Number of Responses per 

Respondent for This Proposed Rule: 5.5. 

Estimated Total Annual Responses: 

55,515. 

Estimated Total Annual 

Recordkeeping Burden on Respondents 

for This Proposed Rule: 264,413 hours. 

RECORDKEEPING

Section 

Estimated 

number of 

respondents 

Frequency of 

response 

Average 

annual 

responses 

Average 

burden per 

response 

Annual burden 

hours 

SA must maintain records as necessary to support reimbursement 

to SFAs and reports submitted to 

FNS.

7 CFR 211.8(b) ....... 54 9.0 486 0.25 121.50 

SA maintains Claims for Reimbursement and records pertaining to financial action/compliance.7 CFR 211.9(g) and 

211.11(b).

54 1.0 54 0.33 17.82 

SA maintains applications for participation.7 CFR 211.10(d) ..... 54 1.0 54 2.66 143.64 

SA maintains on file evidence of 

investigations and actions.

7 CFR 211.14(b) 

and 211.14(d).

54 1.0 54 0.25 13.50 

SA maintains records pertaining to 

claims against schools.

7 CFR 211.19(c) ..... 54 1.0 54 0.33 17.82 

SFA maintains monthly Claim for 

Reimbursement submitted by 

schools and supporting documentation.

7 CFR 211.9(a) and 

211.11(b).

4,983 9.0 44,847 5 224,235.00 

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10990 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 

RECORDKEEPING—Continued 

Section 

Estimated 

number of 

respondents 

Frequency of 

response 

Average 

annual 

responses 

Average 

burden per 

response 

Annual burden 

hours 

SFA maintains records to ensure 

school is conducting program accordingly (review conducted in 

conjunction with on-site review 

required under § 210.8).

7 CFR 211.14(b) ..... 4,983 1.0 4,983 3 14,949.00 

Schools must maintain all records 

pertaining to the Program for 3 

years after the end of the fiscal 

year..

7 CFR 211.10(e)(15) 4,983 1.0 4,983 5 24,915.00 

Total Recordkeeping for Proposed rule.................................. 10,020 5.5 55,515 4.76 264,413.28 

Total Existing Recordkeeping 

Burden for Part 211.

................................. n/a n/a n/a n/a n/a 

Total Recordkeeping Burden 

for Part 211 with Proposed 

rule.

................................. 10,020 5.5 55,515 4.76 264,413.28 

Reporting: Estimated Annual Burden for 

0584–NEW, Fresh Fruit and Vegetable 

Program, 7 CFR 211 

Respondents for this Proposed Rule: 

State agencies, School Food Authorities, 

Schools. 

Estimated Number of Respondents for 

This Proposed Rule: 54 State agencies; 

4,983 School Food Authorities; 4,983 

Schools. 

Estimated Number of Responses per 

Respondent for This Proposed Rule: 

9.96. 

Estimated Total Annual Responses: 

99,822. 

Estimated Total Annual Reporting 

Burden on Respondents for This 

Proposed Rule: 111,034 hours. 

REPORTING

Section 

Estimated 

number of 

respondents 

Frequency of 

response 

Average 

annual 

responses 

Average 

burden per 

response 

Annual burden 

hours 

SA must submit first quarter estimates by each June 1 to 

FNSRO to receive allocation of 

funds..

7 CFR 211.5 ........... 54 1 54 0.25 13.50 

SA shall solicit applications for participation.7 CFR 211.10(d) ..... 54 1 54 1.25 67.50 

SA must submit an annual FFVP 

report to FNS.

7 CFR 211.11(a)(1) 54 1 54 1.5 81.00 

SFAs consolidate monthly claims 

from schools and submit claim 

forms to SA for reimbursement..

7 CFR 211.9(a) ....... 4,983 9 44,847 1.5 67,270.50 

SFA must submit to SA documented corrective action, no 

later than 30 days from the 

deadline for completion, for program violations identified on administrative reviews..

7 CFR 211.14(b) ..... 4,983 1 4,983 3 14,949.00 

Schools submit monthly claims for 

reimbursement for both food and 

non-food costs..

7 CFR 211.9(a) and 

211.10(e)(10).

4,983 9 44,847 0.5 22,423.50 

Any school interested in participating in the FFVP must complete an application including 

program implementation plan 

and description of partnership 

activities. All returning schools 

must update information on file..

7 CFR 211.10(d) ..... 4,983 1 4,983 1.25 6,229.20 

Total Reporting for Proposed 

rule*.

................................. 10,020 9.9623 99,822 1.11232 111,034.20 

Total Existing Reporting Burden for Part 211.................................. n/a n/a n/a n/a n/a 

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Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 10991 

REPORTING—Continued 

Section 

Estimated 

number of 

respondents 

Frequency of 

response 

Average 

annual 

responses 

Average 

burden per 

response 

Annual burden 

hours 

Total Reporting Burden for 

Part 211 with Proposed 

rule*.

................................. 10,020 9.9623 99,822 1.11232 111,034.20 

* Burden for SF–425 is captured in OMB 0348–0061. 

SF–425 quarterly & annual financial report (54 respondents * 5 frequency * 1.5 hrs per response = 405 hours). 

Summary of Burden (OMB 0584–NEW) 7 

CFR 211 

Total No. Respondents ......... 10,020 

Average No. Responses per 

Respondent ....................... 15.5 

Total Annual Responses ...... 155,337 

Average Hours per Response ............................... 2.417 

Total Burden Hours for Part 

211 .................................... 375,447.48 

K. E-Government Act Compliance 

The Food and Nutrition Service is 

committed to complying with the EGovernment Act to promote the use of 

the Internet and other information 

technologies to provide increased 

opportunities for citizen access to 

Government information and services 

and for other purposes. 

List of Subjects in 7 CFR Parts 211 and 

235 

Administrative practice and 

procedure, Food assistance programs, 

Grant programs—education, Grant 

programs—health, Infants and children, 

Reporting and recordkeeping 

requirements, School breakfast and 

lunch programs. 

For the reasons set forth in the 

preamble, 7 CFR part 211 is proposed to 

be added as follows: 

PART 211—FRESH FRUIT AND 

VEGETABLE PROGRAM 

Sec. 

211.1 General purpose and scope. 

211.2 Definitions. 

211.3 Administration. 

211.4 Funding. 

211.5 Funding availability. 

211.6 Use of funds. 

211.7 Payment process to States. 

211.8 Reimbursement for school food 

authorities. 

211.9 Claims for reimbursement. 

211.10 Eligibility requirements. 

211.11 Reporting and recordkeeping. 

211.12 Special responsibilities for schools. 

211.13 Procurement standards. 

211.14 Program assistance and monitoring. 

211.15 Withholding payments. 

211.16 Suspension, termination and grant 

closeout procedures. 

211.17 Penalties. 

211.18 Management evaluations and audits. 

211.19 Educational prohibitions. 

211.20 Other State agency responsibilities. 

211.21 Nondiscrimination. 

211.22 Program information. 

Authority: 42 U.S.C. 1769a. 

§ 211.1 General purpose and scope. 

The purpose of the Fresh Fruit and 

Vegetable Program is to increase fresh 

fruit and vegetable consumption in 

elementary schools to improve the diets 

and long-term health of the participating 

children and to help children 

understand the relationship between 

proper eating and good health. This 

Program makes free fresh fruits and 

vegetables available to students in 

selected schools in order to introduce 

children to fresh fruits and vegetables 

and to make these foods more prevalent 

in their diet. This part prescribes the 

general requirements for Program 

administration and participation as 

stated in section 19 of the Richard B. 

Russell National School Lunch Act, as 

amended (42 U.S.C. 1769a). 

§ 211.2 Definitions. 

For the purpose of this part, the term: 

Act means the Richard B. Russell 

National School Lunch Act, as 

amended. 

Department means the United States 

Department of Agriculture. 

Elementary school means, under the 

Program, a nonprofit institutional day or 

residential school, including a public 

elementary charter school that provides 

elementary education, as determined 

under State law. 

Fiscal year means a period of 12 

calendar months beginning October 1st 

of any year and ending with September 

30th of the following year. 

FNS means the Food and Nutrition 

Service, United States Department of 

Agriculture. 

FNSRO means the appropriate 

Regional Office of the Food and 

Nutrition Service of the Department. 

Free means provided to all children at 

no charge. 

Free lunch means a lunch served 

under the National School Lunch 

Program to a child from a household 

eligible for such benefits under 7 CFR 

part 245 of this chapter and for which 

neither the child nor any member of the 

household pays or is required to work. 

Fresh fruits and vegetables means 

produce in its raw state which has not 

been frozen or subjected to any form of 

thermal processing or any other form of 

preservation. The following processes 

do not preclude the food from being 

considered to be fresh: The addition of 

waxes, the post-harvest use of approved 

pesticides, the application of a mild 

chlorine wash or mild acid wash on 

produce, or the treatment of raw foods 

with ionizing radiation within the limits 

established by the Food and Drug 

Administration. (21 CFR 101.95, Sept. 

24, 2009.) In addition, such produce 

may include products that have been 

cooled, refrigerated, peeled, sliced, 

diced, cut, chopped, shucked, washed, 

treated with high water pressure or 

‘‘cold pasteurized’’, packaged (such as 

placing produce in cartons or vacuum 

packaging, in which air is removed from 

a package of food and the package is 

hermetically sealed to ensure that the 

vacuum remains within the packaging) 

and bagged (such as placing produce in 

bags). 

Nonprofit means, when applied to 

schools or institutions eligible for the 

Program, exempt from income tax under 

section 501(c)(3) of the Internal Revenue 

Code of 1986. 

NSLP means the National School 

Lunch Program, under which 

participating schools operate a nonprofit 

lunch program in accordance with this 

title (7 CFR part 210) and receive 

general and special cash assistance and 

donated food from the Department. 

OIG means the Office of the Inspector 

General of the Department. 

Program means the Fresh Fruit and 

Vegetable Program. 

Reimbursement means Federal cash 

assistance payable to participating 

schools for serving fresh fruits and 

vegetables to children at no charge in 

accordance with the requirements of 

this part. 

Reduced price lunch means a lunch 

served under the NSLP: 

(a) To a child from a household 

eligible for such benefits under 7 CFR 

part 245 of this chapter; 

(b) For which the price is less than the 

school food authority designated full 

price of the lunch and which does not 

exceed the maximum allowable reduced 

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price specified under 7 CFR part 245 of 

this chapter; and 

(c) For which neither the child nor 

any member of the household is 

required to work. 

ROAP means FNSRO Administered 

Programs. 

School means for purposes of the 

Fresh Fruit and Vegetable Program: 

(a) An educational institution of 

elementary and preprimary grades 

recognized as part of the educational 

system in the State and operating under 

public or nonprofit private ownership in 

a single building or complex of 

buildings which participates in the 

NSLP; or 

(b) Any public or nonprofit private 

residential child care institution, or 

distinct part of such institution, which 

participates in the NSLP and serves 

elementary school and preprimary 

school children as defined by the State. 

School day means calendar days in 

which the school is open and teaching, 

and encompasses the period between 

opening and dismissal. 

School food authority means the 

governing body which is responsible for 

the administration of one or more 

schools; and has the legal authority to 

operate the Program therein or be 

otherwise approved by FNS to operate 

the Program. 

School week means the normal school 

week of five consecutive days. 

School year means a period of 12 

calendar months beginning July 1st of 

any year and ending June 30th of the 

following year and, for purposes of 

Program, includes the service of food 

from the first day of class until the last 

day of class. 

Secretary means the Secretary of 

Agriculture. 

State means any of the 50 States, the 

District of Columbia, the 

Commonwealth of Puerto Rico, the 

Virgin Islands, and Guam. 

State agency means: 

(a) The State educational agency; 

(b) Any other agency of the State 

which has been designated by the 

Governor or other appropriate executive 

or legislative authority of the State and 

approved by the Department to 

administer the NSLP in schools, as 

specified in § 210.3(b) of this chapter; or 

(c) The FNSRO, where the FNSRO 

administers the Program as specified in 

§ 211.3(b). 

§ 211.3 Administration. 

(a) FNS. FNS will act on behalf of the 

Department in the administration of the 

Program; 

(b) State agencies. The responsibility 

for the administration of the Program at 

the state level will be in the State 

educational agency or other State 

agency approved to administer the 

National School Lunch Program (NSLP). 

The FNSRO will administer the Program 

if it does so for the NSLP or any part of 

the NSLP in accordance with § 210.3(c) 

of this chapter. Each State agency 

desiring to offer the Program must 

amend the permanent Federal-State 

agreement to include administration of 

the Program in accordance with the 

applicable requirements of this part; 7 

CFR parts 15, 15a, 15b, and 3016; and 

FNS instructions. 

(c) School food authorities. The 

school food authority will be 

responsible for the administration of the 

Program in schools selected by the State 

agency for participation. State agencies 

must ensure that school food authorities 

administer the Program in accordance 

with the applicable requirements of this 

part; 7 CFR parts 15, 15a, 15b, and 3016 

or 3019, as applicable; and FNS 

instructions. Each school food authority 

with schools selected for the Program 

must enter into an agreement with the 

State agency that addresses the 

administration of the Program during a 

specific school year in accordance with 

the provisions of this part, and, as 

applicable, 7 CFR parts 210, 235, 3016, 

and 3019, and with FNS Instructions. 

§ 211.4 Funding. 

(a) Federal funding. (1) Federal funds 

available to the Program each school 

year beginning July 1st will be as 

specified in Section 19 of the Act for 

school year 2010–2011 and for school 

year 2011–2012. For school year 2012– 

2013 and each school year thereafter, 

Program funds will be based on the 

amount received in the preceding year, 

as adjusted to reflect changes for the 12- 

month period ending the preceding 

April 30th in the Consumer Price Index 

for All Urban Consumers for items other 

than food published by the Department 

of Labor’s Bureau of Labor Statistics. 

Unobligated funds from a preceding 

school year may be available to FNS for 

operation of the Program in subsequent 

years. 

(2) No more than $500,000 of the 

funds made available for the Program 

annually may be set aside for Federal 

administrative costs. 

(b) State funding. (1) The minimum 

grant to each of the 50 states and the 

District of Columbia will equal 1 

percent of the funds made available to 

carry out the Program for a school year. 

(2) Remaining funds will be allocated 

to each of the 50 states, the District of 

Columbia, Guam, Puerto Rico, and the 

Virgin Islands based on the proportion 

of the state population to the U.S. 

population. In States in which FNS 

administers part of the Program, funding 

for eligible ROAP schools shall be made 

available to the Regional Office 

administering the Program in the 

eligible schools in those states. 

§ 211.5 Funding availability. 

(a) FNS will notify each State agency 

of its total grant for the upcoming school 

year. Program funds will be provided to 

each State agency through two 

allocation distributions on or around 

July 1st and October 1st of each school 

year. The State agency will use the 

allocated funds to reimburse school 

food authorities for the purchase of 

fresh fruits and vegetables under the 

Program. The State agency must 

promptly notify FNS if it does not 

expect to obligate all the allocated funds 

by the dates specified in this section. 

(1) July 1 allocation. (i) FNS will 

determine the July allocation for each 

State agency based on each State 

agency’s estimate of the amount of 

funding needed to initiate and operate 

the Program during the first quarter of 

the school year. The State agency must 

submit a first quarter estimate to FNS by 

June 1st in order to receive the first 

allocation of funds on or about July 1st. 

The first quarter estimate shall include 

anticipated obligations for the purchase 

of fruits and vegetables and other 

reasonable expenses needed to 

implement the Program in the approved 

schools during the first quarter of the 

school year. The first quarter estimate 

may also include an amount for State 

administrative costs for the first quarter 

of the school year, as specified in 

§ 211.6(a)(1). 

(ii) All funds received and retained by 

the State agency for Program 

administration through the July 

allocation shall be obligated or 

expended by September 30th of that 

same school year. 

(iii) Funds provided to school food 

authorities through the July 1st 

allocation shall be obligated or 

expended by September 30th of that 

same school year. 

(iv) Any unobligated or unexpended 

funds shall be recovered by FNS and 

made available to the Program for 

reallocation at a later time. 

(2) October 1 allocation. (i) The 

balance of the State agency’s total 

Program funding for the school year will 

be allocated on or about October 1st of 

each school year. Any funds not 

expended or obligated by the State 

agency by the following September 30th 

of that fiscal year will be recovered by 

FNS and made available to the Program 

for reallocation at a later time. State 

agencies may only reallocate funds for 

Program costs incurred within the same 

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school year for which the funds were 

made available; 

(ii) School food authorities must 

ensure that October 1st allocation funds 

made available to participating schools 

are expended or obligated during the 

period of performance for which the 

funds have been made available, 

otherwise the funds will be recovered 

by FNS and made available to the 

Program for reallocation at a later time. 

(b) To stay within the assigned funds, 

each State agency must review the 

Program claims submitted by school 

food authorities and control Program 

reimbursement payments. The State 

agency may not advance Program funds 

to the school food authorities or to the 

schools selected to participate in the 

Program. 

§ 211.6 Use of funds. 

(a) General. Federal funds made 

available under the Program shall be 

used primarily for the purchase of fresh 

fruits and vegetables served free to all 

children enrolled in selected elementary 

schools. 

(1) State administrative costs. Each 

State agency may retain a portion of its 

total grant to support administration of 

the Program. The amount that may be 

retained must be determined prior to 

determining the school allocations and 

must be the lesser of 5 percent of the 

State agency’s total grant for the school 

year, or the amount required to pay the 

costs of one full-time coordinator for the 

Program in the State, as determined by 

the State agency based on the State 

personnel structure. 

(2) Local-level costs. School food 

authorities and schools shall use 

Program funds primarily for the 

purchase of fresh fruits and vegetables. 

Program funds shall not be used for 

nutrition education or Program 

promotion. Costs for planning; food 

delivery, preparation, and service; 

equipment leases and purchases; and 

other non-food expenses in connection 

with the operation of the Program shall 

not exceed 15 percent of a school’s total 

grant for the school year. 

(3) State agencies may assess Program 

operations during the school year and 

may reallocate funds to school food 

authorities in the State. However, any 

such reallocations of funds shall only be 

made during the school year for which 

the funds became available and shall be 

expended or obligated during that same 

school year. 

§ 211.7 Payment process to States. 

(a) Letter of credit. FNS will generally 

make payments available by means of a 

letter of credit issued in favor of the 

State agency. The State agency will 

receive funds for reimbursement to 

participating school food authorities 

through procedures established by FNS 

in accordance with 7 CFR part 3016. 

The State agency must minimize the 

time that elapses between the drawing 

of funds from the letter of credit and the 

disbursement of those funds to pay the 

Claims for Reimbursement. FNS may, at 

its option, reimburse a State agency by 

Treasury check. FNS will pay with 

funds available in settlement of a valid 

claim. 

(b) Recovery of funds. FNS will 

recover any Federal funds made 

available to the State agency under this 

part which are in excess of obligations 

reported at the end of each fiscal year 

in accordance with 7 CFR 3016.23, 

‘‘Period of Availability of Funds’’, and 

7 CFR 3016.50–3016.52, ‘‘After-theGrant-Requirements’’. Such recoveries 

must be reflected by a related 

adjustment in the State agency’s letter of 

credit. 

§ 211.8 Reimbursement for school food 

authorities. 

(a) Reimbursement payments to 

nonprofit school food service operations 

must be made only to school food 

authorities operating the Program under 

a written agreement with the State 

agency. Such payments may be made for 

the purchase of fresh fruits and 

vegetables and other allowable costs in 

connection with the Program. 

(b) Each State agency must maintain 

Program records as necessary to support 

the reimbursement payments made to 

school food authorities and the reports 

submitted to FNS under this part. Such 

records must be retained for a period of 

3 years. 

§ 211.9 Claims for reimbursement. 

(a) Schools must submit expenditure 

data to their school food authority 

providing sufficient detail and 

documentation to justify the monthly 

reimbursement claimed by the school 

food authority. Schools shall certify that 

the information is true and correct. Such 

expenditure data for each month must 

include the cost of fresh fruits and 

vegetables purchased for the program 

that month and allowable non-food 

costs for that month. 

(b) In submitting a Claim for 

Reimbursement to the State agency, 

each school food authority must certify 

that: 

(1) The claim is true and correct; 

(2) Records are available to support 

the claim; 

(3) The claim is in accordance with 

the existing agreement, and 

(4) Payment has not been received. If 

the first or last month of Program 

operations for any year contains 10 

operating days or less, such a month 

may be added to the Claim for 

Reimbursement for the appropriate 

adjacent month; however, Claims for 

Reimbursement may not combine 

operations occurring in two fiscal years. 

(c) A final Claim for Reimbursement 

shall be postmarked and/or submitted to 

the State agency not later than 60 days 

following the last day of the full month 

covered by the claim. State agencies 

may establish shorter deadlines at their 

discretion. Claims not postmarked and/ 

or submitted within 60 days shall not be 

paid with Program funds unless FNS 

determines that an exception should be 

granted. 

(d) The State agency shall review all 

Claims for Reimbursement and discuss 

any discrepancies in the claim with the 

school food authority. The State agency 

may make adjustments on claims and 

may disallow payment of any claim, in 

whole or in part, that is inconsistent 

with the Program requirements or FNS 

implementation memoranda. 

(e) If FNS does not concur with the 

State agency’s action in paying a claim, 

FNS shall assert a claim against the 

State agency for the amount of such 

claim. In all such cases, the State agency 

shall have full opportunity to submit to 

FNS evidence or information to justify 

the action taken. If FNS determines the 

State agency’s payment of a claim was 

unwarranted, the State agency shall 

promptly pay to FNS the amount of the 

claim. 

(f) The Secretary has authority to 

settle and to adjust any claims arising 

under the Program, and to compromise 

or deny such claim or any part thereof. 

The Secretary also has the authority to 

waive such claims if the Secretary 

determines that to do so would serve the 

purposes of the Program. This provision 

shall not diminish the authority of the 

Attorney General of the United States 

under section 516 of Title 28, U.S. Code, 

to conduct litigation on behalf of the 

United States. 

(g) The State agency shall maintain all 

records pertaining to action taken under 

this section for a period of three years 

after the date of submission of the final 

Financial Status Report (SF–425), 

except that, if audit findings have not 

been resolved, such records shall be 

retained beyond the three-year period 

for as long as required for the resolution 

of the issues. 

§ 211.10 Eligibility requirements. 

(a) State agency outreach to eligible 

schools. (1) Each State agency is 

required to conduct outreach to all 

elementary schools, including Native 

American schools, that participate in 

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10994 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 

the NSLP and have the highest 

proportion of students certified eligible 

for free and reduced price NSLP meals 

in the State. In cases in which FNS 

administers part of the Program in a 

State, the State agency and FNS shall 

coordinate outreach activities to ensure 

that all eligible schools are contacted. 

As part of the State agency’s outreach 

requirement, such schools must be 

notified of: 

(i) The eligibility of such schools for 

the Program; 

(ii) That Program funding is available; 

(iii) That priority is given to schools 

with the highest need; and 

(iv) That the school would be likely 

to be selected to participate in the 

Program. At a minimum, the State 

agency must provide information to all 

elementary schools where at least 50 

percent of the students are certified for 

free and reduced-price lunches and 

actively target those schools with the 

highest need and encourage them to 

participate in the Program. 

(2) In cases in which there are more 

schools eligible for the Program than 

can be funded for participation, the 

State agency may limit outreach to only 

those schools with the highest 

percentages of free and reduced-price 

certified students. 

(3) In situations in which a State 

agency does not have enough 

elementary schools with high 

percentages of students certified for free 

and reduced-price lunches in the NSLP, 

the State agency may extend Program 

outreach to other schools including 

those in which the free and reducedprice certified student population is 

below the 50 percent level. When 

soliciting such schools, priority for 

participation in the Program shall still 

be given to the schools that have the 

highest proportion of free and reduced 

price certified students. 

(4) The outreach process shall be 

conducted prior to selecting any school 

for participation in the Program and 

may be conducted in collaboration with 

the school food authorities. 

(b) Per-student allocation. State 

agencies shall allocate from $50 to $75 

per student to operate the Program each 

school year. The per-student allocation 

for each school may vary by school 

within the established allocation range. 

(c) Selection criteria. (1) Elementary 

schools that meet the following criteria 

may be selected for participation in the 

Program: 

(i) Schools in which not less than 50 

percent of the students are certified 

eligible for free or reduced price school 

lunches, except as noted in paragraph 

(c)(2) of this section, with priority for 

selection given to those schools that 

serve the highest percentage of free and 

reduced price certified students. 

(ii) Schools that have submitted an 

application for participation in 

accordance with paragraph (d) of this 

section; and 

(iii) Schools that have not been 

documented as being deficient in 

managing any FNS program or that have 

no outstanding administrative findings 

documenting violations of the 

requirements of any FNS program. 

(2) Applicant schools in which fewer 

than 50 percent of the students are 

certified as eligible for free and reduced 

price meals shall only be selected to 

participate in the program if all of the 

eligible higher need schools in the State 

have been selected for participation in 

the Program and the State agency has 

not reached its statewide participation 

goal. When selecting such schools, 

priority shall be given to schools in 

descending order beginning with those 

schools that serve the highest 

percentage of free and reduced price 

certified students. 

(3) A State agency may only impose 

additional selection criteria with the 

approval of FNS if the State agency has 

more schools at the same need level 

than can be funded, and if such criteria 

are not inconsistent with the provisions 

in paragraph (c) of this section. 

(d) Application process. Each year, 

the State agency shall solicit 

applications for participation from the 

elementary schools with the highest 

number of children certified for free and 

reduced-price meals. Each school must 

submit the application to operate the 

Program in the following school year to 

the State agency through their school 

food authority. At a minimum, the 

school application shall include: 

(1) The total number of enrolled 

students and the percentage certified 

eligible for free and reduced price 

meals; 

(2) A certificate of support for 

participation in the Program signed by 

the school food manager, school 

principal and district superintendent or 

equivalent position, as determined by 

the school; and 

(3) A program implementation plan 

that includes efforts to integrate the 

Program with other initiatives to 

promote health and nutrition, reduce 

overweight and obesity, or promote 

physical activity. It is recommended 

that the plan also include a description 

of partnership with one or more entities, 

such as produce, fruit and vegetable 

industry groups and grocery stores, local 

colleges and universities or other 

organizations that will provide nonFederal resources to the school in 

support of the Program’s goals. 

(e) Agreement. Each school food 

authority must enter into a written 

agreement with the State agency to offer 

the Program. Under such agreement, the 

school food authority will be 

responsible for the operation of the 

Program in schools within its 

jurisdiction. Such agreement may be 

amended, suspended, or terminated as 

determined by the State agency in 

consultation with FNS. The agreement 

between the State agency and the school 

food authority will ensure that the 

school food authority will require the 

selected schools to: 

(1) Make free fresh fruit and 

vegetables available to all enrolled 

children attending the participating 

school; 

(2) Offer the Program during the 

regular school year, excluding holidays 

and summer break; 

(3) Serve fresh fruits and vegetables to 

students during the school day, at least 

twice a week, and separately from the 

National School Lunch Program and 

School Breakfast Program service times; 

(4) Offer a variety of fresh fruits and 

vegetables as defined in § 211.2 to 

children. The types of fruits and 

vegetables and portion sizes should 

reflect the ages and preferences of 

students. Frozen, canned, dried and 

other types of processed fruits and 

vegetables are not allowed; 

(5) If dip for vegetables is provided, it 

must be fat-free or low-fat and must be 

limited to a 2 ounce serving size. Dip for 

fruit is not allowed; 

(6) Limit the service of cooked fresh 

vegetables to no more than once each 

week and only when included as part of 

a nutrition education lesson. Other 

ingredients in the cooked fresh 

vegetable dish must be fat-free or lowfat and are not reimbursable; 

(7) Publicize the availability of free 

fresh fruit and vegetables for children 

widely within the school through use of 

the public address system, flyers and 

other usual means of communication 

and ensure that the only adults allowed 

to receive FFVP components are 

teachers who are in the classroom with 

the students during the FFVP food 

service; 

(8) Integrate Program activities with 

other school efforts to promote health, 

nutrition, healthy weight and physical 

activity; 

(9) Participate in Program training 

offered by the school food authority 

and/or State agency, as applicable; 

(10) Use Program funds primarily for 

the purchase of fresh fruits and 

vegetables; 

(11) Maintain a financial management 

system as prescribed by the State agency 

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and obligate funds on a timely manner 

as instructed in § 211.5 of this part; 

(12) Limit allowable non-food costs to 

no more than 15 percent of the school’s 

total grant; 

(13) Submit timely program 

expenditure information to the school 

food authority to enable the school food 

authority to submit consolidated 

reimbursement claims for the purchase 

of fresh fruits and vegetables served to 

students and allowable non-food 

expenses only; 

(14) Acknowledge that failure to 

submit accurate expenditure 

information will result in the 

disallowance of payments and may 

result in suspension or termination from 

the Program; 

(15) Acknowledge that if failure to 

submit accurate expenditure 

information or claims reflects 

embezzlement, willful misapplication of 

funds, theft, or fraudulent activity, the 

penalties specified in § 210.26 of this 

chapter will apply; 

(16) Comply with the requirements of 

the Department’s regulations respecting 

nondiscrimination (7 CFR parts 15, 15a, 

and 15b); 

(17) Comply with the applicable 

procurement requirements found at 

§ 211.13; 

(18) Follow hazard analysis and 

critical control point (HACCP) 

principles, and sanitation and health 

standards established under State and 

local law and regulations in 

conformance with § 210.13 and § 220.7, 

respectively, of this chapter for schools 

participating in the National School 

Lunch and School Breakfast Programs; 

(19) Comply with all Program 

requirements specified in this part; and 

(20) When requested, make all records 

pertaining to the Program available to 

the State agency and to FNS for audit 

and administrative review, at any 

reasonable time and place. Such records 

must be retained for a period of three 

years after the end of the fiscal year to 

which they pertain, except that, if audit 

findings have not been resolved, the 

records must be retained beyond the 

three-year period as long as required for 

the resolution of the issues raised by the 

audit. 

§ 211.11 Reporting and recordkeeping. 

(a) Reporting responsibilities. 

Participating State agencies must submit 

forms and reports to FNS to demonstrate 

compliance with Program requirements. 

The reports include, but are not limited 

to the following: 

(1) Annual FFVP Report. Each State 

agency must submit an annual report to 

FNS by November 1st of the current 

school year disclosing the total number 

of schools in the state eligible to 

participate in the program, the number 

of schools that applied for participation 

in the Program, the schools selected for 

the Program, the total enrollment and 

the percentages of students certified for 

free and reduced price meals in the 

participating schools and the per 

student allocation provided for each of 

the participating schools, the number of 

schools that applied for participation 

and were not selected and the 

percentage of free and reduced price 

certified students served by such 

schools. 

(2) Quarterly report. Each State 

agency must submit to FNS a quarterly 

Financial Status Report (SF–425) on the 

use of Program funds. Such report must 

be postmarked and/or submitted no 

later than 30 days after the end of each 

fiscal year quarter; 

(3) End of year report. Each State 

agency must submit a final SF–425 for 

each fiscal year. This final fiscal year 

closeout report must be postmarked 

and/or submitted to FNS within 120 

days after the end of each fiscal year or 

part thereof that the State agency 

administered the Program. Obligations 

must be reported only for the fiscal year 

during which the obligations occur. FNS 

will not be responsible for reimbursing 

Program obligations reported later than 

120 days after the close of the fiscal year 

in which they were incurred. Closeout 

procedures are to be carried out in 

accordance with 7 CFR part 3016. 

(b) Recordkeeping responsibilities. 

State agencies and participating school 

food authorities are required to maintain 

records to demonstrate compliance with 

Program requirements. School food 

authorities must maintain on file each 

monthly Claim for Reimbursement and 

all supporting documentation by school. 

Records shall be retained as specified in 

§ 210.23(c) of this chapter. School food 

authorities must make this information 

available to the Department and the 

State agency upon request. 

§ 211.12 Special responsibilities of 

schools. 

(a) In addition to the requirements of 

§ 211.10(e), schools selected to 

participate in the Program must comply 

with the following: 

(1) Have an implementation plan to 

operate the Program as required in the 

agreement between the school food 

authority and the State agency; 

(2) When possible, partner with 

entities that can provide non-Federal 

resources to the Program; and 

(3) Encourage the involvement of 

parents and the community in activities 

that enhance the Program such as 

seeking program partners and other 

support activities as determined by the 

school. 

(b) A State agency may establish 

additional school responsibilities with 

the approval of FNS if such 

responsibilities are consistent with the 

provisions of this part and support the 

goals of the Program. 

§ 211.13 Procurement standards. 

(a) General. In the operation and 

administration of the Program, State 

agencies and school food authorities 

shall comply with the requirements of 7 

CFR part 210 and 7 CFR parts 3015, 

3016 and 3019, as applicable, which 

implement the applicable Office of 

Management and Budget (OMB) 

Circulars, concerning the procurement 

of all goods and services with nonprofit 

school food service account funds. 

(b) Geographic preference. (1) School 

food authorities participating in the 

Program, as well as State agencies 

making purchases on behalf of such 

school food authorities, may apply a 

geographic preference when procuring 

unprocessed locally grown or locally 

raised fresh fruits and vegetables. When 

utilizing the geographic preference to 

procure such products, the school food 

authority making the purchase or the 

State agency making purchases on 

behalf of such school food authorities 

have the discretion to determine the 

local area to which the geographic 

preference option will be applied; 

(2) For the purpose of applying the 

optional geographic preference in 

paragraph (b)(1) of this section, 

‘‘unprocessed locally grown or locally 

raised fresh fruits and vegetables’’ 

means only those agricultural products 

that retain their inherent character. For 

purposes of the FFVP, the effects of the 

following processes shall not be 

considered as changing fresh fruits and 

vegetables into a product of a different 

kind or character: cooling; refrigerating; 

size adjustment made by peeling, 

slicing, dicing, cutting, chopping, 

shucking: washing; packaging (such as 

placing fruit in cartons) and bagging 

(such as placing fruits or vegetables in 

bags or combining two or more types of 

vegetables or fruits in a single package). 

§ 211.14 Program assistance and 

monitoring. 

(a) Program assistance. Each State 

agency must provide training and 

technical assistance to the school food 

authorities to enable them to operate the 

Program successfully in selected 

schools. The training for new schools 

shall cover all Program requirements. 

(b) Program monitoring. (1) A school 

food authority must review each 

participating school within the first year 

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10996 Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 

of operation to ensure that the school is 

conducting the Program in accordance 

with the requirements of this part and 

FNS guidance. This general review, 

conducted in conjunction with the onsite review required under § 210.8 of 

this chapter, will ensure that the 

participating school has a financial 

system in place, including a budget and 

a timeline for expending Program funds, 

and is using Program funds as 

instructed by this part and FNS 

guidance. 

(2) A State agency must review the 

Program performance for compliance 

with the provisions of this part. This 

review, to be conducted as specified by 

the Secretary in guidance, may take 

place in conjunction with any 

administrative review or Federal 

oversight activity required by this title. 

(c) Corrective action. Corrective action 

is required for any violation cited in a 

Program review authorized in this 

section. Corrective actions may include 

technical assistance, training, 

recalculation of data to ensure the 

correctness of any Claim for 

Reimbursement that is being prepared at 

the time of the review, or other actions 

established by the State agency. 

(d) Investigations. Each State Agency 

must promptly investigate complaints 

received or irregularities noted in 

connection with the operation of the 

Program and must take appropriate 

action to correct any irregularities. State 

Agencies must maintain on file 

evidence of such investigations and 

actions. The Office of Inspector General 

(OIG) of the Department must make 

investigations at the request of the State 

Agency or if FNS or FNSRO determines 

investigations by OIG are appropriate. 

§ 211.15 Withholding payments. 

In accordance with Departmental 

regulations at § 3016.43 and § 3019.62 of 

this chapter, the State agency must 

withhold Program payments, in whole 

or in part, to any school food authority 

that has failed to comply with the 

provisions of this part. Program 

payments must be withheld until the 

school food authority takes corrective 

action satisfactory to the State agency, 

or gives evidence that such corrective 

action will be taken, or until the State 

agency terminates the grant in 

accordance with § 211.16 of this part. 

Subsequent to the State agency’s 

acceptance of the corrective actions, 

payments will be released for any 

claims in accordance with the 

provisions of this part. 

§ 211.16 Suspension, termination and 

grant closeout procedures. 

Whenever it is determined that a State 

agency has materially failed to comply 

with the provisions of this part, or with 

FNS guidelines, FNS may suspend or 

terminate the Program or take any other 

action as may be available and 

appropriate. FNS and the State agency 

must comply with the provisions of 7 

CFR part 3016 concerning grant 

suspension, termination and closeout 

procedures. Furthermore, the State 

agency must apply these provisions, or 

the parallel provisions of 7 CFR part 

3019, as applicable, to suspension or 

termination of the Program in school 

food authorities due to repeated failure 

to meet Program requirements, as 

documented by the State agency. 

§ 211.17 Penalties. 

Whoever embezzles, willfully 

misapplies, steals, or obtains by fraud 

any funds, assets, or property provided 

under this part whether received 

directly or indirectly from the 

Department, shall, if such funds, assets, 

or property are of a value of $100 or 

more, be fined no more than $25,000 or 

imprisoned not more than 5 years or 

both; or if such funds, assets, or 

property are of a value of less than $100, 

be fined not more than $1,000 or 

imprisoned not more than 1 year or 

both. Whoever receives, conceals, or 

retains for personal use or gain, funds, 

assets, or property provided under this 

part, whether received directly or 

indirectly from the Department, 

knowing such funds, assets, or property 

have been embezzled, willfully 

misapplied, stolen or obtained by fraud, 

shall be subject to the same penalties. 

§ 211.18 Management evaluations and 

audits. 

(a) Unless otherwise exempt, audits at 

the State and school food authority 

levels must be conducted in accordance 

with OMB Circular A–133 and the 

Department’s implementing regulations 

at 7 CFR part 3052. For availability of 

the OMB Circular mentioned in this 

paragraph, please refer to 5 CFR part 

1310.3. 

(b) Each State agency must provide 

FNS with full opportunity to conduct 

management evaluations (including 

visits to schools) of any operations of 

the State agency under the Program and 

provide OIG with full opportunity to 

conduct audits (including visits to 

schools) of all operations of the State 

agency under the Program. Each State 

agency must make its records available, 

including records of the receipt and 

expenditure of funds under the 

Program, when FNS or OIG reasonably 

requests. OIG must also have the right 

to make audits of the records and 

operations of any school. 

§ 211.19 Educational prohibitions. 

In carrying out the provisions of the 

Act, the Department shall not impose 

any requirements with respect to 

teaching personnel, curriculum, 

instructions, methods of instruction, or 

materials of instruction in any school as 

a condition for participation in the 

Program. 

§ 211.20 Other State agency 

responsibilities. 

(a) State agencies, or FNSROs where 

applicable, shall disallow any portion of 

a claim and recover any payment made 

to a school food authority that was not 

properly payable under this part. State 

agencies will use their own procedures 

to disallow claims and recover 

overpayments already made. 

(b) Each State agency shall maintain 

all records pertaining to action taken 

under this section. Such records shall be 

retained for a period of three years after 

the date of the submission of the final 

Financial Status Report, except that, if 

audit findings have not been resolved, 

the records shall be retained beyond the 

three-year period for as long as required 

for the resolution of the issues raised by 

the audit. 

(c) If FNS does not concur with the 

State agency action in paying a claim or 

a reclaim, or in failing to collect an 

overpayment FNS shall assert a claim 

against the State agency for the amount 

of such claim, reclaim or overpayment. 

In all such cases, the State agency shall 

have full opportunity to submit to FNS 

evidence or information concerning the 

action taken. If in the determination of 

FNS, the State agency’s action was 

unwarranted, the State agency shall 

promptly pay to FNS the amount of the 

claim, reclaim, or overpayment. 

(d) The amounts recovered by the 

State agency from schools may be 

utilized to: 

(1) Make reimbursement payments for 

fresh fruits and vegetables served during 

the fiscal year for which the funds were 

initially available and 

(2) Repay any State funds expended 

in the reimbursement of claims under 

the program and not otherwise repaid. 

Any amounts recovered which are not 

so utilized shall be returned to FNS in 

accordance with the requirements of 7 

CFR part 210. 

§ 211.21 Nondiscrimination. 

(a) In the operation of the Program, no 

child shall be denied benefits or be 

otherwise discriminated against because 

of race, color, national origin, age, sex, 

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Federal Register / Vol. 77, No. 37 / Friday, February 24, 2012 / Proposed Rules 10997 

or disability. State agencies and school 

food authorities shall comply with the 

requirements of Title VI of the Civil 

Rights Act of 1964; title IX of the 

Education Amendments of 1972; section 

504 of the Rehabilitation Act of 1973; 

the Age Discrimination Act of 1975; 

Department of Agriculture regulations 

on nondiscrimination (7 CFR parts 15, 

15a and 15b); and FNS Instruction 113– 

6. 

(b) When accommodating children 

due to medical or special dietary needs, 

schools must follow the applicable 

provisions in § 210.10(g) of this chapter. 

§ 211.22 Program information. 

School food authorities and schools 

desiring information about the Program 

should contact their State educational 

agency or the appropriate FNS Regional 

Office at the address or telephone 

number listed on the FNS Web site 

(www.fns.usda.gov/cnd). 

PART 235—STATE ADMINISTRATIVE 

EXPENSE FUNDS 

1. The authority citation for part 235 

continues to read as follows: 

Authority: Secs. 7 and 10 of the Child 

Nutrition Act of 1966, 80 Stat. 888, 889, as 

amended (42. U.S.C. 1776, 1779). 

2. Section 235.1 is amended by 

adding the phrase ‘‘and the Fresh Fruit 

and Vegetable Program (7 CFR part 

211).’’ to the end of the second sentence. 

Dated: February 10, 2012. 

Kevin W. Concannon, 

Under Secretary, Food, Nutrition, and 

Consumer Services. 

[FR Doc. 2012–4181 Filed 2–23–12; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF ENERGY 

10 CFR Part 431 

[Docket Number EERE–2010–BT–STD– 

0048] 

RIN 1904–AC04 

Energy Conservation Program: Energy 

Conservation Standards for 

Distribution Transformers; Correction 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of proposed rulemaking 

and public meeting; correction. 

SUMMARY: The U.S. Department of 

Energy (DOE) published a notice of 

proposed rulemaking on February 10, 

2012, which proposed to amend DOE 

regulations regarding energy 

conservation standards for distribution 

transformers. It was recently discovered 

that values in certain tables of the 

proposed rule are inaccurate or absent. 

This notice corrects these inaccuracies 

as described. 

DATES: DOE will accept comments, data 

and information regarding this 

correction before and after the February 

23, 2012, public meeting, but no later 

than April 10, 2012. 

FOR FURTHER INFORMATION CONTACT: 

James Raba, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–8654. Email: 

Jim.Raba@ee.doe.gov. 

Ami Grace-Tardy, U.S. Department of 

Energy, Office of the General Counsel, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585–0121. 

Telephone: (202) 586–5709. Email: 

Ami.Grace-Tardy@hq.doe.gov. 

SUPPLEMENTARY INFORMATION:

Background 

Title III, Part B of the Energy Policy 

and Conservation Act of 1975 (EPCA or 

the Act), Public Law 94–163 (42 U.S.C. 

6291–6309, as codified), established the 

Energy Conservation Program for 

‘‘Consumer Products Other Than 

Automobiles.’’ Part C of Title III of 

EPCA (42 U.S.C. 6311–6317) established 

a similar program for ‘‘Certain Industrial 

Equipment,’’ including distribution 

transformers. The Energy Policy Act of 

1992 (EPACT 1992), Public Law 102– 

486, amended EPCA and directed DOE 

to prescribe energy conservation 

standards for distribution transformers. 

(42 U.S.C. 6317(a)) On October 12, 2007, 

DOE published a final rule that 

established energy conservation 

standards for liquid-immersed 

distribution transformers and mediumvoltage, dry-type distribution 

transformers (72 FR 58190). The Energy 

Policy Act of 2005 (EPACT 2005), 

Public Law 109–25, amended EPCA to 

establish energy conservation standards 

for low-voltage, dry-type distribution 

transformers. (42 U.S.C. 6295(y)) On 

February 10, 2012, DOE published a 

proposed rule with amended energy 

conservation standards for liquidimmersed, medium-voltage dry-type, 

and low-voltage, dry-type distribution 

transformers (77 FR 7282). 

Need for Correction 

As published, values in certain tables 

of the proposed rule are inaccurate or 

absent. DOE solicits public comment on 

the changes contained in this document 

as part of the February 10 NOPR. 

Corrections 

In proposed rule FR Doc. 2012–2642 

appearing on page 7282 in the issue of 

Friday, February 10, 2012, the following 

corrections should be made: 

1. On page 7285, Table I.5 is corrected 

to read as follows: 

TABLE I.5—PROPOSED ELECTRICAL EFFICIENCIES FOR ALL LIQUID-IMMERSED DISTRIBUTION TRANSFORMER EQUIPMENT

CLASSES (COMPLIANCE STARTING JANUARY 1, 2016) 

Standards by kVA and equipment class 

Equipment class 1 Equipment class 2 

kVA % kVA % 

10 .................................................................................. 98.70 15 .................................................................................. 98.65 

15 .................................................................................. 98.82 30 .................................................................................. 98.83 

25 .................................................................................. 98.95 45 .................................................................................. 98.92 

37.5 ............................................................................... 99.05 75 .................................................................................. 99.03 

50 .................................................................................. 99.11 112.5 ............................................................................. 99.11 

75 .................................................................................. 99.19 150 ................................................................................ 99.16 

100 ................................................................................ 99.25 225 ................................................................................ 99.23 

167 ................................................................................ 99.33 300 ................................................................................ 99.27 

250 ................................................................................ 99.39 500 ................................................................................ 99.35 

333 ................................................................................ 99.43 750 ................................................................................ 99.40 

500 ................................................................................ 99.49 1000 .............................................................................. 99.43 

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