Administrative Reviews in the School Nutrition Programs, 50170-50194 [2016-17231]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 81, Number 146 (Friday, July 29, 2016)]
[Rules and Regulations]
[Pages 50170-50194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17231]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220 and 235

[FNS 2014-0011]
RIN 0584-AE30


Administrative Reviews in the School Nutrition Programs

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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SUMMARY: As required by the Healthy, Hunger-Free Kids Act of 2010, this 
final rule revises the State agency's administrative review process in 
the National School Lunch Program and School Breakfast Program to 
establish a unified accountability system designed to ensure that 
school food authorities offering school meals comply with program 
requirements. The updated administrative review process includes new 
procedures, retains key existing requirements from the Coordinated 
Review Effort and the School Meals Initiative, provides new review 
flexibilities and efficiencies for State agencies, and simplifies 
fiscal action procedures. In addition to establishing a unified 
administrative review process, this rule requires State Agencies public 
disclosure of a summary of the administrative review results. These 
changes are expected to strengthen program integrity through a more 
robust, effective, and transparent process for monitoring school 
nutrition program operations.

DATES: This rule is effective September 27, 2016.

FOR FURTHER INFORMATION CONTACT: Sarah Smith-Holmes, Child Nutrition 
Monitoring and Operations Support Division, Food and Nutrition Service, 
USDA, 3101 Park Center Drive, Alexandria, Virginia 22302; telephone: 
(703) 605-3223.

SUPPLEMENTARY INFORMATION: 

I. Background

    Federally supported school nutrition programs are operated in 56 
State Agencies (SAs) with more than 100,000 schools and Residential 
Child Care Institutions participating. Ensuring that the programs are 
carried out in the manner prescribed in statute and regulation is a key 
administrative responsibility at every level. Federal, State, and local 
program staff share in the responsibility to ensure that all aspects of 
the programs are conducted with integrity and that taxpayer dollars are 
being used as intended.
    Improving program integrity and reducing improper payments has been 
a long-standing priority for the Department of Agriculture (USDA). 
Periodic program evaluations, including the Access, Participation, 
Eligibility and Certification (APEC) studies, show that improper 
payments result from errors made in the processes used to determine 
eligibility for free or reduced price meals, as well as from errors 
made during daily program operations and meal service. USDA and its SA 
partners have devoted significant time and effort in making system 
improvements and process reforms over the last several years, which are 
expected to improve integrity and deliver long-term reductions in error 
rates. These efforts include on-going technical assistance and 
implementation of reforms made by Public Law 111-296, the Healthy, 
Hunger-Free Kids Act of 2010 (HHFKA). Along with provisions aimed at 
improving program access and delivering healthier school meals, HHFKA 
reforms support program integrity through strengthening the use of 
direct certification, providing for community eligibility, establishing 
professional standards for school nutrition directors and staff, 
targeting a second review of applications in districts with high rates 
of application processing errors, and other provisions. USDA has 
already implemented the majority of these provisions through separate 
rulemaking. USDA has also established a new Office of Program Integrity 
for Child Nutrition Programs within the Food and Nutrition Service.
    SAs that administer the school meal programs play a primary role in 
ensuring school food authorities (SFAs) are properly operating the 
programs. In addition to providing training and technical assistance, 
SAs are responsible for regularly monitoring SFA operations.
    Nearly 25 years ago, in 1991 and 1992, USDA established regulations 
in 7 CFR 210.18 for an administrative review process to ensure SFAs 
complied with National School Lunch Program (NSLP) requirements. The 
process, known as Coordinated Review Effort (CRE), required SAs to 
conduct on-site administrative reviews of SFAs once every five years, 
and covered critical and general areas of review. The CRE review 
focused primarily on benefit eligibility, meal counting and claiming 
procedures, meal pattern and other general areas of compliance.
    In 1995, SAs began to evaluate the nutritional quality of school 
meals under USDA's School Meals Initiative (SMI). A key component of 
the SMI review was the SA's nutrient analysis of the weekly school 
meals to determine compliance with Recommended Dietary Allowances for 
protein, calcium, iron and vitamins A and C; recommended minimum 
calorie levels; and the Dietary Guidelines for Americans.
    More recently, section 207 of the HHFKA amended section 22 of the 
Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1769c, 
to make five changes to the administrative review requirements. The 
first three were implemented through the final rule, Nutrition 
Standards in the National School Lunch and School Breakfast Programs 
(77 FR 4088), which was issued January 26, 2012. Those changes 
involved: (1) including both NSLP and School Breakfast Program (SBP) in 
the administrative review; (2) confirming that the weekly meals offered 
meet meal patterns and dietary specifications, which made the SMI 
obsolete; and (3) implementing a new 3-year review cycle, as opposed to 
the former 5-year cycle. This rule does not make changes to these three 
previously promulgated provisions, but instead updates the 
administrative review procedures to reflect these changes.
    This final rule implements the remaining two statutory provisions 
from section 207 of HHFKA, requiring that:
    1. The administrative review process be a unified accountability 
system in which schools in each local education agency (LEA) are 
selected for review based on criteria established by the Secretary; and
    2. When any SFA is reviewed under this section, ensure that the 
final results of the review by the SA are posted and otherwise made 
available to the public on request in an accessible, easily understood 
manner in accordance with guidelines promulgated by the Secretary.
    This final rule largely reflects the updated administrative review 
process developed by the School Meals Administrative Review Reinvention 
Team (SMARRT), a 26-member team consisting of staff from Food and 
Nutrition Service (FNS) Headquarters, the seven Regional Offices, and 
SA staff from Kansas, Michigan, New York, North Carolina, Oregon, 
Pennsylvania

[[Page 50171]]

and Texas (representing each of the FNS Regions). FNS assembled the 
team to carry out HHFKA's mandate for a unified accountability system. 
The group worked together for one year to develop a simplified, unified 
monitoring process that includes new, flexible procedures and combines 
key aspects of the CRE and SMI reviews. The team also sought to create 
a comprehensive monitoring process that includes all the school 
nutrition programs. Another priority was to simplify review procedures 
in response to SAs' needs.
    The administrative review process to be codified in 7 CFR 210.18:
     Promotes overall integrity in the school nutrition 
programs by incorporating key requirements of the CRE and SMI reviews.
     Enables the SA to monitor essential requirements of 
Afterschool Snacks and Seamless Summer Option (SSO), the Special Milk 
Program (SMP), and the Fresh Fruit and Vegetable Program (FFVP) while 
conducting the administrative review.
     Includes recommended off-site monitoring approaches to 
offer SAs the ability to conduct reviews more efficiently by involving 
or consulting with off-site SA staff that have the skills needed to 
address specific monitoring areas.
     Includes risk-based approaches to enable the SA to target 
error-prone areas and focus its monitoring resources on SFAs and 
schools needing the most compliance assistance.
     Adds Resource Management to the general areas of review to 
better assess the financial condition of the nonprofit food service.
     Promotes consistency in the review process across all SAs.
     Includes updated, user-friendly forms; new risk assessment 
tools; and statistical sampling for increased SA efficiency. The forms 
and tools associated with the updated administrative review process 
will be addressed separately in a 60-day notice to be published in the 
Federal Register to align with the implementing administrative review 
rule.
    The main focus of the updated administrative review under 7 CFR 
210.18, continues to be the NSLP and SBP; however, the SA will perform 
review procedures in an updated and more flexible manner. In an effort 
to create a unified accountability system, the SA will also be required 
to monitor the NSLP Afterschool Snacks and SSO, the FFVP, and the SMP 
in a manner that is consistent with the review process established in 7 
CFR 210.18, as applicable. Detailed procedures for the administrative 
review process for the NSLP, SBP and other school meals programs are 
provided in the updated FNS Administrative Review Manual, which is a 
guidance document available at an online portal for SAs.
    Most of the regulatory changes needed to update the administrative 
review process are found in 7 CFR 210.18. However, this rule makes 
changes throughout 7 CFR parts 210, 215 and 220 to achieve a unified 
accountability system for the school nutrition programs. A comparison 
chart at the end of the preamble summarizes the major changes in these 
parts.
    In addition, the rule removes the definition of ``large school food 
authority'' from 7 CFR 210.18, where it is no longer needed, and adds 
it to 7 CFR 235.2, where it continues to apply.
    This rule also makes several changes to the SFA regulatory 
requirements to complement the administrative review process. First, 
the SFA's existing responsibilities in 7 CFR 210.14, are clarified with 
regard to indirect costs as they are to be specifically monitored by 
the SA under the updated administrative review process. Second, the SFA 
annual on-site monitoring of schools, required in 7 CFR 210.8, is 
strengthened by incorporating readily observable general areas of 
review, and by extending SFA on-site monitoring to the SBP. These 
changes are addressed in more detail later in the preamble.
    This rule also makes a number of miscellaneous edits to remove 
obsolete provisions in 7 CFR 210, and to update wording to reflect the 
diversity of certification mechanisms used in school meal programs 
beyond the traditional collection of household applications. In 
addition, this rule updates the designation of a form in 7 CFR 
210.5(d)(3), 7 CFR 210.20(a)(2), and 7 CFR 220.13(b)(2) by changing the 
references to the SF- 269, final Financial Status Report, to FNS-777, 
as approved by the Office of Management and Budget.
    While this rulemaking action was underway, FNS allowed the 
following temporary review options for SAs:
    1. Seek a waiver of the existing regulatory review procedures 
pursuant to section 12(l) of the NSLA, 42 U.S.C. 1760(l), and conduct 
reviews in accordance with the proposed administrative review process 
and the corresponding Administrative Review Manual; or
    2. Continue with the existing review procedures under 7 CFR 210.18, 
and the corresponding Coordinated Review Effort Procedures Manual, with 
the understanding that upon publication of a final rule, the SA would 
be required to implement the updated administrative review process.
    FNS provided the above flexibilities to SAs beginning in School 
Year 2013-2014. Almost all SAs requested the waiver and adopted the 
update administrative review process codified by this rule. This 
process, conducted on a shorter, 3-year cycle, has begun to generate a 
large volume of high value information that will strengthen FNS and SA 
integrity efforts over the long term. The data collected through the 
new review process will enhance the ability of FNS and SAs to monitor 
program performance. Just as importantly, the data will be a resource 
that FNS can use in its efforts to develop timely and targeted, 
evidence-based solutions to the recurring problems that give rise to 
improper payments.
    Editorial note: The words ``school'' and ``site'' are used 
interchangeably in this rule, as applicable to each program, to refer 
to the location where meals are served. This rule also uses the term 
SFA to generally refer to the governing body responsible for school 
food service operations. However, some of those responsibilities are 
fulfilled by the LEA or district, most notably the certification and 
benefit issuance process, indirect costs, competitive food sales, and 
local wellness policies. Use of the term SFA in this rule is not 
intended to imply the responsibilities reserved for the LEA have 
shifted to the SFA.

II. Summary of Public Comments

    The proposed rule was published in the Federal Register on May 11, 
2015 (80 FR 26846) seeking to revise the SA's administrative review 
process to establish a unified accountability system designed to ensure 
that SFAs comply with the NSLP and SBP requirements. The rule was 
posted for comment on www.regulations.gov and the public had the 
opportunity to submit comments on the proposal during a 60-day period 
that ended July 10, 2015.
    FNS appreciates the valuable comments provided by stakeholders and 
the public. We received 48 public comments that addressed some aspects 
of administrative review. Although not all commenters identified their 
group affiliation or commenter category, most comments were submitted 
by:

 State agencies--30 comments
 Advocates and Associations--3 comments
 School Food Authorities/Schools--1 comment

    To view all public comments on the proposed rule, go to 
www.regulations.gov and search for

[[Page 50172]]

public submissions under docket number FNS-2014-0011.
    By a large margin, the commenters supported the intent of the 
proposed rule. Two comments from individuals who did not identify with 
a SA or other organization supported the rule with no changes proposed. 
All of the comments from SAs, SFAs/schools, advocates and associations, 
and all but three of the remaining comments from individuals who did 
not identify an affiliation supported the intent of the rule, but not 
as currently written. The comments suggested ways to revise the rule. 
Several SA comments utilized a form letter.
    While there were no comments in opposition to the rule, three 
individual comments expressed negative views regarding the NSLP that 
are unrelated to the proposal. One of these comments focused on 
students' acceptance of the meal patterns, the second focused on 
students' non-acceptance of the meal patterns and a belief that all 
children should receive free meals, and the third addressed the need to 
increase awareness of what is required for a reimbursable meal.
    Many comments expressed support for FNS' efforts to facilitate 
program monitoring and enhance integrity, and suggested changes that 
FNS can easily make consistent with the intent of the rule. Some 
comments seemed to result from a misunderstanding of what was written 
in the provisions and these areas will be addressed by making 
clarifications in the preamble or by editing the regulatory text to 
improve clarity for the readers.
    The following is a summary of the public comments by key topic 
area:

3-Year Administrative Review Cycle

    Proposed Rule: The 3-year review cycle was not included in the 
proposed rule to update the administrative review process.
    Public Comments: Twenty-eight commenters addressed the 3-year 
administrative review requirement. Commenters expressed concern about 
the existing 3-year administrative review cycle and suggested returning 
to the previous 5-year review cycle. Some commenters who support 
returning to a 5-year review cycle nevertheless suggested that those 
SFAs with critical area violations or evidence of unallowable use of 
funds should be required to undergo a review every three years for two 
cycles, or more frequently depending upon the serious nature of review 
findings.
    FNS Response: The 3-year administrative review cycle will more 
strongly ensure program integrity, compliance with program rules, and 
that SFAs receive the technical assistance they need. The 3-year review 
cycle was implemented through the final rule Nutrition Standards in the 
National School Lunch and School Breakfast Programs (77 FR 4088), which 
was issued January 26, 2012. This rule does not propose changes to 
these previously promulgated provisions, but instead updates the 
language to reflect the 3-year administrative review cycle, which 
became effective in School Year 2013-2014. We have conducted nationwide 
training for SAs and continue to provide intensive technical assistance 
to support our State partners. In addition, many SAs have been able to 
utilize the available State Administrative Expense and HHFKA section 
201 funds to facilitate more frequent monitoring. SAs that face 
exceptional challenges are able to submit, until June 30, 2016, a 
request for a one-time waiver of the 3-year administrative review cycle 
to extend no later than June 30, 2018.
    Accordingly, this final rule does not include changes to the 3-year 
review cycle that is already established in 7 CFR 210.18(c).

Transparency Requirement

    Proposed Rule: The SA must post a summary of the most recent 
administrative review results for each SFA on the SA's public Web site. 
The review summary must cover eligibility and certification review 
results, an SFA's compliance with the meal patterns and the nutritional 
quality of school meals, the results of the review of the school 
nutrition environment (including food safety, local school wellness 
policy, and competitive foods), compliance related to civil rights, and 
general program participation and must be available in a format 
prescribed by FNS not later than 30 days after the SA provides the 
final results of the review to the SFA. The SA must also make a copy of 
the final administrative review report available to the public upon 
request.
    Public Comments: Twenty-seven commenters addressed the proposed 
transparency requirement. While several commenters did not support the 
public posting of administrative review results, the majority of 
comments on this provision supported the public posting of a summary of 
the administrative review results, and suggested shifting the 
responsibility for this requirement to the local (LEA/SFA) level, as 
there are public notification requirements already in place for other 
program elements and parents and interested public are likely to access 
their local school districts Web site more readily than the SA Web 
site. Commenters recommended ways to implement this transparency 
requirement, and confirmed that a sample template and format for public 
posting should be provided.
    FNS Response: FNS recognizes the concerns about requiring SAs to 
make publicly available the administrative review results. At the same 
time, the SA is responsible for the administrative review and thus 
ensuring that information is made easily accessible to all members of 
the public. This final rule continues to require that SAs publicly post 
a summary of the administrative review results. In addition, the final 
rule allows SAs the discretion to strongly encourage that SFAs post a 
summary of the results for each SFA and make the report available to 
the public upon request. This additional SA flexibility is consistent 
with the statutory intent to promote transparency and public access to 
the administrative review results. A summary of the results, must be 
posted not later than 30 days after the SA provides the final results 
of the review to the SFA.
    Accordingly, 7 CFR 210.18(m) of this final rule retains the 
requirement that SAs post the results but includes an option for the SA 
to strongly encourage an SFA to post a summary of the review results 
and make the administrative review report available to the public upon 
request.

Administrative Review Forms and Tools

    Proposed Rule: The review forms and tools were not included in the 
proposed rule to update the administrative review process.
    Public Comments: Twenty-four commenters addressed the 
administrative review forms and tools. Most commenters discussed 
perceived duplication in the administrative review forms and suggested 
reexamining the risk indicator tools and worksheets to make them more 
effective and less burdensome.
    FNS Response: The forms and tools associated with the updated 
administrative review process will be addressed separately in a 60-day 
notice published in the Federal Register that aligns the forms and the 
tools with the administrative review rulemaking. The feedback provided 
by commenters regarding duplication in the forms, assessing the 
sensitivity of the risk tools associated with the process, and 
streamlining tools and forms for ease of use will assist FNS in 
developing the separate 60-day notice.

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Fiscal Action

    Proposed Rule: Under the proposed rule at 7 CFR 210.18(l), State 
agencies would continue to be required to take fiscal action for all 
PS-1 violations and for specific PS-2 violations. The proposed rule 
expands the scope of fiscal action for certification/benefit issuance 
PS-1 violations, revises the method to calculate fiscal action for 
applicable violations, and modifies the State agency's authority to 
limit fiscal action for specific critical area violations when 
corrective action is completed.
    Public Comments: Twenty-three commenters addressed fiscal action in 
several areas of the administrative review.
    Commenters expressed concern over the expansion of fiscal action to 
the SFA for certification and benefit issuance errors. Some suggested 
this expansion should not occur and that fiscal action for benefit and 
certification errors should remain site based. Others suggested that a 
threshold for fiscal action, based on the size of the SFA, be 
established. Other commenters questioned the use of an error factor to 
determine the fiscal action amount.
    Commenters suggested when to apply fiscal action during the 
administrative review. Suggestions included: applying fiscal action for 
repeat violations of the general areas where there is purposeful intent 
to circumvent the regulations; not applying fiscal action if the 
violations identified have resulted because staff members are new, have 
misinterpreted the rules or other involuntary errors; and applying 
fiscal action for specific meal pattern errors.
    FNS Response: The consistent application of fiscal action plays a 
key role in maintaining the integrity of the NSLP and SBP. The proposed 
rule sought to expand the scope of the certification and benefit 
issuance review from the reviewed sites to the SFA level. In order to 
provide the SAs with a more accurate picture of the SFA's practices at 
all of its schools and improve program integrity, the proposed rule 
expands the scope of the certification and benefit issuance review from 
the reviewed sites to the SFA level. This change is also in step with 
the fact that most certification and benefit issuance is reviewed at 
the SFA/LEA level rather than at individual schools and that, 
therefore, most SFAs have a centralized recordkeeping system.
    Through the use of an ``error factor'' for extrapolating fiscal 
action to the SFA using a percentage based calculation, the calculation 
takes into account the size of an SFA. SFAs with fewer financial 
resources may feel a greater impact from fiscal action, but that would 
be based on the availability of resources rather than SFA size. SAs 
have the option to review a statistically valid sample of the free and 
reduced-price students on the point-of-service benefit issuance 
documents for all schools in the SFA, or they can choose to review 100 
percent of the free and reduced-price students on the point-of-service 
benefit issuance documents for all schools in the SFA s and not use the 
``factor'' approach. This final rule also clarifies that while there is 
no fiscal action required for general area violations, the SA has the 
ability to withhold funds for repeat or egregious violations occurring 
in the majority of the general areas of review.
    Accordingly, this final rule at 7 CFR 210.18(l), expands the scope 
of fiscal action for certification/benefit issuance PS-1 violations, 
revises the method to calculate fiscal action for applicable violations 
and clarifies language regarding fiscal action in the general areas of 
review.

Timelines for Completing the Administrative Review

    Proposed Rule: The SA must complete the administrative review 
during the school year in which the review was begun.
    Public Comments: Nineteen commenters addressed the timelines for 
the administrative review process. Most commenters stressed that 
requiring the completion of administrative reviews in the same school 
year in which it was begun is difficult to achieve given the timeframes 
for off-site review, on-site review, and the correspondence that occurs 
between issuing the report, accepting corrective action plans, and 
implementing corrective actions.
    FNS Response: FNS also recognizes the concerns expressed over the 
timeline for completing the administrative review. We expect that new 
efficiencies in the updated administrative review process will 
facilitate monitoring. However, to address the commenters' concerns, 
language will be modified to specify that, at a minimum, the on-site 
portion of the administrative review be completed prior to the 
conclusion of the school year in which the administrative review is 
scheduled to occur.
    Accordingly, 7 CFR 210.18(c) of this final rule includes additional 
language to clarify the timeline for completing the administrative 
review.

Resource Management General Area

    Proposed Rule: Off-site review activity is especially important for 
the Resource Management area of review which, as proposed at 7 CFR 
210.18(h)(1), would require an off-site evaluation of information to 
determine if a comprehensive review is necessary. If risk indicators 
show that a comprehensive review is necessary, SAs must complete the 
comprehensive review using procedures specified in the Administrative 
Review Manual.
    Public Comments: Eighteen commenters addressed the Resource 
Management portion of the administrative review. Most commenters stated 
that this area of the administrative review should be treated like 
Performance Standard 1 (PS-1) and Performance Standard 2 (PS-2) in 
regards to fiscal action. Others encouraged USDA to consider allowing 
additional flexibility regarding the off-site requirement for SAs to 
complete this section. Several commenters offered suggestions for 
improvement including expanding the areas covered under Resource 
Management, offering additional guidance and training, and modifying 
the administrative review forms and risk indicators.
    FNS Response: Resource Management is considered a general area of 
review and as such, fiscal action is not required. However, SAs may 
choose to withhold funds for repeated or egregious violations that are 
not corrected. FNS will update the language in the FNS Administrative 
Review Manual to include that SAs may also recover general funds on 
behalf of the non-profit school food service account as deemed 
necessary. FNS disagrees with the comments seeking additional 
flexibility in the off-site portion of the administrative review. 
Requiring an off-site review of Resource Management is necessary to 
allow the reviewer to fully prepare for the review, including 
consulting SA subject matter experts with specialized knowledge of 
Resource Management who do not typically participate in on-site 
reviews. Except for the Resource Management area, SAs have the option 
to utilize or not utilize the off-site review approach.
    At this time, FNS is not expanding the areas required for review in 
the Resource Management section of the administrative review. However, 
the language has been modified to reflect that the Resource Management 
section includes, but is not limited to, the areas identified in the 
text and that the procedures outlined in the FNS Administrative Review 
Manual should be followed. FNS is continuing to provide training and 
guidance related to the Resource Management portion of the 
administrative review. Additionally, as noted later in this section, 
FNS is

[[Page 50174]]

incorporating SA feedback regarding forms and tools as they are 
finalized.
    Accordingly, the final rule requires an off-site review component 
for the Resource Management area and includes additional language to 
clarify the areas under review in the Resource Management section at 7 
CFR 210.18(h)(1).

Scope of the Administrative Review

    Proposed Rule: The SA must monitor compliance with critical and 
general areas of the administrative review in the NSLP, SBP and other 
school meal programs, as applicable.
    Public Comments: Six commenters addressed the scope of the 
administrative review. Commenters had split opinions regarding the 
inclusion of other school meals programs, some recommended this 
requirement be reevaluated.
    FNS Response: The periodic review of all school meals programs is 
critical to ensure they are properly administered and contribute to 
improved access, nutrition, and integrity in the Federal child 
nutrition efforts. The FNS Administrative Review Manual provides a 
review methodology that focuses on key aspects of each meal program 
without being overly burdensome.
    Accordingly, 7 CFR 210.18(f) of this final rule requires the SAs to 
monitor other school meals programs during the administrative review.

SFA On-site Monitoring

    Proposed Rule: The SFA is required to annually monitor the 
operation of the NSLP and SBP at each school under its jurisdiction. As 
is currently done with the NSLP, this monitoring of the SBP would 
include the counting and claiming system used by a school and the 
general areas of review that are readily observable.
    Public Comments: Five commenters addressed the proposed SFA's 
annual on-site monitoring activities. Commenters supported adding 
readily visible general areas of review listed under 7 CFR 210.18(h) to 
the SFA's on-site review under 7 CFR 210.8(a). Regarding the SFA's on-
site review of the SBP at 7 CFR 220.11(d), commenters suggested that a 
sample, rather than 100 percent of schools operating the SBP, should be 
monitored by the SFA annually.
    FNS Response: This final rule expands the SFA's on-site monitoring 
activities as proposed to 7 CFR 210.8(a). However, FNS acknowledges 
that monitoring every SBP site annually may be a time and resource 
intensive process for SFAs. Accordingly, 7 CFR 220.11(d) of this final 
rule includes additional language to clarify that the SFA must annually 
monitor the SBP at a minimum of 50 percent of the schools operating the 
program under its jurisdiction, with each school operating the SBP to 
be monitored at least once every two years. Additionally, this final 
rule expands the SFA's on-site monitoring activities as proposed to 7 
CFR 210.8(a).

On-site Meal Observation

    Proposed Rule: To assess compliance with PS-2, the SA must observe 
a significant number of program meals at each serving line and at the 
point of service for each serving line on the day of review.
    Public Comments: A number of commenters asked FNS to define what is 
meant by ``significant number'' of meals in regards to on-site 
observation of the meal service.
    FNS Response: Although this final rule does not specify the number 
of meals that must be observed, it requires that program meals be 
observed as specified in the FNS Administrative Review Manual. 
Therefore, the SA must observe program meals at the beginning, middle 
and end of the meal service line, as well as at the point of service. 
Expectations for the observation of the meal service are further 
described in the FNS Administrative Review Manual.
    Accordingly, 7 CFR 210.18(g)(2)(i)(B) of this final rule retains 
the requirement to observe a significant number of program meals on-
site.

Miscellaneous Comments

    Some commenters had the impression that a number of terms in the 
regulatory text were being used interchangeably-- including 
``components'' for lunch and ``items'' for breakfast, and ``lunch'' and 
``meal(s).'' The terms ``component'' for lunch and ``items'' for 
breakfast are not interchangeable terms. The terms are specific to the 
NSLP and SBP, respectively, and reflect the requirements of each meal 
pattern. The term ``lunch'' is being replaced with the term 
``meal(s),'' where applicable, to indicate that both lunches and 
breakfasts must be monitored in the administrative review.
    In addition, a number of comments requested the inclusion of SAs in 
the process for finalizing the tools and forms associated with the 
administrative review. FNS recognizes the valuable knowledge that SAs 
have gained through the voluntary implementation of the updated 
administrative review process. FNS has incorporated SA feedback on the 
process, tools, and forms annually and will continue to seek SA input.
    Lastly, the regulatory citation associated with the Indirect Cost 
language added to 7 CFR 210.18, has been updated to reflect the 
implementation of 2 CFR 200.

III. Overview of the Key Changes to the Administrative Review

    The updated administrative review under 7 CFR 210.18, incorporates 
new and key procedures from the CRE and SMI reviews. It streamlines 
existing review procedures, gives SAs new review flexibilities, 
simplifies fiscal action, and includes updated review forms and new 
tools. This final rule replaces the existing CRE and SMI monitoring 
processes, and is expected to improve program integrity by providing a 
single, comprehensive, effective, and efficient SA monitoring process. 
Specific procedures for conducting the review process are described in 
the FNS Administrative Review Manual.
    The key procedures carrying forward from previous CRE and SMI 
reviews include timing of reviews, scheduling of SFAs, exit conference 
and notification, corrective action, withholding payment, SFA appeal of 
SA findings, and FNS review activity. These provisions are found in the 
amendatory language and may include minor, non-substantive technical 
changes in 7 CFR 210.18 that are not discussed in this preamble. The 
preamble focuses on new key changes, which are discussed next.

Procedures for Conducting a Review

Minimum Number of Schools
    The administrative review process under 7 CFR 210.18 requires SAs 
to review all schools with a free average daily participation of 100 or 
more and a free participation factor of 100 percent or more. In 
addition the SA must review a minimum number of schools. The final rule 
clarifies that the SA must review at least one school from each LEA. To 
be consistent with statuary language the final rule makes clear the 
requirement that the SA must select schools for review in each LEA 
using criteria established by the Secretary.
    Details regarding the minimum number of schools to be reviewed and 
procedures for ensuring that a school in each LEA is reviewed, can be 
found in the School Year 2016-2017 FNS Administrative Review Manual.
    Accordingly, the update that the SA must review at least one school 
from each LEA is outlined in 7 CFR 210.18 (e)(1) of the final rule.
Off-Site and On-Site Review Activities
    The administrative review process under 7 CFR 210.18, is a 
comprehensive

[[Page 50175]]

on-site evaluation of SFAs participating in the school meal programs. 
This final rule establishes that some administrative review activities 
can be conducted off-site, rather than during the on-site portion of 
the review. Adding the off-site approach is expected to assist the SA 
by reducing the SA's travel time and expense, enabling SAs to conduct 
the documentation review and other existing review requirements over a 
longer period of time than would be possible while on-site. This also 
allows the reviewer to seek input from specialized State staff for 
adequate review of complex documentation (e.g., financial staff).
    Off-site review activity is especially important for the Resource 
Management area of review which, as stated at 7 CFR 210.18(h)(1), 
requires an off-site evaluation of information to determine if a 
comprehensive review is necessary. For other areas of review, the off-
site review is strongly recommended but it is not required. Examples of 
possible off-site review activities include:
     Identifying the sites for review.
     Reviewing documentation such as the SFA agreement, policy 
statement, renewal application, prior review findings and corrective 
action plans.
     Obtaining and reviewing the benefit issuance document.
     Selecting student certifications for review.
     Examining the SFA's verification procedures.
     Reviewing the SFA's counting and claiming procedures and 
documentation.
     Reviewing menus, production records, and related 
documents.
     Reviewing the Offer versus Serve policy.
     Identifying the school most at risk for nutrition related 
violations and conducting a targeted menu review in that school.
     Determining the targeted menu review approach.
    The on-site review activities focus on validating the information 
obtained during the SFA off-site review and those aspects of program 
operations that can best be reviewed on-site. These types of on-site 
review activities are discussed in more detail under the heading 
``Areas of Review.''
    Accordingly, 7 CFR 210.18(a) and 7 CFR 210.18(b) of the final rule 
add off-site activity to the administrative review process, and 7 CFR 
210.18(h)(1) requires an off-site review for the Resource Management 
area of review.
Entrance and Exit Conferences
    While some of the review activities can be conducted off-site, an 
observation of program operations while on-site at the SFA remains a 
critical component of program oversight. Prior to commencing on-site 
review activities, States are encouraged to convene an entrance 
conference with key SFA staff and, as applicable, LEA staff and 
administrators with responsibility for ensuring that program 
requirements are followed. This initial conversation can help clarify 
expectations for the on-site review, raise preliminary issues 
identified during off-site review activities, and identify the 
additional information needed to complete the on-site portion of the 
review. While not required, this rule provides, at 7 CFR 210.18(i)(1), 
the option for SAs to begin the administrative review by conducting an 
entrance conference with the relevant SFA staff. This provision 
reflects existing practice. This rule also retains the existing 
requirement for the SA to conduct an exit conference and codifies the 
requirement at 7 CFR 210.18(i)(2).
Administrative Review Materials
    This rule requires, in 7 CFR 210.18(f)(1), that SAs use the forms 
and tools prescribed by FNS to conduct the administrative review. As 
stated earlier, FNS will issue the updated tools and forms to align 
with the implementing rule. The tools and forms include, but are not 
limited to: An Off-site Assessment Tool, an On-site Assessment Tool, a 
Meal Compliance Risk Assessment Tool, a Dietary Specifications 
Assessment Tool, and a Resource Management Risk Indicator Tool.
    These tools and corresponding instructions are currently available 
to SAs on the FNS PartnerWeb, which is a restricted access online 
portal for SAs that administer the school meal programs. SAs can find 
the tools under the subject ``Administrative Review'' located in the 
Resources and Guidance document library of the CND Policy and Memoranda 
Community. With the exception of the Resource Management Risk Indicator 
Tool, which must be completed off-site, the required administrative 
review tools may be completed off-site or on-site.

Areas of Review

    The updated administrative review process includes critical and 
general areas that mirror the critical and general areas specified in 
existing 7 CFR 210.18(g) and (h), with the modifications discussed 
below.
Critical Areas of Review
    This final rule retains the critical areas of review that help 
evaluate compliance with several program requirements. The review of 
PS-1 focuses on certification for free and reduced price meals, benefit 
issuance, and meal counting and claiming. The review of PS-2 focuses on 
meals meeting the meal pattern and dietary specification requirements 
and documentation to support meeting these requirements. The final rule 
retains both performance standards in 7 CFR 210.18(g)(1) and (g)(2) but 
modifies how they are monitored, as described in the next two 
subsections of this preamble.
PS-1--Meal Access and Reimbursement
    This final rule retains PS-1 in 7 CFR 210.18(g)(1) with only minor 
technical changes. Existing PS-1 refers to ``All, free, reduced price 
and paid lunches . . . served only to children eligible for free, 
reduced price and paid lunches . . .'' This rule replaces the term 
``lunches'' with the term ``meals'' to include an assessment of both 
the NSLP and the SBP, and Afterschool Snacks as applicable, as required 
by the amendments made to the NSLA by section 207 of the HHFKA.
    In addition, this rule retains the three-pronged scope of review in 
PS-1. The SA must:
     Determine the number of children eligible for free, 
reduced price and paid meals, by type, in the reviewed schools 
(hereafter termed ``Certification'').
     Evaluate the system for issuing benefits and updating 
eligible status by validating the mechanisms the reviewed school uses 
to provide benefits to eligible children (hereafter termed ``Benefit 
Issuance'').
     Determine whether the meal counting system yields correct 
claims (hereafter termed ``Meal Counting and Claiming'').
    Although the above processes remain in place, this rule streamlines 
and consolidates the Certification and Benefit Issuance review 
processes to improve program integrity and simplify monitoring. As 
provided in 7 CFR 210.18(g)(1)(i) of this final rule, the SA must:
     Obtain the free and reduced price benefit issuance 
document for each school under the jurisdiction of the SFA for the day 
of review or a day in the review period.
     Review all, or a statistically valid sample of, free and 
reduced price certification documentation (i.e., direct certifications, 
household applications) and other documentation related to eligibility 
status (e.g., verification, transfers).
     Validate that reviewed students' free and reduced price 
eligibility status was correctly determined and properly

[[Page 50176]]

transferred to the benefit issuance document.
    In addition, the final rule expands the scope of Certification and 
Benefit Issuance review from the reviewed sites to the SFA level in 
order to provide the SA with a more accurate picture of the SFA's 
practices at all schools. This rule requires the SA to review the free 
and reduced price certification and benefit issuance documentation for 
students across the entire SFA. This change reflects that most SFAs 
have a centralized recordkeeping system; generally, certifications are 
made and benefit issuance is maintained at the SFA level. This approach 
allows certification and benefit issuance errors identified during a 
review to be corrected at the SFA level.
    Under 7 CFR 210.18(g)(1)(i) of this final rule, SAs will continue 
to have the option of reviewing either all certifications on the 
benefit issuance documents, or a statistically valid sample of 
certifications. SAs using a statistically valid sample review fewer 
student documents and the review yields results representative of the 
certification and benefit issuance activity in the SFA. The 
statistically valid sample size may be determined manually, or by using 
the Statistical Sample Generator developed by FNS or other statistical 
sampling software. Both options are described in the FNS Administrative 
Review Manual. This final rule retains the statistical sampling 
confidence level of 95 percent for electronic certification and benefit 
issuance systems. For manual benefit issuance systems, this rule 
increases the sampling confidence level to 99 percent.
    The Meal Counting and Claiming portion of the review continues to 
ensure that all free, reduced price and paid meals are accurately 
counted, recorded, consolidated and reported through a system that 
consistently yields correct claims. Under 7 CFR 210.18(g)(1)(ii) of the 
final rule, the SA continues to monitor counting and claiming at both 
the SFA and reviewed school levels. The review strategies remain 
unchanged; therefore, the SA must determine whether:
     Daily meal counts, by type, for the review period are more 
than the product of the number of children determined to be eligible, 
by type for the review period, adjusted for attendance at the reviewed 
schools;
     Each type of food service line provides accurate point of 
service meal counts, by type, and those meal counts are correctly 
counted and recorded at the reviewed schools; and
     All meals at the reviewed schools are correctly counted, 
recorded, consolidated and reported for the day they are served.
    In addition, SAs must determine whether meal counts submitted by 
each school are correctly consolidated, recorded, and reported by the 
SFA on the Claim for Reimbursement.
    Accordingly, the final rule combines the certification and benefit 
issuance process, expands the scope of the certification and benefits 
issuance review to the SFA level, and establishes acceptable sample 
sizes and confidence levels for statistical sampling at 7 CFR 
210.18(g)(1)(i). The rule retains existing meal counting and claiming 
review procedures at 7 CFR 210.18(g)(1)(ii).
PS-2--Meal Pattern and Nutritional Quality
    Section 210.18(g)(2)(i) of this final rule requires the SA to 
monitor an SFA's compliance with the meal patterns at each reviewed 
school, and 7 CFR210.18(g)(2)(ii) requires the SA to assess compliance 
with the dietary specifications using a risk-assessment approach. 
Although the final rule largely retains the existing scope of the PS-2 
review, it makes the following changes:
     Requires the completion a USDA-approved menu tool for each 
school selected for review to establish the SFA's compliance with the 
required food components and quantities for each age/grade group being 
served. The menu tool can be completed off-site (preferably) or on-site 
using production records, menus, recipes, food receipts, and any other 
documentation that shows the meals offered during a week from the 
review period contained the required components/quantities.
     Requires the SAs to review menu and production records for 
a minimum of three to a maximum of seven operating days to determine 
whether all food components and quantities have been offered over the 
course of a typical school week.
     Requires the SAs to confirm, through on-site observation 
of reviewed schools, that students select at least three food 
components at lunch and at least three food items at breakfast when 
Offer versus Serve is in place, and that these meals include at least 
\1/2\ cup of fruits or vegetables.
     Requires the SAs to assess compliance with the dietary 
specifications (calories, sodium, saturated fat, and trans fat) using a 
risk-based approach, and only requires a weighted nutrient analysis for 
a school determined to be at high risk for violations (see discussion 
under the heading Dietary Assessment).
    Other PS-2 review procedures remain the same. For example, for the 
day of review, the SA must observe the serving line(s) to determine 
whether all required food components/items and food quantities are 
offered, and observe a significant number of program meals, as 
described in the FNS Administrative Review Manual, counted at the point 
of service for each type of serving line to determine whether the meals 
selected by the students contain the required food components and 
quantities. The SA must also assess whether performance-based cash 
assistance should continue to be provided for lunches served.
Dietary Assessment
    This final rule, at 7 CFR 210.10 and 7 CFR 220.8, continues to 
require the SAs to assess whether the meals offered to children are 
consistent with the calories, sodium, saturated fat, and trans fat 
restrictions. Unlike the existing requirements, the final rule requires 
that the SA follow a risk-based approach to identify the reviewed 
school most at risk of nutrition-related violations and conduct a 
targeted menu review of only that school. This differs from the 
previous requirement that SAs conduct a weighted nutrient analysis of 
the meals offered in all reviewed schools to determine whether those 
meals meet the calorie, sodium, and saturated fat requirements.
    The final rule requires the SA to complete the Meal Compliance Risk 
Assessment Tool off-site or on-site for each school selected for review 
to identify the school most at risk for nutrition-related violations. 
This risk-based approach is intended to lessen the review burden on SAs 
and allow them to better target their resources. For the one school 
determined to be most at risk, the SA conducts an in-depth, targeted 
menu review using one of four FNS approved options. These options are: 
Conduct a nutrient analysis, validate an existing nutrient analysis 
performed by the SFA or a contractor, complete the Dietary 
Specifications Assessment Tool to further examine the food service 
practices, or follow an alternative FNS-approved process utilizing the 
Menu Planning Tools for Certification for Six Cent Reimbursement.
    Accordingly, the updated review procedures to assess the food 
components and quantities are established in 7 CFR 210.18(g)(2)(i), and 
the procedures to assess the dietary specifications are established in 
7 CFR210.18(g)(2)(ii) of the final rule.

[[Page 50177]]

Performance-Based Cash Assistance
    This provision is addressed in 7 CFR 210.18(g)(2)(iii) of the final 
rule. The SA must assess whether performance-based cash assistance 
should continue to be provided for the lunches served.
Follow-Up Reviews
    This final rule lessens the burden associated with the 
administrative review by removing the requirement for follow-up reviews 
triggered by a specific threshold. The follow-up review requirement was 
implemented at a time when a 5-year review cycle was in place and there 
was concern about the long span between reviews. Because the 3-year 
review cycle now allows the SA to have more frequent contact with the 
SFAs, the follow up requirement is unnecessary. Instead, the final 
review process emphasizes collaborative compliance. When errors are 
detected, the SA will require corrective action, provide technical 
assistance to bring the SFA into compliance, and take fiscal action 
when appropriate. The SA has discretion to do a follow-up review based 
on its own criteria.
    Accordingly, this final rule removes the definitions of ``follow-up 
reviews'' and ``review threshold'' in existing 7 CFR 210.18(b) and 
removes the follow-up review procedures in 7 CFR 210.18(i). Minor 
references to follow-up review and review threshold throughout 7 CFR 
part 210 are also removed. The definitions of ``large school food 
authority'' and ``small school food authority'' are removed from 7 CFR 
210.18(b), as these definitions were used in the determination of which 
SFAs received a follow-up review. The same definition of ``large school 
food authority'' is added to 7 CFR part 235, State Administrative 
Expense Funds, where it remains relevant for the State Administrative 
Expense allocation process.
General Areas of Review
    The final rule expands the general areas of review to include 
existing and new requirements grouped into two broad categories: 
Resource Management and General Program Compliance.
    Resource Management is a new general area of the administrative 
review, established in 7 CFR 210.18(h)(1), that assesses compliance 
with existing requirements that safeguard the overall financial health 
of the nonprofit school food service. The SA must use the Resource 
Management Risk Indicator Tool to identify if the SFA is at high risk 
for Resource Management violations, and only then conduct a 
comprehensive Resource Management review as described in the FNS 
Administrative Review Manual. The comprehensive review must include, 
but is not limited to the following:
     Maintenance of the Nonprofit School Food Service Account--
7 CFR 210.2, 210.14, 210.19(a) and 210.21;
     Paid Lunch Equity--7 CFR 210.14(e);
     Revenue from Nonprogram Foods--7 CFR 210.14(f); and
     Indirect Costs--2 CFR part 200 and 7 CFR 210.14(g).
    Adding Resource Management to the administrative review establishes 
a framework for this review area, promotes review consistency among all 
States, and strengthens stewardship of Federal funds. Requiring an off-
site review of Resource Management allows the reviewer to use the 
expertise of off-site SA staff with specialized knowledge of Resource 
Management that may not typically be present during an on-site review. 
Under 7 CFR 210.18(h)(1) of the final rule provides SAs some 
flexibility in the review of Resource Management, provided the minimum 
areas of review are covered.
    It is also important to note that this final rule adds a new 
paragraph (g) to the Resource Management requirements in 7 CFR 210.14 
to clarify the SFA's existing responsibilities with regard to indirect 
costs. This is discussed later in the preamble under the heading, ``IV. 
Changes to SFA Requirements.''
    7 CFR 210.18(h)(2), General Program Compliance, of the final rule 
focuses on the SFA compliance with the existing general areas: free and 
reduced price process, civil rights, SFA on-site monitoring, reporting 
and recordkeeping, and food safety. The final rule expands the general 
areas to include the requirements established by HHFKA for competitive 
food standards, water, outreach for the SBP and Summer Food Service 
Program (SFSP), professional standards, and local school wellness. The 
final rule moves the existing oversight of outreach for SBP and SFSP 
from 7 CFR 210.19(g) to the general areas of review under 7 CFR 
210.18(h)(2).
    In total, the general areas of review must include, but are not 
limited to, the following:
     Free and Reduced Price Process--including verification, 
notification, and other procedures--7 CFR part 245.
     Civil Rights--7 CFR 210.23(b).
     SFA On-site Monitoring--7 CFR 210.8(a) and 220.11(d).
     Reporting and Recordkeeping--7 CFR parts 210, 220 and 245.
     Food Safety--7 CFR 210.13.
     Competitive Food Services--7 CFR 210.11 and 7 CFR 220.12.
     Water--7 CFR 210.10(a)(1)(i) and 7 CFR 220.8(a)(1).
     Professional Standards--7 CFR 210.30.
     SBP and SFSP Outreach--7 CFR 210.12(d).
     Local School Wellness Policies.
    LEAs have been required to have local school wellness policies in 
place since 2006. Assessing compliance with this requirement has been a 
general area of review under the CRE, and is included in the 
Administrative Review Manual. The Department has issued a separate 
rulemaking, Local School Wellness Policy Implementation Under the 
Healthy, Hunger-Free Kids Act of 2010, 79 FR 10693 (2/26/14), to 
solicit public comment on the proposed implementation of section 204 of 
the HHFKA. The administrative review guidance will be updated to 
reflect finalized requirements.
    Finally, as noted later in the preamble, this final rule expands 
the existing requirement for SFAs to conduct on-site monitoring. This 
change to 7 CFR 210.8, is discussed in more detail later under the 
heading ``IV. Changes to SFA Requirements.''
Other Federal Program Reviews
    The review of other Federal programs is a new aspect of the unified 
accountability system for school meals. It ensures that SAs monitor the 
NSLP's Afterschool Snacks and SSO, the SMP, and the FFVP when these 
programs are administered by the SFA under review. The SA must review 
selected critical areas established in 7 CFR 210.18(g), as applicable, 
when conducting administrative reviews of the NSLP's Afterschool Snacks 
and SSO, and of the SMP. In addition, the SA must review selected 
general areas established in 7 CFR 210.18(h), as applicable, when 
conducting administrative reviews of the NSLP's Afterschool Snacks and 
SSO, the FFVP, and the SMP. The FNS Administrative Review Manual 
specifies how the SA must assess the applicable critical and general 
areas when reviewing these other school meal programs.
    Previously, a SA was only required to monitor the certification, 
count and milk/meal service procedures for the SMP (7 CFR part 215) or 
the NSLP Afterschool Snacks (7 CFR part 210) during a follow-up review 
if the SA had not evaluated these programs previously in the schools 
selected for an administrative review. This final rule includes other 
school meal programs in the regular, periodic review of SFA operations 
because it is critical that they

[[Page 50178]]

are properly administered in order to improve program integrity 
overall.
    Other Federal Program Reviews helps ensure that the SFA operates 
the other school meal programs in accordance with key regulatory 
requirements. In most cases, the review of other school meal programs 
includes the following:
    To review NSLP Afterschool Snacks, the SA must:
     Use the Supplemental Afterschool Snacks Administrative 
Review Form.
     Review the school's eligibility for Afterschool Snacks.
     Ensure the school complies with counting and claiming 
procedures.
     Confirm the SFA conducts self-monitoring activities twice 
per year as required in 7 CFR 210.9(c)(7).
     Assess compliance with the snack meal pattern in 7 CFR 
210.10(o).
     Monitor compliance with the reporting and recordkeeping, 
food safety and civil rights requirements in 7 CFR 210.
    To review the NSLP SSO, the SA must, at a minimum:
     Use the Supplemental Seamless Summer Option Administrative 
Review Form.
     Verify the site eligibility for the SSO.
     Ensure the SFA monitors the site(s) at least once per 
year.
     Review meal counting and claiming procedures.
     Monitor compliance with the meal patterns for meals in 7 
CFR 210.10 and 7 CFR 220.8.
     Confirm the SFA informs families of the availability of 
free meals.
     Monitor compliance with the reporting and recordkeeping, 
food safety and civil rights requirements in 7 CFR 210.
    To review the SMP (in NSLP schools), the SA must, at a minimum:
     Use the Supplemental Special Milk Program Administrative 
Review Form.
     Review the milk pricing policy, counting and claiming, and 
milk service procedures.
     Observe the milk service at the reviewed site if there are 
issues with the meal counting and claiming procedures in the NSLP or 
SBP.
     Ensure accuracy in certification and benefit issuance, 
when observing milk service.
     Monitor compliance reporting and recordkeeping, food 
safety and civil rights requirements in 7 CFR 215.
    To review the FFVP, the SA must at a minimum:
     Confirm availability of benefits to all enrolled children 
free of charge.
     Monitor allowable program costs, service time, outreach 
efforts, and types of fruits and vegetables offered.
     Monitor compliance with the reporting and recordkeeping, 
food safety and civil rights requirements in 7 CFR 210.
    The Department has issued separate rulemaking, Fresh Fruit and 
Vegetable Program, 77 FR 10981 (2/24/2012) to solicit public comment on 
the proposed implementation of the FFVP. Currently, the program is 
operated under guidance that follows general requirements for program 
operations under 7 CFR 210. When the FFVP final rule is published, the 
implementing administrative review regulations will reflect any 
necessary changes.

Fiscal Action

    SAs must identify the SFA's correct entitlement and take fiscal 
action when any SFA claims or receives more Federal funds than earned. 
This final rule continues to require SAs to take fiscal action for all 
PS-1 violations and for specific PS-2 violations, as discussed next. 
While no fiscal action is required for general area violations, the SA 
has the ability to withhold funds for repeat or egregious violations 
occurring in the majority of the general areas. This final rule also 
expands the scope of fiscal action for certification/benefit issuance 
PS-1 violations, revises the method to calculate fiscal action for 
applicable violations, and modifies the SA's authority to limit fiscal 
action for specific critical area violations when corrective action is 
completed.
    Details about the changes to fiscal action follow.
PS-1 Violations
    SAs are required to take fiscal action for all certification, 
benefit issuance, meal counting, and claiming violations of PS-1. For 
the Certification and Benefit Issuance portion of the updated 
administrative review, 7 CFR 210.18(g) of this final rule requires the 
SAs to review certifications/benefit issuance for all the schools under 
the SFA's jurisdiction, not just the reviewed schools. This broader 
scope of review is expected to provide the SA with a more accurate 
picture of the SFA's practices at all participating schools under its 
jurisdiction and lead to improved program integrity.
    Given the broader scope of the Certification and Benefit Issuance 
review at the SFA level, this rule makes several changes to the related 
fiscal action. Section 210.18(l)(l) of this final rule applies fiscal 
action for certification and benefit issuance errors to the entire SFA, 
including non-reviewed schools. Expanding fiscal action across the 
entire SFA differs from the existing CRE review, and from the interim 
administrative review approach used by a number of SA operating under a 
waiver using the updated Administrative Review Manual. Under CRE and 
the interim administrative review approach, fiscal action was generally 
limited to the reviewed schools.
    For certification and benefit issuance errors cited under paragraph 
(g)(1)(i) of this section, the total number of free and reduced price 
meals claimed must be adjusted according to procedures established by 
FNS.
    This method to calculate fiscal action at the SFA level differs 
from the CRE approach, which based fiscal action on the number of 
incorrect certifications in reviewed schools and the corresponding 
number of serving days. This approach streamlines the determination of 
fiscal action and ensures program integrity SFA-wide. To reflect the 
expanded scope of review, the final rule also amends language in 7 CFR 
210.19(c) to indicate that fiscal action applies to ``meals'' (rather 
than just lunches) and the SMP at 7 CFR part 215.
PS-2 Violations--Missing Food Component and Production Records
    Under 7 CFR 210.18(l)(2)(i) of the final rule, SAs must continue to 
take fiscal action for PS-2 missing food component violations. Although 
fiscal action would generally be applied to the reviewed school (as 
previously done), if a centralized menu is in place, the SA should 
evaluate the cause(s) of the violation to determine if it is 
appropriate to apply fiscal action SFA-wide.
    In addition, the final rule requires the SA to assess fiscal action 
on meals claimed for reimbursement that are not supported by 
appropriate documentation. An SFA must document that it offers 
reimbursable meals and maintain documentation that demonstrates how 
meals offered to students meet meal pattern requirements. If production 
records are missing, or missing for a certain time period, the final 
rule requires the SA to take fiscal action unless the SFA is able to 
demonstrate to the satisfaction of the SA, that reimbursable meals were 
offered and served.
Duration of Fiscal Action for PS-1 Violations and PS-2 Violations 
Related to Missing Food Component and Production Records
    Section 210.18(l)(3) of this final rule continues to require that 
SAs extend fiscal action back to the beginning of the school year or 
that point in time during the current school year when the infraction 
first occurred. Depending on

[[Page 50179]]

the severity and longevity of the violation, the SA may extend fiscal 
action back to the beginning of the year or back to previous school 
years. However, this rule also provides some flexibility for SA to 
limit the duration of fiscal action when corrective action takes place 
for PS-1violations and for PS-2 violations that are related to food 
components and missing production records. The flexibility is as 
follows:
    As stated in 7 CFR 210.18(l)(3)(i), for PS-1 certification and 
benefit issuance errors, fiscal action is required for the review 
period and the month of the on-site review, at a minimum. For example, 
if the review period is January and the month of the on-site review is 
February, then at a minimum fiscal action would be applied to the 
months of January and February. In scenarios where a month falls in 
between, i.e., January is the review period and March is when the on-
site review occurs, then fiscal action is applied to all three months.
    As stated in 7 CFR 210.18(l)(3)(ii), for other PS-1 violations and 
for PS-2 violations relating to missing food components and missing 
production records:
     If corrective action occurs during the on-site review 
month, the SA must apply fiscal action from the point corrective action 
occurs back through the beginning of the on-site review month and for 
the review period. For example, if the review period is in January and 
the on-site review occurs in March and during the course of the review 
errors are identified and corrected on March 15, then fiscal action 
must be applied from March 1 through March 14 and for the entire review 
period, i.e., January.
     If corrective action occurs during the review period, the 
SA must apply fiscal action from the point corrective action occurs 
back through the beginning of the review period. For example, if the 
review period is January and the on-site review occurs in March and it 
is determined that the problem was corrected on January15, then fiscal 
action would be applied from January 1 through January 14h.
     If corrective action occurs prior to the review period, no 
fiscal action is required. In this scenario, any error identified and 
corrected prior to the review period, i.e., before January, it is not 
subject to fiscal action.
     If corrective action occurs in a claim month(s) between 
the review period and the on-site review month, the SA must apply 
fiscal action only to the review period. For example, if the review 
period is January and the on-site review occurs in March and the 
corrective action takes place in February, the SA must apply fiscal 
action only to the review period, i.e., January.
For PS-2 Violations Related to Vegetable Subgroups. Milk Type, Food 
Quantities, Whole Grain-Rich Foods, and Dietary Specifications
    Section 210.18(l)(2) of this final rule continues to require fiscal 
action for repeated PS-2 violations related to vegetable subgroups and 
milk type. For repeated PS-2 violations related to food quantities, 
whole grain-rich foods and the dietary specifications, fiscal action 
remains discretionary. The final rule specifies the scope and duration 
of fiscal action for these repeated PS-2 violations in 7 CFR 
210.18(l)(2)(ii) through (l)(2)(v).
    For purposes of administrative reviews, repeated violations are 
generally those identified during the administrative review of an SFA 
in one cycle and then identified again in the administrative review of 
the same SFA in the next review cycle. For example, if the SA finds a 
PS-2 violation (e.g., unallowable milk type) in an SFA in the first 
review cycle (SY 2013-2016), and finds the same problem during the 
second review cycle (SY 2016-2019), fiscal action would be required 
during the second review cycle.
    It is important to note that while fiscal action is generally 
limited to the repeated violation found in a subsequent administrative 
review cycle, SAs are required by 7 CFR 210.19(c) to take fiscal action 
for recurrent violations found in later visits to the SFA during the 
initial cycle (e.g., technical assistance visits, follow-up reviews) if 
these violations reflect willful or egregious disregard of program 
requirements. This would not occur during SY 2013-2014 through SY 2015-
2016, as FNS has indicated in the memorandum Administrative Reviews and 
Certification for Performance-Based Reimbursement in School Year (SY) 
2014-2015 (SP-54 2014), and subsequent Question and Answer guidance 
documents, that repeat findings will not result in fiscal action if 
they are repeated in the first 3-year review cycle. Beginning in SY 
2016-2017, SAs should contact FNS for guidance in these situations.
    For repeated violations involving vegetable subgroups or milk 
requirements, the final rule continues to require the SA to take fiscal 
action provided that technical assistance has been provided by the SA, 
corrective action has been previously required and monitored by the SA, 
and the SFA remains in non-compliance with PS-2. The final rule at 7 
CFR 210.18(l)(2)(ii) specifies how a State must apply fiscal action. 
Under the final rule, all meals offered with an unallowable milk type 
or with no milk variety will be disallowed for reimbursement. If one 
vegetable subgroup is not offered over the course of the week reviewed, 
the SA should evaluate the cause(s) of the error to determine the 
appropriate fiscal action required. When calculating the required 
fiscal action, the SA has discretion, as appropriate based on the cause 
and extent of the error, to disallow all meals served in the deficient 
week.
    For repeated violations of quantities or the whole grain-rich foods 
and dietary specifications, the final rule continues to provide the SAs 
discretion to apply fiscal action provided that technical assistance 
has been given by the SA, corrective action has been previously 
required and monitored by the SA, and the SFA remains in noncompliance 
with quantity, whole grain rich and dietary specifications. Section 
210.18(l)(2)(iii) of the final rule specifies how fiscal action may be 
applied.
    For repeated violations involving food quantities or the whole 
grain-rich foods requirement, the SA has discretion to apply fiscal 
action. When evaluating the cause(s) of the error to determine the 
extent of the discretionary fiscal action, the reviewer must consider 
the following:
     If meals contain insufficient quantities of required food 
components, the affected meals may be disallowed/reclaimed.
     If no whole grain-rich foods are offered over the course 
of the week reviewed, all meals served in the deficient week may be 
disallowed/reclaimed.
     If insufficient whole grain-rich foods are offered, meals 
for one or more days during the week under review may be disallowed/
reclaimed. The SA has discretion to select which day's meals may be 
disallowed/reclaimed. Additional meals may be disallowed/reclaimed at 
the SA's discretion.
     If a vegetable subgroup is offered in an insufficient 
quantity to meet the minimum weekly requirement, meals may be 
disallowed/reclaimed for one day that week. The SA has discretion to 
select which day's meals are disallowed/reclaimed. If the amount of 
fruit juice offered exceeds weekly limitations, or the amount of 
vegetable juice exceeds weekly limitations meals for the entire week 
may be disallowed/reclaimed.
    For repeated violations of the dietary specifications, 7 CFR 
210.18(l)(2)(iv) of the final rule specifies that the SA has

[[Page 50180]]

discretion to take fiscal action and disallow/reclaim all meals for the 
entire week, if applicable, provided that technical assistance has been 
given by the SA, corrective action has been previously required and 
monitored by the SA, and the SFA remains noncompliant with the dietary 
specifications. If fiscal action is applied, it is limited to the 
school selected for the targeted menu review. A nutrient analysis using 
USDA-approved software is required to justify any fiscal action for 
noncompliance with the dietary specifications requirements.
    The intent of these fiscal action modifications and clarifications 
is to promote program integrity. Clearly identifying the critical area 
violations that may result in fiscal action and the scope and duration 
of any fiscal action, will promote consistency in fiscal action 
procedures among SAs.

Transparency Requirement

    Section 207 of the HHFKA amended section 22 of the NSLA (42 U.S.C. 
1769c) to require SAs to report the final results of the administrative 
review to the public in the State in an accessible, easily understood 
manner in accordance with guidelines promulgated by the Secretary.
    This final rule at 7 CFR 210.18(m) requires the SA to post a 
summary of the most recent final administrative review results for each 
SFA on the SA's publicly available Web site and provides the SA the 
option to strongly encourage each SFA to post a summary on the SFA's 
public Web site . The review summary must cover access and 
reimbursement (including eligibility and certification review results), 
an SFA's compliance with the meal patterns and the nutritional quality 
of school meals, the results of the review of the school nutrition 
environment (including food safety, local school wellness policy, and 
competitive foods), compliance related to civil rights, and general 
program participation. At a minimum, this would include the written 
notification of review findings provided to the SFAs Superintendent as 
required at 7 CFR 210.18.(i)(3). FNS will provide additional guidance 
on the appropriate format.
    SAs must post this review summary no later than 30 days after the 
SA provides the final results of the administrative review to the SFA. 
The SA must also make a copy of the final administrative review report 
available to the public upon request.
    In response to concerns expressed by commenters, this final rule 
provides SAs the discretion to strongly encourage that SFAs post a 
summary of the final results, or otherwise make them available to the 
public, and also to make a copy of the final administrative review 
report available to the public upon request. This option is consistent 
with the goal to promote transparency and accountability in program 
operations. It also reflects the fact that parents and stakeholders are 
increasingly aware of the potential benefits of the school meals 
programs and would like more information from the SFA.

Reporting and Recordkeeping

    This final rule addresses, at 7 CFR 210.18(n) and (o), the SA's 
reporting and recordkeeping requirements associated with the updated 
administrative review process. It continues to require that SAs file 
the form FNS-640 but removes the reference to follow-up reviews. The 
final rule retains the basic record keeping requirements previously 
found at 210.18(p) but removes the recordkeeping requirement associated 
with follow-up reviews, which are no longer required. The reporting 
requirements associated with follow-up reviews in the previous 7 CFR 
210.18(n) and 7 CFR 210.20(b)(7) is also eliminated.
    The removal of the follow-up review is expected to streamline the 
administrative review process for SAs. As discussed earlier, the 
information collection associated with the updated forms and new tools 
required for the administrative review process will be addressed 
separately in a 60-day notice.

IV. Changes to SFA Requirements

Resource Management

    As stated earlier, this final rule adds a new paragraph (g) in 7 
CFR 210.14, Resource Management, to clarify SFA responsibilities 
regarding indirect costs that will be monitored by the SA during the 
administrative review. The additional regulatory language does not 
represent a new requirement for SFAs. The paragraph (g) reflects 
existing requirements in 2 CFR 200 that are applicable to the operators 
of the school meal programs. The intent of paragraph (g) is to 
highlight an SFA responsibility that often goes unnoticed because it is 
not clearly stated in 7 CFR 210.14.

Monitoring

    To improve overall monitoring of the school meal programs, this 
final rule also expands the SFA on-site monitoring process. SFAs with 
more than one school are required to perform no less than one on-site 
review of the meal counting and claiming system employed by each school 
under its jurisdiction. The SFA must conduct the required on-site 
review prior to February 1 of each school year. The final rule at 7 CFR 
210.8(a)(1) expands the scope of on-site monitoring to include the 
readily observable general areas of review cited under 7 CFR 210.18(h), 
as identified by FNS. Readily observable areas of review could include, 
but are not limited to, the availability of free potable water, proper 
food safety practices, and compliance with Civil Rights requirements.
    In addition, the final rule extends the SFA's monitoring activities 
to the SBP. As stated in 7 CFR 220.11(d), the SFA must annually monitor 
the operation of the SBP at a minimum of 50 percent of the schools 
operating SBP under its jurisdiction, with each school operating the 
SBP to be monitored at least once every two years. As is currently done 
with the NSLP, this monitoring of the SBP would include the counting 
and claiming system used by a school and the general areas of review 
that are readily observable. This expansion of the SFA monitoring 
activities is intended to ensure that SFAs self-monitor and are aware 
of operational issues, and that schools receive ongoing guidance and 
technical assistance to facilitate compliance with program 
requirements.

V. Comparison of Administrative Review Requirements

    The following chart summarizes the key existing, proposed, and 
final administrative review requirements and states the anticipated 
outcomes.

----------------------------------------------------------------------------------------------------------------
        Existing requirement                Proposed rule              Final rule            Effect of change
----------------------------------------------------------------------------------------------------------------
Review location--SAs are required to  Review location--         Review Location--         The change is expected
 conduct an on-site review of each     The proposal      The final rule    to provide SAs with
 SFA once every 3 years.               would allow portions of   allows portions of the    review flexibility,
                                       the review to be          review to be conducted    lower travel costs,
                                       conducted off-site and    off-site and on-site.     and increase their
                                       on-site.                  No change to      ability to use in-
                                       No change to      the 3-year cycle          house/off-site staff
                                       the 3-year cycle                                    expertise to review
                                                                                           complex
                                                                                           documentation.

[[Page 50181]]

 
Scope of review--The scope of review  Scope of review--         Scope of review--         The final rule
 covers both critical and general      The proposal      The final rule    establishes the
 areas for the NSLP and SBP. The       retains the focus on      retains the focus on      unified review system
 critical areas, PS-1 and PS-2,        critical and general      critical and general      envisioned by the
 assess whether meals claimed for      areas of review, but      areas of review, but      HHFKA. While the
 reimbursement are served to           would expand the          expands the general       final rule expands
 children eligible for free, reduced   general areas of review   areas of review.          the scope of review
 price, and paid meals; are counted,   for a more robust         New general       by adding new general
 recorded and consolidated, and        monitoring process.       areas include: Resource   areas and Other
 reported through a system that        New general       Management, Competitive   Federal Program
 consistently yields correct claims;   areas would include:      Food Services, Water,     reviews, it also
 and meet meal pattern requirements..  Resource Management,      SBP and SFSP Outreach,    provides efficiencies
The general areas assess whether the   Competitive Food          Professional Standards,   resulting from off-
 SFA met other program requirements    Services, Water and SBP   and Local School          site monitoring, risk
 related to free and reduced price     and SFSP Outreach.        Wellness Policies.        assessment protocols,
 process, civil rights, SFA            In addition,      In addition,      and automated forms.
 monitoring, food safety, and          the proposal would add    the final rule adds       Overall, the change
 reporting and recordkeeping.          Other Federal Program     Other Federal Program     is expected to reduce
                                       reviews and would         reviews and introduces    the review burden on
                                       introduce risk            risk assessment           SAs and increase
                                       assessment protocols to   protocols to target at    program integrity.
                                       target at risk schools/   risk schools/districts
                                       districts
Minimum Number of Schools to Review-- Minimum Number of         Minimum Number of         The final rule makes
 SAs must review all schools with a    Schools to Review         Schools to Review         clear the statutory
 free average daily participation of   The proposed      The final rule    requirement that the
 100 or more and a free                rule retained that the    retains that State        SA must select
 participation factor of 100 percent   SA must review all        agency must review all    schools for review in
 or more.                              schools with a free       schools with a free       each LEA using
In no event must the SA review less    average daily             average daily             criteria established
 than the minimum number of schools.   participation of 100 or   participation of 100 or   by the Secretary.
                                       more and a free           more and a free
                                       participation factor of   participation factor of
                                       100 percent or more.      100 percent or more.
                                       In no event       In no event
                                       must the SA review less   must the State agency
                                       than the minimum number   review less than the
                                       of schools                minimum number of
                                                                 schools.
                                                                 The final rule
                                                                 adds that the SA must
                                                                 review at least one
                                                                 school from each LEA
Eligibility certification--SAs        Eligibility               Eligibility               The change is expected
 review the free and reduced price     certification             certification             to improve program
 certifications for children in        The proposal      The final rule    integrity across the
 schools selected for review.          would require SAs to      requires SAs to review    SFA. No change in
                                       review the free and       all free and reduced      burden is expected
                                       reduced price             price certifications      since the SA has the
                                       certifications made by    made by the local         option to review a
                                       the local educational     educational agency in     statistically valid
                                       agency in all schools     all schools in the        sample of
                                       in the district or a      district or a             applications.
                                       statistically valid       statistically valid
                                       sample of those           sample of those
                                       certifications            certifications
Fiscal action--Fiscal action for      Fiscal action--           Fiscal action--           The change is expected
 certification and benefit issuance    Fiscal action     The final rule    to promote
 violations is calculated based on     for certification and     requires that fiscal      consistency and
 errors in the reviewed schools.       benefit issuance          action for                accuracy in fiscal
                                       violations would apply    certification and         action procedures
                                       to the entire SFA,        benefit issuance          used by SAs
                                       including non-reviewed    violations apply to the   nationwide.
                                       schools and would be      entire SFA, including
                                       determined in a manner    non-reviewed schools
                                       prescribed by FNS.        and is to be determined
                                       The proposal      in a manner prescribed
                                       would also prescribe      by FNS.
                                       the extent of fiscal      The final rule
                                       action for repeated PS-   also prescribes the
                                       2 violations.             extent of fiscal action
                                       If corrective     for PS-1 violations and
                                       action takes place, the   repeated PS-2
                                       duration of fiscal        violations.
                                       action for PS-1 and       If corrective
                                       specific PS-2             action takes place, the
                                       violations could also     SA may limit the
                                       be revised.               duration of fiscal
                                                                 action for PS-1 and
                                                                 specific PS-2
                                                                 violations

[[Page 50182]]

 
Meal pattern and dietary              Meal pattern and dietary  Meal pattern and dietary  Requiring a weighted
 specifications--SAs must review the   specifications.           specifications            nutrient analysis
 meal service for the day of review    The SAs would     The SAs           only for a school
 and menu and production records for   continue to review the    continue to review the    determined to be at
 a minimum period of 5 days. SAs       meal service for the      meal service for the      highest risk for
 must conduct a weighted nutrient      day of review, and        day of review, and        dietary specification
 analysis for each reviewed school.    menus and production      menus and production      violations makes the
                                       records for 3-7 days.     records for 3-7 days.     best use of limited
                                       If the review reveals     If the review reveals     SA resources. This
                                       problems with             problems with             change is expected to
                                       components or             components or             improve program
                                       quantities, the SA        quantities, the SA        integrity by focusing
                                       would expand the review   expands the review to,    time and effort on at
                                       to, at a minimum, the     at a minimum, the         risk schools.
                                       entire review period.     entire review period.
                                       The proposed      This final rule
                                       rule would require the    requires the SAs to:
                                       SAs to conduct a meal     (1) Conduct a meal
                                       compliance risk           compliance risk
                                       assessment for all        assessment for all
                                       schools under review to   schools under review to
                                       identify the school at    identify the school at
                                       highest risk for          highest risk for
                                       nutrition-related         nutrition-related
                                       violations, and to        violations; (2) to
                                       conduct a targeted menu   conduct a targeted menu
                                       review for that single    review for that single
                                       school.                   school using one of
                                       If the targeted   four options.
                                       menu review confirms      If the targeted
                                       the school is at high     menu review confirms
                                       risk for dietary          the school is at high
                                       specification             risk for dietary
                                       violations, a weighted    specification
                                       nutrient analysis for     violations, a weighted
                                       that school would be      nutrient analysis for
                                       required                  that school is required
Follow-up reviews--SAs are required   Follow-up reviews         Follow-up reviews         The change recognizes
 to determine whether an SFA has       The proposal      The final rule    that SAs will be
 violations in excess of specified     would eliminate the       eliminates the required   conducting reviews on
 thresholds and, if so, conduct        required follow-up        follow-up reviews and     a more frequent
 follow-up reviews within specified    reviews and               corresponding review      basis. It provides
 timeframes.                           corresponding review      thresholds.               States with the
                                       thresholds.               Follow-up         flexibility to
                                       Follow-up         reviews are at the SA's   conduct follow-up
                                       reviews would be at the   discretion                review activity at
                                       SA's discretion.                                    their discretion.
Reporting and recordkeeping--SAs are  Reporting and             Reporting and             The change reduces
 required to notify FNS of the names   recordkeeping             recordkeeping             reporting burden for
 of large SFAs in need of a follow-    The proposal      The final rule    SAs.
 up review. SAs are required to        would eliminate the       eliminates the follow-
 maintain records regarding its        follow-up review          up review reporting and
 criteria for selecting schools for    reporting and             recordkeeping
 follow-up reviews.                    recordkeeping             requirements
                                       requirements
Posting of final review results--No   Posting of final review   Posting of final review   Posting this
 existing requirements.                results                   results                   information online is
                                       The proposal      The final rule    expected to enhance
                                       would require SAs to      requires SAs to make      awareness of school
                                       make the final results    the final results of      and SFA performance
                                       of each SFA               administrative reviews    at meeting the
                                       administrative review     available to the public   requirements of the
                                       available to the public   in an accessible,         school meal programs
                                       in an accessible,         easily understood         and increase informed
                                       easily understood         manner in accordance      involvement of
                                       manner in accordance      with guidelines           parents in the
                                       with guidelines           established by the        program. The
                                       established by the        Secretary; such results   increased reporting
                                       Secretary; such results   must also be posted and   burden associated
                                       must also be posted and   otherwise made            with the posting is
                                       otherwise made            available to the public   expected to be minor.
                                       available to the public   on request.
                                       on request                SAs have the
                                                                 discretion to require
                                                                 SFAs to post the
                                                                 results
Include other Federal school          Include other Federal     Include other Federal     The change fosters
 nutrition programs in a follow up     school nutrition          school nutrition          integrity of all
 review--If the SA did not evaluate    programs in the           programs in the           school meal programs,
 the certification, count and milk/    administrative review     administrative review     and promotes
 meal service procedures for the SMP   The proposal      The final rule    efficiency.
 or afterschool care programs in the   would require SAs to      requires SAs to review
 schools selected for an               review NSLP afterschool   t NSLP afterschool
 administrative review, it must do     snacks and SSO, the       snacks and SSO, the
 so during the follow-up review.       SMP, and the FFVP as      SMP, and the FFVP as
                                       part of the               part of the
                                       administrative review     administrative review
                                       under 7 CFR 210.18        under 7 CFR 210.18
----------------------------------------------------------------------------------------------------------------

Comparison SFA Requirements

    The following chart summarizes SFA requirements associated with the 
administrative review process.

[[Page 50183]]



----------------------------------------------------------------------------------------------------------------
         Existing requirement               Proposed rule              Final rule            Effect of change
----------------------------------------------------------------------------------------------------------------
Resource Management--7 CFR 210.8 does  Resource Management      Resource Management      The change increases
 not address indirect costs             This proposal    This final       understanding of
 explicitly.                            would add text in 7      rule adds text in 7      indirect cost
                                        CFR 210.14 to clarify    CFR 210.14 to clarify    responsibilities that
                                        the SFA's existing       the SFA's existing       are monitored by the
                                        responsibilities with    responsibilities with    SA under the proposed
                                        regard to indirect       regard to indirect       administrative review.
                                        costs.                   costs.
SFA monitoring--SFAs are required to   SFA monitoring           SFA monitoring           The change results in a
 monitor the lunch counting and         The proposal     The final rule   more robust and
 claiming processes schools annually.   would require the SFA    requires the SFA to      effective SFA
                                        to also monitor the      also monitor the SBP     monitoring process,
                                        SBP; and.                in 50 percent of         which contributes to
                                        to expand the    schools operating the    the integrity of the
                                        annual school review     SBP annually, with all   school meal programs.
                                        by including selected    schools being
                                        general areas of         monitored at least
                                        review that are          once every two years;
                                        readily observable.      and.
                                                                 to expand the
                                                                 annual school review
                                                                 by including selected
                                                                 general areas of
                                                                 review that are
                                                                 readily observable.
----------------------------------------------------------------------------------------------------------------

VI. Miscellaneous Changes

    This final rule makes a number of miscellaneous changes to conform 
with other changes in the school meals programs:
     Deletes obsolete provision at 7 CFR 210.7(d)(1)(vi) 
related to validation reviews of performance-based reimbursement;
     Revises 7 CFR 210.9(b)(18) through 210.9(b)(20) and 
210.15(b)(4) to reflect the diversity of certification mechanisms 
beyond household applications;
     Revises 7 CFR 210.19(a)(1) to reflect the Paid Lunch 
Equity requirements;
     Revises 7 CFR 210.19(a)(5) to update the review frequency 
to 3 years conforming with the requirement at 210.18(c); and
     Deletes obsolete provisions at 7 CFR 210.20(b)(7) and 
210.23(d).

VII. Procedural Matters

A. Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    This final rule has been reviewed by the Office of Management and 
Budget (OMB) in conformance with Executive Order 12866 and has been 
determined to be Not Significant.

B. Regulatory Impact Analysis

    This final rule has been designated by the Office of Management and 
Budget (OMB) to be Not Significant; therefore a Regulatory Impact 
Analysis is not required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies 
to analyze the impact of rulemaking on small entities and consider 
alternatives that would minimize any significant impacts on a 
substantial number of small entities. Pursuant to that review it has 
been certified that this final rule would not have a significant impact 
on a substantial number of small entities. This final rule updates the 
administrative review process that State agencies must follow to 
monitor compliance with school meal programs' requirements. The 
administrative review process provides State agencies more flexibility, 
tools and streamlined procedures. FNS does not expect that the final 
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 $146 million 
or more (when adjusted for 2015 inflation; GDP deflator source: Table 
1.1.9 at https://www.bea.gov/iTable) 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 final rule does not contain Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local and 
tribal governments or the private sector of $146 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 nutrition assistance programs and areas affected by this final 
rule are listed in the Catalog of Federal Domestic Assistance as 
follows:
 National School Lunch Program, No. 10.555
 School Breakfast Program, No. 10.553
 Special Milk Program, No. 10.556
 State Administrative Expenses for Child Nutrition, No. 10.560
 Fresh Fruit and Vegetable Program, No. 10.582
    For the reasons set forth in 2 CFR chapters IV, the nutrition 
assistance programs are 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. The structure of 
the Child Nutrition Programs allows State and local agencies to provide 
feedback that contributes to the development of meaningful and feasible 
program requirements. This final rule has taken into account the 
extensive experience of State agencies conducting the administrative 
reviews which would be updated by this rule.

F. Executive Order 13132

    Executive Order 13132 requires Federal agencies to consider the 
impact

[[Page 50184]]

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. In addition, prior to 
drafting this final rule, FNS assembled a 26-member team consisting of 
staff from FNS Headquarters and the seven Regional Offices, and State 
Agency staff from Kansas, Michigan, New York, North Carolina, Oregon, 
Pennsylvania and Texas. The School Meal Administrative Review 
Reinvention Team (SMARRT) worked together for a year to address issues 
and develop an updated review process that is responsive to the needs, 
wants, and challenges of the State agencies.
2. Nature of Concerns and the Need To Issue This Rule
    The Healthy, Hunger-Free Kids Act of 2010 (HHFKA) amended section 
22 of the Richard B. Russell National School Lunch Act (NSLA), 42 
U.S.C. 1769c, to require that:
    a. The administrative review process be a unified accountability 
system; and
    b. When any SFA is reviewed under this section, ensure that the 
final results of the review by the State educational agency are posted 
and otherwise made available to the public on request in an accessible, 
easily understood manner in accordance with guidelines promulgated by 
the Secretary.
    This final rule updates the administrative review process 
established in 7 CFR 210.18 to carry out these two statutory 
requirements. In addition, the final rule would also make a number of 
changes to address issues and concerns raised by State agencies. Issues 
identified by State agencies include simplifying the administrative 
review and fiscal action. State agencies also want the administrative 
reviews to be meaningful and contribute to better meal service. They 
also want a review process that would allow them to better utilize the 
limited resources they have.
3. Extent To Which the Department Meets Those Concerns
    FNS has considered the concerns identified by SMARRT. The 
administrative review process in this final rule streamlines review 
procedures to allow more time for technical assistance, emphasizes 
risk-assessment to enable the State agency to focus the administrative 
review on school food authorities at high risk for noncompliance, and 
provides State agencies flexibility to conduct portions of the review 
off-site to make better use of limited resources.

G. Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 as redesignated by this rule in 7 CFR 
210.18(p) and 7 CFR 235.11(f) of this chapter must be exhausted.

H. Executive Order 13175

    Executive Order 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 spring 2011, FNS offered 
five opportunities for consultation with Tribal officials or their 
designees to discuss the impact of the Healthy, Hunger-Free Kids Act of 
2010 on tribes or Indian Tribal governments. FNS followed up with 
conference calls on February 13, 2013; May 22, 2013; August 21, 2013 
and November 6, 2013. These consultation sessions provide the 
opportunity to address Tribal concerns related to the School Meals 
Programs. Additionally, FNS has provided ongoing updates regarding the 
progress of the administrative review process. To date, Indian Tribal 
governments have not expressed concerns about the required unified 
accountability system during these consultations.
    USDA is unaware of any current Tribal laws that could be in 
conflict with the final rule. The Department will respond in a timely 
and meaningful manner to all Tribal government requests for 
consultation concerning this rule.

I. Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with 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 final 
rule is not intended to reduce a child's ability to participate in the 
National School Lunch Program, School Breakfast Program, Fresh Fruit 
and Vegetable Program, or Special Milk Program.

J. Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection included 
in this final rule, which were filed under 0584-0006, have been 
submitted for approval to the Office of Management and Budget (OMB). 
When OMB notifies us of its decision, FNS will publish a notice in the 
Federal Register of the action.

K. E-Government Act Compliance

    FNS is committed to complying with the E-Government 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

7 CFR Parts 210

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

7 CFR Parts 215

    Food assistance programs, Grant programs-education, Grant programs-
health, Infants and children, Milk, Reporting and recordkeeping 
requirements.

7 CFR Parts 220

    Grant programs-education; Grant programs-health; Infants and 
children; Nutrition; Reporting and recordkeeping requirements; School 
breakfast and lunch programs.

7 CFR Parts 235

    Administrative practice and procedure; Food assistance programs; 
Grant programs-education; Grant programs-health; Infants and children;

[[Page 50185]]

Reporting and recordkeeping requirements; School breakfast and lunch 
programs.

    Accordingly, 7 CFR parts 210, 215, 220, and 235 are amended as 
follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

0
1. The authority citation for 7 CFR part 210 continues to read as 
follows:

    Authority:  42 U.S.C.1751-1760, 1779.


0
2. In part 210, remove the word ``SF-269'' wherever it appears and add 
in its place the word ``FNS-777''.


Sec.  210.7  [Amended]

0
3. In Sec.  210.7, remove paragraph (d)(1)(vii) and redesignate 
paragraph (d)(1)(viii) as paragraph (d)(1)(vii).


Sec.  210.8  [Amended]

0
4. In Sec.  210.8:
0
a. In paragraph (a) introductory text, remove the words ``lunch'' and 
``lunches'' wherever they appear and add in their place the words 
``meal'' and ``meals'' respectively.
0
b. In paragraph (a)(1):
0
i. In the first sentence, remove the word ``lunch'';
0
ii. In the first sentence, remove the words ``employed by'' and add in 
their place the words ``and the readily observable general areas of 
review cited under Sec.  210.18(h), as prescribed by FNS for'';
0
iii. In the third sentence, add the words ``or general review areas'' 
after the word ``procedures''; and
0
iv. In the fourth sentence, remove the word ``lunches'' and add in its 
place the word ``meals''; and
0
c. In paragraph (a)(3)(ii), remove the word ``subsequent''.

0
5. In Sec.  210.9:
0
a. In paragraph (b)(18), remove the words ``applications which must be 
readily retrievable by school'' and add in their place the words 
``certification documentation'';
0
b. Revise paragraph (b)(19) introductory text; and
0
c. Revise paragraph (b)(20).
    The revisions read as follows:


Sec.  210.9  Agreement with State agency.

* * * * *
    (b) * * *
    (19) Maintain direct certification documentation obtained directly 
from the appropriate State or local agency, or other appropriate 
individual, as specified by FNS, indicating that:
* * * * *
    (20) Retain eligibility documentation submitted by families for a 
period of 3 years after the end of the fiscal year to which they 
pertain or as otherwise specified under paragraph (b)(17) of this 
section.
* * * * *

0
6. In Sec.  210.10:
0
a. In paragraph (h), revise the subject heading;
0
b. In paragraph (h)(1), revise the first sentence;
0
c. Revise paragraph (i) subject heading and paragraph (i)(1);
0
d. Revise paragraph (i)(3)(i);
0
e. In paragraph (j), revise the paragraph heading; and
0
f. Add paragraph (o)(5).
    The revisions and addition read as follows:


Sec.  210.10  Meal requirements for lunches and requirements for 
afterschool snacks.

* * * * *
    (h) Monitoring dietary specifications. (1) * * * When required by 
the administrative review process set forth in Sec.  210.18, the State 
agency must conduct a weighted nutrient analysis to evaluate the 
average levels of calories, saturated fat, and sodium of the lunches 
offered to students in grades K and above during one week of the review 
period. * * *
* * * * *
    (i) Nutrient analyses of school meals--(1) Conducting the nutrient 
analysis. Any nutrient analysis, whether conducted by the State agency 
under Sec.  210.18 or by the school food authority, must be performed 
in accordance with the procedures established in paragraph (i)(3) of 
this section. The purpose of the nutrient analysis is to determine the 
average levels of calories, saturated fat, and sodium in the meals 
offered to each age grade group over a school week. The weighted 
nutrient analysis must be performed as required by FNS guidance.
* * * * *
    (3) * * *
    (i) Weighted averages. The nutrient analysis must include all foods 
offered as part of the reimbursable meals during one week within the 
review period. Foods items are included based on the portion sizes and 
serving amounts. They are also weighted based on their proportionate 
contribution to the meals offered. This means that food items offered 
more frequently are weighted more heavily than those not offered as 
frequently. The weighted nutrient analysis must be performed as 
required by FNS guidance.
* * * * *
    (j) Responsibility for monitoring meal requirements. * * *
* * * * *
    (o) * * *
    (5) Monitoring afterschool snacks. Compliance with the requirements 
of this paragraph is monitored by the State agency as part of the 
administrative review conducted under Sec.  210.18. If the snacks 
offered do not meet the requirements of this paragraph, the State 
agency or school food authority must provide technical assistance and 
require corrective action. In addition, the State agency must take 
fiscal action, as authorized in Sec. Sec.  210.18(l) and 210.19(c).
* * * * *

0
7. In Sec.  210.14, add a sentence at the end of paragraph (d) and add 
paragraph (g) to read as follows:


Sec.  210.14  Resource management.

* * * * *
    (d) * * * The school food authority's policies, procedures, and 
records must account for the receipt, full value, proper storage and 
use of donated foods.
* * * * *
    (g) Indirect costs. School food authorities must follow fair and 
consistent methodologies to identify and allocate allowable indirect 
costs to the nonprofit school food service account, in accordance with 
2 CFR part 200 as implemented by 2 CFR part 400.


Sec.  210.15  [Amended]

0
8. In Sec.  210.15, in paragraph (b)(4), remove the words 
``applications for'' and add in their place the words ``certification 
documentation for''.
0
9. Revise Sec.  210.18 to read as follows:


Sec.  210.18  Administrative reviews.

    (a) Programs covered and methodology. Each State agency must follow 
the requirements of this section to conduct administrative reviews of 
school food authorities participating in the National School Lunch 
Program and the School Breakfast Program (part 220 of this chapter). 
These procedures must also be followed, as applicable, to conduct 
administrative reviews of the National School Lunch Program's 
Afterschool Snacks and Seamless Summer Option, the Special Milk Program 
(part 215 of this chapter), and the Fresh Fruit and Vegetable Program. 
To conduct a program review, the State agency must gather and assess 
information off-site and/or on-site, observe the school food service 
operation, and use a risk-based approach to evaluate compliance with 
specific program requirements.
    (b) Definitions. The following definitions are provided in 
alphabetical order in order to clarify State agency administrative 
review requirements:
    Administrative reviews means the comprehensive off-site and/or on-
site evaluation of all school food authorities participating in the 
programs specified

[[Page 50186]]

in paragraph (a) of this section. The term ``administrative review'' is 
used to reflect a review of both critical and general areas in 
accordance with paragraphs (g) and (h) of this section, as applicable 
for each reviewed program, and includes other areas of program 
operations determined by the State agency to be important to program 
performance.
    Critical areas means the following two performance standards 
described in detail in paragraph (g) of this section:
    (i) Performance Standard 1--All free, reduced price and paid school 
meals claimed for reimbursement are served only to children eligible 
for free, reduced price and paid school meals, respectively; and are 
counted, recorded, consolidated and reported through a system which 
consistently yields correct claims.
    (ii) Performance Standard 2--Reimbursable lunches meet the meal 
requirements in Sec.  210.10, as applicable to the age/grade group 
reviewed. Reimbursable breakfasts meet the meal requirements in Sec.  
220.8 of this chapter, as applicable to the age/grade group reviewed.
    Day of Review means the day(s) on which the on-site review of the 
individual sites selected for review occurs.
    Documented corrective action means written notification required of 
the school food authority to certify that the corrective action 
required for each violation has been completed and to notify the State 
agency of the dates of completion. Documented corrective action may be 
provided at the time of the review or may be submitted to the State 
agency within specified timeframes.
    General areas means the areas of review specified in paragraph (h) 
of this section. These areas include free and reduced price process, 
civil rights, school food authority on-site monitoring, reporting and 
recordkeeping, food safety, competitive food services, water, program 
outreach, resource management, and other areas identified by FNS.
    Participation factor means the percentages of children approved by 
the school for free meals, reduced price meals, and paid meals, 
respectively, who are participating in the Program. The free 
participation factor is derived by dividing the number of free lunches 
claimed for any given period by the product of the number of children 
approved for free lunches for the same period times the operating days 
in that period. A similar computation is used to determine the reduced 
price and paid participation factors. The number of children approved 
for paid meals is derived by subtracting the number of children 
approved for free and reduced price meals for any given period from the 
total number of children enrolled in the reviewed school for the same 
period of time, if available. If such enrollment figures are not 
available, the most recent total number of children enrolled must be 
used. If school food authority participation factors are unavailable or 
unreliable, State-wide data must be employed.
    Review period means the most recent month for which a Claim for 
Reimbursement was submitted, provided that it covers at least ten (10) 
operating days.
    (c) Timing of reviews. State agencies must conduct administrative 
reviews of all school food authorities participating in the National 
School Lunch Program (including the Afterschool Snacks and the Seamless 
Summer Option) and School Breakfast Program at least once during a 3-
year review cycle, provided that each school food authority is reviewed 
at least once every 4 years. For each State agency, the first 3-year 
review cycle started the school year that began on July 1, 2013, and 
ended on June 30, 2014. At a minimum, the on-site portion of the 
administrative review must be completed during the school year in which 
the review was begun.
    (1) Review cycle exceptions. FNS may, on an individual school food 
authority basis, approve written requests for 1-year extensions to the 
3-year review cycle specified in paragraph (c) of this section if FNS 
determines this 3-year cycle requirement conflicts with efficient State 
agency management of the programs.
    (2) Follow-up reviews. The State agency may conduct follow-up 
reviews in school food authorities where significant or repeated 
critical or general violations exist. The State agency may conduct 
follow-up reviews in the same school year as the administrative review.
    (d) Scheduling school food authorities. The State agency must use 
its own criteria to schedule school food authorities for administrative 
reviews; provided that the requirements of paragraph (c) of this 
section are met. State agencies may take into consideration the 
findings of the claims review process required under Sec.  210.8(b)(2) 
in the selection of school food authorities.
    (1) Schedule of reviews. To ensure no unintended overlap occurs, 
the State agency must inform FNS of the anticipated schedule of school 
food authority reviews upon request.
    (2) Exceptions. In any school year in which FNS or the Office of 
the Inspector General (OIG) conducts a review or investigation of a 
school food authority in accordance with Sec.  210.19(a)(4), the State 
agency must, unless otherwise authorized by FNS, delay conduct of a 
scheduled administrative review until the following school year. The 
State agency must document any exception authorized under this 
paragraph.
    (e) Number of schools to review. At a minimum, the State agency 
must review the number of schools specified in paragraph (e)(1) of this 
section and must select the schools to be reviewed on the basis of the 
school selection criteria specified in paragraph (e)(2) of this 
section. The State agency may review all schools meeting the school 
selection criteria specified in paragraph (e)(2) of this section.
    (1) Minimum number of schools. State agencies must review at least 
one school from each local education agency. Except for residential 
child care institutions, the State agency must review all schools with 
a free average daily participation of 100 or more and a free 
participation factor of 100 percent or more. In no event must the State 
agency review less than the minimum number of schools illustrated in 
Table A for the National School Lunch Program.

                                 Table A
------------------------------------------------------------------------
  Number of schools in the school food    Minimum  number  of schools to
               authority                              review
------------------------------------------------------------------------
1 to 5.................................  1
6 to 10................................  2
11 to 20...............................  3
21 to 40...............................  4
41 to 60...............................  6
61 to 80...............................  8
81 to 100..............................  10
101 or more............................  *12
------------------------------------------------------------------------
* Twelve plus 5 percent of the number of schools over 100. Fractions
  must be rounded up (>0.5) or down (<0.5) to the nearest whole number.

    (2) School selection criteria. (i) Selection of additional schools 
to meet the minimum number of schools required under paragraph (e)(1) 
of this section, must be based on the following criteria:
    (A) Elementary schools with a free average daily participation of 
100 or more and a free participation factor of 97 percent or more;
    (B) Secondary schools with a free average daily participation of 
100 or more and a free participation factor of 77 percent or more; and
    (C) Combination schools with a free average daily participation of 
100 or

[[Page 50187]]

more and a free participation factor of 87 percent or more. A 
combination school means a school with a mixture of elementary and 
secondary grades.
    (ii) When the number of schools selected on the basis of the 
criteria established in paragraph (e)(2)(i) of this section is not 
sufficient to meet the minimum number of schools required under 
paragraph (e)(1) of this section, the additional schools selected for 
review must be identified using State agency criteria which may include 
low participation schools; recommendations from a food service director 
based on findings from the on-site visits or the claims review process 
required under Sec.  210.8(a); or any school in which the daily meal 
counts appear questionable (e.g., identical or very similar claiming 
patterns, or large changes in free meal counts).
    (iii) In selecting schools for an administrative review of the 
School Breakfast Program, State agencies must follow the selection 
criteria set forth in this paragraph and FNS' Administrative Review 
Manual. At a minimum:
    (A) In school food authorities operating only the breakfast 
program, State agencies must review the number of schools set forth in 
Table A in paragraph (e)(1) of this section.
    (B) In school food authorities operating both the lunch and 
breakfast programs, State agencies must review the breakfast program in 
50 percent of the schools selected for an administrative review under 
paragraph (e)(1) of this section that operate the breakfast program.
    (C) If none of the schools selected for an administrative review 
under paragraph (e)(1) of this section operates the breakfast program, 
but the school food authority operates the program elsewhere, the State 
agency must follow procedures in the FNS Administrative Review Manual 
to select at least one other site for a school breakfast review.
    (3) Site selection for other federal program reviews--(i) National 
School Lunch Program's Afterschool Snacks. If a school selected for an 
administrative review under this section operates Afterschool Snacks, 
the State agency must review snack documentation for compliance with 
program requirements, according to the FNS Administrative Review 
Manual. Otherwise, the State agency is not required to review the 
Afterschool Snacks.
    (ii) National School Lunch Program's Seamless Summer Option. The 
State agency must review Seamless Summer Option at a minimum of one 
site if the school food authority selected for review under this 
section operates the Seamless Summer Option. This review can take place 
at any site within the reviewed school food authority the summer before 
or after the school year in which the administrative review is 
scheduled. The State agency must review the Seamless Summer Option for 
compliance with program requirements, according to the FNS 
Administrative Review Manual.
    (iii) Fresh Fruit and Vegetable Program. The State agency must 
review the Fresh Fruit and Vegetable Program at one or more of the 
schools selected for an administrative review, as specified in Table B. 
If none of the schools selected for the administrative review operates 
the Fresh Fruit and Vegetable Program but the school food authority 
operates the Program elsewhere, the State agency must follow procedures 
in the FNS Administrative Review Manual to select one or more sites for 
the program review.

                                 Table B
------------------------------------------------------------------------
Number of schools  selected for an NSLP
 administrative review that operate the      Minimum  number  of FFVP
                  FFVP                       schools  to be reviewed
------------------------------------------------------------------------
0 to 5.................................  1
6 to 10................................  2
11 to 20...............................  3
21 to 40...............................  4
41 to 60...............................  6
61 to 80...............................  8
81 to 100..............................  10
101 or more............................  12*
------------------------------------------------------------------------
* Twelve plus 5 percent of the number of schools over 100. Fractions
  must be rounded up (>0.5) or down (<0.5) to the nearest whole number.

    (iv) Special Milk Program. If a school selected for review under 
this section operates the Special Milk Program, the State agency must 
review the school's program documentation off-site or on-site, as 
prescribed in the FNS Administrative Review Manual. On-site review is 
only required if the State agency has identified documentation problems 
or if the State agency has identified meal counting or claiming errors 
in the reviews conducted under the National School Lunch Program or 
School Breakfast Program.
    (4) Pervasive problems. If the State agency review finds pervasive 
problems in a school food authority, FNS may authorize the State agency 
to cease review activities prior to reviewing the required number of 
schools under paragraphs (e)(1) and (e)(3) of this section. Where FNS 
authorizes the State agency to cease review activity, FNS may either 
conduct the review activity itself or refer the school food authority 
to OIG.
    (5) Noncompliance with meal pattern requirements. If the State 
agency determines there is significant noncompliance with the meal 
pattern and nutrition requirements set forth in Sec.  210.10 and Sec.  
220.8 of this chapter, as applicable, the State agency must select the 
school food authority for administrative review earlier in the review 
cycle.
    (f) Scope of review. During the course of an administrative review 
for the National School Lunch Program and the School Breakfast Program, 
the State agency must monitor compliance with the critical and general 
areas in paragraphs (g) and (h) of this section, respectively. State 
agencies may add additional review areas with FNS approval. Selected 
critical and general areas must be monitored when reviewing the 
National School Lunch Program's Afterschool Snacks and the Seamless 
Summer Option, the Special Milk Program, and the Fresh Fruit and 
Vegetable Program, as applicable and as specified in the FNS 
Administrative Review Manual.
    (1) Review forms. State agencies must use the administrative review 
forms, tools and workbooks prescribed by FNS.
    (2) Timeframes covered by the review. (i) The timeframes covered by 
the administrative review includes the review period and the day of 
review, as defined in paragraph (b) of this section.
    (ii) Subject to FNS approval, the State agency may conduct a review 
early in the school year, prior to the submission of a Claim for 
Reimbursement. In such cases, the review period must be the prior month 
of operation in the current school year, provided that such month 
includes at least 10 operating days.
    (3) Audit findings. To prevent duplication of effort, the State 
agency may use any recent and currently applicable findings from 
Federally-required audit activity or from any State-imposed audit 
requirements. Such findings may be used only insofar as they pertain to 
the reviewed school(s) or the overall operation of the school food 
authority and they are relevant to the review period. The State agency 
must document the source and the date of the audit.
    (g) Critical areas of review. The performance standards listed in 
this paragraph are directly linked to meal access and reimbursement, 
and to the meal pattern and nutritional quality of the reimbursable 
meals offered. These critical areas must be monitored by the State 
agency when conducting administrative reviews of the National School 
Lunch Program and the School Breakfast Program. Selected aspects of 
these critical areas must also be

[[Page 50188]]

monitored, as applicable, when conducting administrative reviews of the 
National School Lunch Program's Afterschool Snacks and the Seamless 
Summer Option, and of the Special Milk Program.
    (1) Performance Standard 1 (All free, reduced price and paid school 
meals claimed for reimbursement are served only to children eligible 
for free, reduced price and paid school meals, respectively; and are 
counted, recorded, consolidated and reported through a system which 
consistently yields correct claims.) The State agency must follow 
review procedures stated in this section and as specified in the FNS 
Administrative Review Manual to ensure that the school food authority's 
certification and benefit issuance processes for school meals offered 
under the National School Lunch Program, and School Breakfast Program 
are conducted as required in part 245 of this chapter, as applicable. 
In addition, the State agency must ensure that benefit counting, 
consolidation, recording and claiming are conducted as required in this 
part and part 220 of this chapter for the National School Lunch Program 
and the School Breakfast Program, respectively. The State agency must 
also follow procedures consistent with this section, and as specified 
in the FNS Administrative Review Manual, to review applicable areas of 
Performance Standard 1 in the National School Lunch Program's 
Afterschool Snacks and Seamless Summer Option, and in the Special Milk 
Program.
    (i) Certification and benefit issuance. The State agency must 
gather information and monitor the school food authority's compliance 
with program requirements regarding benefit application, direct 
certification, and categorical eligibility, as well as the transfer of 
benefits to the point-of-service benefit issuance document. To review 
this area, the State agency must obtain the benefit issuance document 
for each participating school under the jurisdiction of the school food 
authority for the day of review or a day in the review period, review 
all or a statistically valid sample of student certifications, and 
validate that the eligibility certification for free and reduced price 
meals was properly transferred to the benefit issuance document and 
reflects changes due to verification findings, transfers, or a 
household's decision to decline benefits. If the State agency chooses 
to review a statistically valid sample of student certifications, the 
State agency must use a sample size with a 99 percent confidence level 
of accuracy. However, a sample size with a 95 percent confidence level 
of accuracy may be used if a school food authority uses an electronic 
benefit issuance and certification system with no manual data entry and 
the State agency has not identified any potential systemic 
noncompliance. Any sample size must be large enough so that there is a 
99 or 95 percent, as applicable, chance that the actual accuracy rate 
for all certifications is not less than 2 percentage points less than 
the accuracy rate found in the sample (i.e., the lower bound of the 
one-sided 99/95 percent confidence interval is no more than 2 
percentage points less than the point estimate).
    (ii) Meal counting and claiming. The State agency must gather 
information and conduct an on-site visit to ensure that the processes 
used by the school food authority and reviewed school(s) to count, 
record, consolidate, and report the number of reimbursable meals/snacks 
served to eligible students by category (i.e., free, reduced price or 
paid meal) are in compliance with program requirements and yield 
correct claims. The State agency must determine whether:
    (A) The daily meal counts, by type, for the review period are more 
than the product of the number of children determined by the school/
school food authority to be eligible for free, reduced price, and paid 
meals for the review period times an attendance factor. If the meal 
count, for any type, appears questionable or significantly exceeds the 
product of the number of eligibles, for that type, times an attendance 
factor, documentation showing good cause must be available for review 
by the State agency.
    (B) For each school selected for review, each type of food service 
line provides accurate point of service meal counts, by type, and those 
meal counts are correctly counted and recorded. If an alternative 
counting system is employed (in accordance with Sec.  210.7(c)(2)), the 
State agency shall ensure that it provides accurate counts of 
reimbursable meals, by type, and is correctly implemented as approved 
by the State agency.
    (C) For each school selected for review, all meals are correctly 
counted, recorded, consolidated and reported for the day they are 
served.
    (2) Performance Standard 2 (Lunches claimed for reimbursement by 
the school food authority meet the meal requirements in Sec.  210.10, 
as applicable to the age/grade group reviewed. Breakfasts claimed for 
reimbursement by the school food authority meet the meal requirements 
in Sec.  220.8 of this chapter, as applicable to the age/grade group 
reviewed.) The State agency must follow review procedures, as stated in 
this section and detailed in the FNS Administrative Review Manual, to 
ensure that meals offered by the school food authority meet the food 
component and quantity requirements and the dietary specifications for 
each program, as applicable. Review of these critical areas may occur 
off-site or on-site. The State agency must also follow procedures 
consistent with this section, as specified in the FNS Administrative 
Review Manual, to review applicable areas of Performance Standard 2 in 
the National School Lunch Program's Afterschool Snacks and Seamless 
Summer Option, and in the Special Milk Program.
    (i) Food components and quantities. For each school selected for 
review, the State agency must complete a USDA-approved menu tool, 
review documentation, and observe the meal service to ensure that meals 
offered by the reviewed schools meet the meal patterns for each 
program. To review this area, the State agency must:
    (A) Review menu and production records for the reviewed schools for 
a minimum of one school week (i.e., a minimum number of three 
consecutive school days and a maximum of seven consecutive school days) 
from the review period. Documentation, including food crediting 
documentation, such as food labels, product formulation statements, CN 
labels and bid documentation, must be reviewed to ensure compliance 
with the lunch and breakfast meal patterns. If the documentation review 
reveals problems with food components or quantities, the State agency 
must expand the review to, at a minimum, the entire review period. The 
State agency should consider a school food authority compliant with the 
school meal pattern if:
    (1) When evaluating the daily and weekly range requirements for 
grains and meat/meat alternates, the documentation shows compliance 
with the daily and weekly minimums for these components, regardless of 
whether the school food authority has exceeded the recommended weekly 
maximums for the same components.
    (2) When evaluating the service of frozen fruit, the State agency 
determines that the school food authority serves frozen fruit with or 
without added sugar.
    (B) On the day of review, the State agency must:
    (1) Observe a significant number of program meals, as described in 
the FNS Administrative Review Manual, at each serving line and review 
the corresponding documentation to

[[Page 50189]]

determine whether all reimbursable meal service lines offer all of the 
required food components/items and quantities for the age/grade groups 
being served, as required under Sec.  210.10, as applicable, and Sec.  
220.8 of this chapter, as applicable. Observe meals at the beginning, 
middle and end of the meal service line, and confirm that signage or 
other methods are used to assist students in identifying the 
reimbursable meal. If the State agency identifies missing components or 
inadequate quantities prior to the beginning of the meal service, it 
must inform the school food authority and provide an opportunity to 
make corrections. Additionally, if visual observation suggests that 
quantities offered are insufficient or excessive, the State agency must 
require the reviewed schools to provide documentation demonstrating 
that the required amounts of each component were available for service 
for each day of the review period.
    (2) Observe a significant number of the program meals counted at 
the point of service for each type of serving line to determine whether 
the meals selected by the students contain the food components and food 
quantities required for a reimbursable meal under Sec.  210.10, as 
applicable, and Sec.  220.8 of this chapter, as applicable.
    (3) If Offer versus Serve is in place, observe whether students 
select at least three food components at lunch and at least three food 
items at breakfasts, and that the lunches and breakfasts include at 
least \1/2\ cup of fruits or vegetables.
    (ii) Dietary specifications. The State agency must conduct a meal 
compliance risk assessment for each school selected for review to 
determine which school is at highest risk for nutrition-related 
violations. The State agency must conduct a targeted menu review for 
the school at highest risk for noncompliance using one of the options 
specified in the FNS Administrative Review Manual. Under the targeted 
menu review options, the State agency may conduct or validate an SFA-
conducted nutrient analysis for both lunch and breakfast, or further 
evaluate risk for noncompliance and, at a minimum, conduct a nutrient 
analysis if further examination shows the school is at high risk for 
noncompliance with the dietary specifications in Sec.  210.10 and Sec.  
220.8 of this chapter. The State agency is not required to assess 
compliance with the dietary specifications when reviewing meals for 
preschoolers, and the National School Lunch Program's Afterschool 
Snacks and the Seamless Summer Option.
    (iii) Performance-based cash assistance. If the school food 
authority is receiving performance-based cash assistance under Sec.  
210.7(d), the State agency must assess the school food authority's meal 
service and documentation of lunches served and determine its continued 
eligibility for the performance-based cash assistance.
    (h) General areas of review. The general areas listed in this 
paragraph reflect requirements that must be monitored by the State 
agency when conducting administrative reviews of the National School 
Lunch Program and the School Breakfast Program. Selected aspects of 
these general areas must also be monitored, as applicable and as 
specified in the FNS Administrative Review Manual, when conducting 
administrative reviews of the National School Lunch Program's 
Afterschool Snacks and Seamless Summer Option, the Fresh Fruit and 
Vegetable Program, and the Special Milk Program. The general areas of 
review must include, but are not limited to, the following:
    (1) Resource management. The State agency must conduct an off-site 
assessment of the school food authority's nonprofit school food service 
to evaluate the risk of noncompliance with resource management 
requirements. If risk indicators show that the school food authority is 
at high risk for noncompliance with resource management requirements, 
the State agency must conduct a comprehensive review including, but not 
limited to, the following areas using procedures specified in the FNS 
Administrative Review Manual.
    (i) Maintenance of the nonprofit school food service account. The 
State agency must confirm the school food authority's resource 
management is consistent with the maintenance of the nonprofit school 
food service account requirements in Sec. Sec.  210.2, 210.14, 
210.19(a), and 210.21.
    (ii) Paid lunch equity. The State agency must review compliance 
with the requirements for pricing paid lunches in Sec.  210.14(e).
    (iii) Revenue from nonprogram foods. The State agency must ensure 
that all non-reimbursable foods sold by the school food service, 
including, but not limited to, a la carte food items, adult meals, and 
vended meals, generate at least the same proportion of school food 
authority revenues as they contribute to school food authority food 
costs, as required in Sec.  210.14(f).
    (iv) Indirect costs. The State agency must ensure that the school 
food authority follows fair and consistent methodologies to identify 
and allocate allowable indirect costs to school food service accounts, 
as required in 2 CFR part 200 and Sec.  210.14(g).
    (2) General Program Compliance--(i) Free and reduced price process. 
In the course of the review of each school food authority, the State 
agency must:
    (A) Confirm the free and reduced price policy statement, as 
required in Sec.  245.10 of this chapter, is implemented as approved.
    (B) Ensure that the process used to verify children's eligibility 
for free and reduced price meals in a sample of household applications 
is consistent with the verification requirements, procedures, and 
deadlines established in Sec.  245.6a of this chapter.
    (C) Determine that, for each reviewed school, the meal count system 
does not overtly identify children eligible for free and reduced price 
meals, as required under Sec.  245.8 of this chapter.
    (D) Review at least 10 denied applications to evaluate whether the 
determining official correctly denied applicants for free and reduced 
price meals, and whether denied households were provided notification 
in accordance with Sec.  245.6(c)(7)of this chapter.
    (E) Confirm that a second review of applications has been conducted 
and that information has been correctly reported to the State agency as 
required in Sec.  245.11, if applicable.
    (ii) Civil rights. The State agency must examine the school food 
authority's compliance with the civil rights provisions specified in 
Sec.  210.23(b) to ensure that no child is denied benefits or otherwise 
discriminated against in any of the programs reviewed under this 
section because of race, color, national origin, age, sex, or 
disability.
    (iii) School food authority on-site monitoring. The State agency 
must ensure that the school food authority conducts on-site reviews of 
each school under its jurisdiction, as required by Sec. Sec.  
210.8(a)(1) and 220.11(d) of this chapter, and monitors claims and 
readily observable general areas of review in accordance with 
Sec. Sec.  210.8(a)(2) and (a)(3), and 220.11(d) of this chapter.
    (iv) Competitive food standards. The State agency must ensure that 
the local educational agency and school food authority comply with the 
nutrition standards for competitive foods in Sec. Sec.  210.11 and 
220.12 of this chapter, and retain documentation demonstrating 
compliance with the competitive food service and standards.
    (v) Water. The State agency must ensure that water is available and 
accessible to children at no charge as specified in Sec. Sec.  
210.10(a)(1)(i) and 220.8(a)(1) of this chapter.

[[Page 50190]]

    (vi) Food safety. The State agency must examine records to confirm 
that each school food authority under its jurisdiction meets the food 
safety requirements of Sec.  210.13.
    (vii) Reporting and recordkeeping. The State agency must determine 
that the school food authority submits reports and maintains records in 
accordance with program requirements in this part, and parts 220 and 
245 of this chapter, and as specified in the FNS Administrative Review 
Manual.
    (viii) Program outreach. The State agency must ensure the school 
food authority is conducting outreach activities to increase 
participation in the School Breakfast Program and the Summer Food 
Service Program, as required in Sec.  210.12(d). If the State agency 
administering the Summer Food Service Program is not the same State 
agency that administers the National School Lunch Program, then the two 
State agencies must work together to implement outreach measures.
    (ix) Professional standards. The State agency shall ensure the 
local educational agency and school food authority complies with the 
professional standards for school nutrition program directors, 
managers, and personnel established in Sec.  210.30.
    (x) Local school wellness. The State agency shall ensure the local 
educational agency complies with the local school wellness requirements 
set forth in Sec.  210.30.
    (i) Entrance and exit conferences and notification--(1) Entrance 
conference. The State agency may hold an entrance conference with the 
appropriate school food authority staff at the beginning of the on-site 
administrative review to discuss the results of any off-site 
assessments, the scope of the on-site review, and the number of schools 
to be reviewed.
    (2) Exit conference. The State agency must hold an exit conference 
at the close of the administrative review and of any subsequent follow-
up review to discuss the violations observed, the extent of the 
violations and a preliminary assessment of the actions needed to 
correct the violations. The State agency must discuss an appropriate 
deadline(s) for completion of corrective action, provided that the 
deadline(s) results in the completion of corrective action on a timely 
basis.
    (3) Notification. The State agency must provide written 
notification of the review findings to the school food authority's 
Superintendent (or equivalent in a non-public school food authority) or 
authorized representative, preferably no later than 30 days after the 
exit conference for each review. The written notification must include 
the date(s) of review, date of the exit conference, review findings, 
the needed corrective actions, the deadlines for completion of the 
corrective action, and the potential fiscal action. As a part of the 
denial of all or a part of a Claim for Reimbursement or withholding 
payment in accordance with the provisions of this section, the State 
agency must provide the school food authority a written notice which 
details the grounds on which the denial of all or a part of the Claim 
for Reimbursement or withholding payment is based. This notice, must be 
provided by certified mail, or its equivalent, or sent electronically 
by email or facsimile. The notice must also include a statement 
indicating that the school food authority may appeal the denial of all 
or a part of a Claim for Reimbursement or withholding payment and the 
entity (i.e., FNS or State agency) to which the appeal should be 
directed. The State agency must notify the school food authority, in 
writing, of the appeal procedures as specified in Sec.  210.18(p) for 
appeals of State agency findings, and for appeals of FNS findings, 
provide a copy of Sec.  210.29(d)(3) of the regulations.
    (j) Corrective action. Corrective action is required for any 
violation under either the critical or general areas of the review. 
Corrective action must be applied to all schools in the school food 
authority, as appropriate, to ensure that deficient practices and 
procedures are revised system-wide. Corrective actions may include 
training, technical assistance, recalculation of data to ensure the 
accuracy of any claim that the school food authority is preparing at 
the time of the review, or other actions. Fiscal action must be taken 
in accordance with paragraph (l) of this section.
    (1) Extensions of the timeframes. If the State agency determines 
that extraordinary circumstances make a school food authority unable to 
complete the required corrective action within the timeframes specified 
by the State agency, the State agency may extend the timeframes upon 
written request of the school food authority.
    (2) Documented corrective action. Documented corrective action is 
required for any degree of violation of general or critical areas 
identified in an administrative review. Documented corrective action 
may be provided at the time of the review; however, it must be 
postmarked or submitted to the State agency electronically by email or 
facsimile, no later than 30 days from the deadline for completion of 
each required corrective action, as specified under paragraph (i)(2) of 
this section or as otherwise extended by the State agency under 
paragraph (j)(1) of this section. The State agency must maintain any 
documented corrective action on file for review by FNS.
    (k) Withholding payment. At a minimum, the State agency must 
withhold all program payments to a school food authority as follows:
    (1) Cause for withholding. (i) The State agency must withhold all 
Program payments to a school food authority if documented corrective 
action for critical area violations is not provided with the deadlines 
specified in paragraph (j)(2) of this section;
    (ii) The State agency must withhold all Program payments to a 
school food authority if the State agency finds that corrective action 
for critical area violation was not completed;
    (iii) The State agency may withhold Program payments to a school 
food authority at its discretion, if the State agency found a critical 
area violation on a previous review and the school food authority 
continues to have the same error for the same cause; and
    (iv) For general area violations, the State agency may withhold 
Program payments to a school food authority at its discretion, if the 
State agency finds that documented corrective action is not provided 
within the deadlines specified in paragraph (j)(2) of this section, 
corrective action is not complete, or corrective action was not taken 
as specified in the documented corrective action.
    (2) Duration of withholding. In all cases, Program payments must be 
withheld until such time as corrective action is completed, documented 
corrective action is received and deemed acceptable by the State 
agency, or the State agency completes a follow-up review and confirms 
that the problem has been corrected. Subsequent to the State agency's 
acceptance of the corrective actions, payments will be released for all 
meals served in accordance with the provisions of this part during the 
period the payments were withheld. In very serious cases, the State 
agency will evaluate whether the degree of non-compliance warrants 
termination in accordance with Sec.  210.25.
    (3) Exceptions. The State agency may, at its discretion, reduce the 
amount required to be withheld from a school food authority pursuant to 
paragraph (k)(1)(i) through (iii) of this section by as much as 60 
percent of the total Program payments when it is determined to be in 
the best interest of the Program. FNS may authorize a State agency to 
limit withholding of funds to an amount less than 40 percent of the

[[Page 50191]]

total Program payments, if FNS determines such action to be in the best 
interest of the Program.
    (4) Failure to withhold payments. FNS may suspend or withhold 
Program payments, in whole or in part, to those State agencies failing 
to withhold Program payments in accordance with paragraph (k)(1) of 
this section and may withhold administrative funds in accordance with 
Sec.  235.11(b) of this chapter. The withholding of Program payments 
will remain in effect until such time as the State agency documents 
compliance with paragraph (k)(1) of this section to FNS. Subsequent to 
the documentation of compliance, any withheld administrative funds will 
be released and payment will be released for any meals served in 
accordance with the provisions of this part during the period the 
payments were withheld.
    (l) Fiscal action. The State agency must take fiscal action for all 
Performance Standard 1 violations and specific Performance Standard 2 
violations identified during an administrative review as specified in 
this section. Fiscal action must be taken in accordance with the 
principles in Sec.  210.19(c) and the procedures established in the FNS 
Administrative Review Manual. The State agency must follow the fiscal 
action formula prescribed by FNS to calculate the correct entitlement 
for a school food authority or a school. While there is no fiscal 
action required for general area violations, the State agency has the 
ability to withhold funds for repeat or egregious violations occurring 
in the majority of the general areas as described in paragraph 
(k)(1)(iv).
    (1) Performance Standard 1 violations. A State agency is required 
to take fiscal action for Performance Standard 1 violations, in 
accordance with this paragraph and paragraph (l)(3).
    (i) For certification and benefit issuance errors cited under 
paragraph (g)(1)(i) of this section, the total number of free and 
reduced price meals claimed must be adjusted to according to procedures 
established by FNS.
    (ii) For meal counting and claiming errors cited under paragraph 
(g)(1)(ii) of this section, the State agency must apply fiscal action 
to the incorrect meal counts at the school food authority level, or 
only to the reviewed schools where violations were identified, as 
applicable.
    (2) Performance Standard 2 violations. Except as noted in 
paragraphs (l)(2)(iii) and (l)(2)(iv) of this section, a State agency 
is required to apply fiscal action for Performance Standard 2 
violations as follows:
    (i) For missing food components or missing production records cited 
under paragraph (g)(2) of this section, the State agency must apply 
fiscal action.
    (ii) For repeated violations involving milk type and vegetable 
subgroups cited under paragraph (g)(2) of this section, the State 
agency must apply fiscal action as follows:
    (A) If an unallowable milk type is offered or there is no milk 
variety, any meals selected with the unallowable milk type or when 
there is no milk variety must also be disallowed/reclaimed; and
    (B) If one vegetable subgroup is not offered over the course of the 
week reviewed, the reviewer should evaluate the cause(s) of the error 
to determine the appropriate fiscal action. All meals served in the 
deficient week may be disallowed/reclaimed.
    (iii) For repeated violations involving food quantities and whole 
grain-rich foods cited under paragraph (g)(2) of this section, the 
State agency has discretion to apply fiscal action as follows:
    (A) If the meals contain insufficient quantities of the required 
food components, the affected meals may be disallowed/reclaimed;
    (B) If no whole grain-rich foods are offered during the week of 
review, meals for the entire week of review may be disallowed and/or 
reclaimed;
    (C) If insufficient whole grain-rich foods are offered during the 
week of review, meals for one or more days during the week of review 
may be disallowed/reclaimed.
    (D) If a weekly vegetable subgroup is offered in insufficient 
quantity to meet the weekly vegetable subgroup requirement, meals for 
one day of the week of review may be disallowed/reclaimed; and
    (E) If the amount of juice offered exceeds the weekly limitation, 
meals for the entire week of review may be disallowed/reclaimed.
    (iv) For repeated violations of calorie, saturated fat, sodium, and 
trans fat dietary specifications cited under paragraph (g)(2)(ii) of 
this section, the State agency has discretion to apply fiscal action to 
the reviewed school as follows:
    (A) If the average meal offered over the course of the week of 
review does not meet one of the dietary specifications, meals for the 
entire week of review may be disallowed/reclaimed; and
    (B) Fiscal action is limited to the school selected for the 
targeted menu review and must be supported by a nutrient analysis of 
the meals at issue using USDA-approved software.
    (v) The following conditions must be met prior to applying fiscal 
action as described in paragraphs (l)(2)(ii) through (iv) of this 
section:
    (A) Technical assistance has been given by the State agency;
    (B) Corrective action has been previously required and monitored by 
the State agency; and
    (C) The school food authority remains noncompliant with the meal 
requirements established in part 210 and part 220 of this chapter.
    (3) Duration of fiscal action. Fiscal action must be extended back 
to the beginning of the school year or that point in time during the 
current school year when the infraction first occurred for all 
violations of Performance Standard 1 and specific violations of 
Performance Standard 2. Based on the severity and longevity of the 
problem, the State agency may extend fiscal action back to previous 
school years. If corrective action occurs, the State agency may limit 
the duration of fiscal action for Performance Standard 1 and 
Performance Standard 2 violations as follows:
    (i) Performance Standard 1 certification and benefit issuance 
violations. The total number of free and reduced price meals claimed 
for the review period and the month of the on-site review must be 
adjusted to reflect the State calculated certification and benefit 
issuance adjustment factors.
    (ii) Other Performance Standard 1 and Performance Standard 2 
violations. With the exception of violations described in paragraph 
(l)(3)(i) of this section, a State agency may limit fiscal action from 
the point corrective action occurs back through the beginning of the 
review period for errors.
    (A) If corrective action occurs during the on-site review month or 
after, the State agency would be required to apply fiscal action from 
the point corrective action occurs back through the beginning of the 
on-site review month, and for the review period;
    (B) If corrective action occurs during the review period, the State 
agency would be required to apply fiscal action from the point 
corrective action occurs back through the beginning of the review 
period;
    (C) If corrective action occurs prior to the review period, no 
fiscal action would be required; and
    (D) If corrective action occurs in a claim month between the review 
period and the on-site review month, the State agency would apply 
fiscal action only to the review period.
    (4) Performance-based cash assistance. In addition to fiscal action 
described in paragraphs (l)(2)(i) through

[[Page 50192]]

(v) of this section, school food authorities found to be out of 
compliance with the meal patterns or nutrition standards set forth in 
Sec.  210.10 may not earn performance-based cash assistance authorized 
under Sec.  210.4(b)(1) unless immediate corrective action occurs. 
School food authorities will not be eligible for the performance-based 
reimbursement beginning the month immediately following the 
administrative review and, at State discretion, for the month of 
review. Performance-based cash assistance may resume beginning in the 
first full month the school food authority demonstrates to the 
satisfaction of the State agency that corrective action has taken 
place.
    (m) Transparency requirement. The most recent administrative review 
final results must be easily available to the public.
    (1) The State agency must post a summary of the most recent results 
for each school food authority on the State agency's public Web site, 
and make a copy of the final administrative review report available to 
the public upon request. A State agency may also strongly encourage 
each school food authority to post a summary of the most recent results 
on its public Web site, and make a copy of the final administrative 
review report available to the public upon request.
    (2) The summary must cover meal access and reimbursement, meal 
patterns and nutritional quality of school meals, school nutrition 
environment (including food safety, local school wellness policy, and 
competitive foods), civil rights, and program participation.
    (3) The summary must be posted no later than 30 days after the 
State agency provides the results of administrative review to the 
school food authority.
    (n) Reporting requirement. Each State agency must report to FNS the 
results of the administrative reviews by March 1 of each school year on 
a form designated by FNS. In such annual reports, the State agency must 
include the results of all administrative reviews conducted in the 
preceding school year.
    (o) Recordkeeping. Each State agency must keep records which 
document the details of all reviews and demonstrate the degree of 
compliance with the critical and general areas of review. Records must 
be retained as specified in Sec.  210.23(c) and include documented 
corrective action, and documentation of withholding of payments and 
fiscal action, including recoveries made. Additionally, the State 
agency must have on file:
    (1) Criteria for selecting schools for administrative reviews in 
accordance with paragraphs (e)(2)(ii) and (i)(2)(ii) of this section.
    (2) Documentation demonstrating compliance with the statistical 
sampling requirements in accordance with paragraph (g)(1)(i) of this 
section, if applicable.
    (p) School food authority appeal of State agency findings. Except 
for FNS-conducted reviews authorized under Sec.  210.29(d)(2), each 
State agency shall establish an appeal procedure to be followed by a 
school food authority requesting a review of a denial of all or a part 
of the Claim for Reimbursement or withholding payment arising from 
administrative review activity conducted by the State agency under 
Sec.  210.18. State agencies may use their own appeal procedures 
provided the same procedures are applied to all appellants in the State 
and the procedures meet the following requirements: Appellants are 
assured of a fair and impartial hearing before an independent official 
at which they may be represented by legal counsel; decisions are 
rendered in a timely manner not to exceed 120 days from the date of the 
receipt of the request for review; appellants are afforded the right to 
either a review of the record with the right to file written 
information, or a hearing which they may attend in person; and adequate 
notice is given of the time, date, place and procedures of the hearing. 
If the State agency has not established its own appeal procedures or 
the procedures do not meet the above listed criteria, the State agency 
shall observe the following procedures at a minimum:
    (1) The written request for a review shall be postmarked within 15 
calendar days of the date the appellant received the notice of the 
denial of all or a part of the Claim for Reimbursement or withholding 
of payment, and the State agency shall acknowledge the receipt of the 
request for appeal within 10 calendar days;
    (2) The appellant may refute the action specified in the notice in 
person and by written documentation to the review official. In order to 
be considered, written documentation must be filed with the review 
official not later than 30 calendar days after the appellant received 
the notice. The appellant may retain legal counsel, or may be 
represented by another person. A hearing shall be held by the review 
official in addition to, or in lieu of, a review of written information 
submitted by the appellant only if the appellant so specifies in the 
letter of request for review. Failure of the appellant school food 
authority's representative to appear at a scheduled hearing shall 
constitute the appellant school food authority's waiver of the right to 
a personal appearance before the review official, unless the review 
official agrees to reschedule the hearing. A representative of the 
State agency shall be allowed to attend the hearing to respond to the 
appellant's testimony and to answer questions posed by the review 
official;
    (3) If the appellant has requested a hearing, the appellant and the 
State agency shall be provided with at least 10 calendar days advance 
written notice, sent by certified mail, or its equivalent, or sent 
electronically by email or facsimile, of the time, date and place of 
the hearing;
    (4) Any information on which the State agency's action was based 
shall be available to the appellant for inspection from the date of 
receipt of the request for review;
    (5) The review official shall be an independent and impartial 
official other than, and not accountable to, any person authorized to 
make decisions that are subject to appeal under the provisions of this 
section;
    (6) The review official shall make a determination based on 
information provided by the State agency and the appellant, and on 
program regulations;
    (7) Within 60 calendar days of the State agency's receipt of the 
request for review, by written notice, sent by certified mail, or its 
equivalent, or electronically by email or facsimile, the review 
official shall inform the State agency and the appellant of the 
determination of the review official. The final determination shall 
take effect upon receipt of the written notice of the final decision by 
the school food authority;
    (8) The State agency's action shall remain in effect during the 
appeal process; and
    (9) The determination by the State review official is the final 
administrative determination to be afforded to the appellant.
    (q) FNS review activity. The term ``State agency'' and all the 
provisions specified in paragraphs (a) through (h) of this section 
refer to FNS when FNS conducts administrative reviews in accordance 
with Sec.  210.29(d)(2). FNS will notify the State agency of the review 
findings and the need for corrective action and fiscal action. The 
State agency shall pursue any needed follow-up activity.

0
10. In Sec.  210.19:
0
a. In the seventh sentence of paragraph (a)(1), add the words ``in a 
manner that is consistent with the paid

[[Page 50193]]

lunch equity provision in Sec.  210.14(e) and corresponding FNS 
guidance,'' after the word ``lunches,'';
0
b. Revise paragraph (a)(2);
0
c. In the fifth sentence of paragraph (a)(5), remove the words ``an on-
site'' and the number ``5'' and add in their place the word ``a'' and 
the number ``3'', respectively.
0
d. Remove the sixth sentence of paragraph (a)(5);
0
e. In the second sentence of paragraph (c) introductory text, remove 
the words ``the meal'' and add the phrase ``, 215,'' after the number 
``210'';
0
f. In the second sentence of paragraph (c)(1), add ``, 215,'' after 
``210'';
0
g. In the second sentence of paragraph (c)(2)(i), remove the word 
``lunches'' and add in its place the word ``meals'' and remove the word 
``lunch'' from the third sentence and add in its place the word 
``meal'';
0
h. Remove the fourth sentence of (c)(2)(i);
0
i. In the first sentence of paragraph (c)(2)(ii), remove the reference 
``Sec.  210.18(m)'' and add in its place the reference ``Sec.  
210.18(l)'' and in the last sentence of paragraph (c)(2)(ii), remove 
the word ``lunches'' and add in its place the word ``meals'';
0
j. In paragraph (c)(2)(iii), remove the words ``lunches'' and ``lunch'' 
and add in their place the words ``meals'' and ``meal'', respectively; 
and
0
m. Remove paragraph (g).
    The revision reads as follows:


Sec.  210.19  Additional responsibilities.

    (a) * * *
    (2) Improved management practices. The State agency must work with 
the school food authority toward improving the school food authority's 
management practices where the State agency has found poor food service 
management practices leading to decreasing or low child participation, 
menu acceptance, or program efficiency. The State agency should provide 
training and technical assistance to the school food authority or 
direct the school food authority to places to obtain such resources, 
such as the Institute of Child Nutrition.
* * * * *


Sec.  210.20  [Amended]

0
11. In Sec.  210.20:
0
a. Remove paragraph (a)(5) and redesignate paragraphs (a)(6) through 
(10) as paragraphs (a)(5) through (9); and
0
b. Remove paragraph (b)(7) and redesignate paragraphs (b)(8) through 
(15) as paragraphs (b)(7) through (14).


Sec.  210.23  [Amended]

0
12. In Sec.  210.23, remove paragraph (d) and redesignate paragraph (e) 
as paragraph (d).


Sec.  210.29  [Amended]

0
13. In Sec.  210.29:
0
a. In paragraph (b), remove the words ``or Sec.  210.18a'' and 
``reviews and'';
0
b. In paragraph (d)(1), remove the words ``and/or any follow-up 
review'' from the first sentence; and
0
c. In paragraph (d)(2), remove the words ``or follow-up reviews''.

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

0
14. The authority citation for part 215 continues to read as follows:

    Authority:  42 U.S.C.1772 and 1779.


Sec.  215.11  [Amended]

0
15. In Sec.  215.11:
0
a. In the second sentence of paragraph (b)(2), revise ``Sec.  
210.18(i)'' to read ``Sec.  210.18''; and
0
b. Revise the third sentence of paragraph (b)(2) to read as follows:


Sec.  215.11  Special responsibilities of State agencies.

* * * * *
    (b) * * *
    (2) * * * Compliance reviews of participating schools shall focus 
on the reviewed school's compliance with the required certification, 
counting, claiming, and milk service procedures. * * *
* * * * *

0
16. Revise Sec.  215.18 to read as follows:


Sec.  215.18  Information collection/recordkeeping--OMB assigned 
control numbers.

------------------------------------------------------------------------
                                                            Current OMB
     7 CFR section where  requirements are described        control No.
------------------------------------------------------------------------
215.3(d)................................................       0584-0067
215.5(a)................................................       0584-0005
215.7...................................................       0584-0005
215.10(a), (b), (d).....................................       0584-0005
215.11(c)(1)............................................       0584-0005
215.11(c)(2)............................................       0584-0594
215.12(d)...............................................       0584-0005
215.13a.................................................       0584-0026
215.14a.................................................       0584-0005
------------------------------------------------------------------------

PART 220--SCHOOL BREAKFAST PROGRAM

0
17. The authority citation for part 220 continues to read as follows:

    Authority:  42 U.S.C. 1773, 1779, unless otherwise noted.

0
18. In Sec.  220.8:
0
a. In paragraph (h)(1), remove the phrase ``Effective July 1, 2013 (SY 
2013-2014), as part of the administrative review authorized under Sec.  
210.18 of this chapter, State agencies must conduct a weighted nutrient 
analysis for the school(s) selected for review'' from the first 
sentence, and add in its place the phrase ``When required by the 
administrative review process set forth in Sec.  210.18, the State 
agency must conduct a weighted nutrient analysis''; and
0
b. Revise paragraphs (i) and (j).
    The revisions read as follows:


Sec.  220.8  Meal requirements for breakfasts.

* * * * *
    (i) Nutrient analyses of school meals. Any nutrient analysis of 
school breakfasts conducted under the administrative review process set 
forth in Sec.  210.18 of this chapter must be performed in accordance 
with the procedures established in Sec.  210.10(i) of this chapter. The 
purpose of the nutrient analysis is to determine the average levels of 
calories, saturated fat, and sodium in the breakfasts offered to each 
age grade group over a school week.
    (j) Responsibility for monitoring meal requirements. Compliance 
with the applicable breakfast requirements in paragraph (b) of this 
section, including the dietary specifications for calories, saturated 
fat, sodium and trans fat, and paragraphs (o) and (p) of this section 
will be monitored by the State agency through administrative reviews 
authorized in Sec.  210.18 of this chapter.
* * * * *

0
19. In Sec.  220.11, add paragraph (d) to read as follows:


Sec.  220.11  Reimbursement procedures.

* * * * *
    (d) The school food authority shall establish internal controls 
which ensure the accuracy of breakfast counts prior to the submission 
of the monthly Claim for Reimbursement. At a minimum, these internal 
controls shall include: an on-site review of the breakfast counting and 
claiming system employed by each school within the jurisdiction of the 
school food authority; comparisons of daily free, reduced price and 
paid breakfast counts against data which will assist in the 
identification of breakfast counts in excess of the number of free, 
reduced price and paid breakfasts served each day to children eligible 
for such breakfasts; and a system for following up on those breakfast 
counts which suggest the likelihood of breakfast counting problems.
    (1) On-site reviews. Every school year, each school food authority 
with more than one school shall perform no less than one on-site review 
of the breakfast counting and claiming system and the readily 
observable general areas of review identified under Sec.  210.18(h) of 
this chapter, as specified by FNS, for a minimum of 50 percent of 
schools under its jurisdiction with every school

[[Page 50194]]

within the jurisdiction being reviewed at least once every two years. 
The on-site review shall take place prior to February 1 of each school 
year. Further, if the review discloses problems with a school's meal 
counting or claiming procedures or general review areas, the school 
food authority shall ensure that the school implements corrective 
action, and within 45 days of the review, conduct a follow-up on-site 
review to determine that the corrective action resolved the problems. 
Each on-site review shall ensure that the school's claim is based on 
the counting system and that the counting system, as implemented, 
yields the actual number of reimbursable free, reduced price and paid 
breakfasts, respectively, served for each day of operation.
    (2) School food authority claims review process. Prior to the 
submission of a monthly Claim for Reimbursement, each school food 
authority shall review the breakfast count data for each school under 
its jurisdiction to ensure the accuracy of the monthly Claim for 
Reimbursement. The objective of this review is to ensure that monthly 
claims include only the number of free, reduced price and paid 
breakfasts served on any day of operation to children currently 
eligible for such breakfasts.
* * * * *

0
20. In Sec.  220.13:
0
a. In the sixth sentence of paragraph (b)(2), remove ``SF-269'' and add 
in its place ``FNS-777'';
0
b. Revise paragraphs (f)(2) through (4);
0
c. Revise paragraph (g); and
0
d. Amend paragraph (j) by removing the words ``supervisory assistance'' 
and adding in their place the word ``administrative'' in the first 
sentence.
    The revisions read as follows:


Sec.  220.13  Special responsibilities of State agencies.

* * * * *
    (f) * * *
    (2) State agencies must conduct administrative reviews of the 
school meal programs specified in Sec.  210.18 of this chapter to 
ensure that schools participating in the designated programs comply 
with the provisions of this title. The reviews of selected schools must 
focus on compliance with the critical and general areas of review 
identified in Sec.  210.18 for each program, as applicable, and must be 
conducted as specified in the FNS Administrative Review Manual for each 
program. School food authorities may appeal a denial of all or a part 
of the Claim for Reimbursement or withholding of payment arising from 
review activity conducted by the State agency under Sec.  210.18 of 
this chapter or by FNS under Sec.  210.29(d)(2) of this chapter. Any 
such appeal shall be subject to the procedures set forth under Sec.  
210.18(p) of this chapter or Sec.  210.29(d)(3) of this chapter, as 
appropriate.
    (3) For the purposes of compliance with the meal requirements in 
Sec. Sec.  220.8 and 220.23, the State agency must follow the 
provisions specified in Sec.  210.18(g) of this chapter, as applicable.
    (4) State agency assistance must include visits to participating 
schools selected for administrative reviews under Sec.  210.18 of this 
chapter to ensure compliance with program regulations and with the 
Department's nondiscrimination regulations (part 15 of this title), 
issued under title VI, of the Civil Rights Act of 1964.
* * * * *
    (g) State agencies shall adequately safeguard all assets and 
monitor resource management as required under Sec.  210.18 of this 
chapter, and in conformance with the procedures specified in the FNS 
Administrative Review Manual, to assure that assets are used solely for 
authorized purposes.
* * * * *


Sec.  220.14  [Amended]

0
21. In paragraph (h), add the words ``food authority'' after the word 
``school'' and remove the words ``Sec.  220.8(g), Sec.  220.8(i)(2) and 
(i)(3), whichever is applicable'' and add in their place the words 
``Sec.  220.8 of this part''.

0
22. Revise Sec.  220.22 to read as follows:


Sec.  220.22  Information collection/recordkeeping--OMB assigned 
control numbers.

------------------------------------------------------------------------
                                                            Current OMB
     7 CFR section where  requirements are described        control No.
------------------------------------------------------------------------
220.3(e)................................................       0584-0067
220.7(a),(d), (e).......................................       0584-0012
220.8(a)(3), (o)........................................       0584-0012
220.9(a)................................................       0584-0012
220.11 (a)-(b)..........................................       0584-0012
220.13 (a-1), (b), (c), (e), (f)........................       0584-0012
                                                               0584-0594
220.14(d)...............................................       0584-0012
220.15..................................................       0584-0012
------------------------------------------------------------------------

PART 235--STATE ADMINISTRATIVE EXPENSE FUNDS

0
23. 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).


0
24. In Sec.  235.2, add in alphabetical order a definition for ``Large 
school food authority'' to read as follows:


Sec.  235.2  Definitions.

* * * * *
    Large school food authority means, in any State:
    (1) All school food authorities that participate in the National 
School Lunch Program (7 CFR part 210) and have enrollments of 40,000 
children or more each; or
    (2) If there are less than two school food authorities with 
enrollments of 40,000 or more, the two largest school food authorities 
that participate in the National School Lunch Program (7 CFR part 210) 
and have enrollments of 2,000 children or more each.
* * * * *

    Dated: June 13, 2016.
Yvette S. Jackson,
Acting Administrator, Food and Nutrition Service.
[FR Doc. 2016-17231 Filed 7-28-16; 8:45 am]
 BILLING CODE 3410-30-P