PART 1. TEXAS DEPARTMENT OF AGRICULTURE
SUBCHAPTER P. APPEAL PROCEDURES FOR THE FOOD AND NUTRITION PROGRAMS
DIVISION 1. APPEAL PROCEDURES FOR THE CHILD AND ADULT CARE FOOD PROGRAM (CACFP)
The Texas Department of Agriculture (the department) adopts new Chapter 1, Subchapter P, Division 1, §§1.1000 - 1.1004, concerning the procedures for appealing the department's action affecting the participation in the department's Child and Adult Care Food Program (CACFP), without change to the proposal published in the November 28, 2008, issue of the Texas Register (33 TexReg 9593). The new division is adopted to put into rule form and make some revisions to the appeal procedures for the CACFP to better conform to the requirements in 7 Code of Federal Regulation §226.6 and to provide for standardized procedures for appealing the department's actions affecting the participation in the CACFP. The department, in a separate submission, is adopting the repeal of Chapter 25, Subchapter A, Division 20, which includes the existing appeal rules for the CACFP.
New §1.1000 provides definitions to be used in the subchapter. New §1.1001 provides requirements for request for administrative review concerning institutions, responsible principals and responsible individuals and sets forth requirements regarding what actions are and are not subject to administrative review, appeal procedures, and combined reviews, and states the effect of agency action. New subsection (c)(6) makes a hearing optional and requires that a request for a hearing be included in the written request for administrative review if the appellant prefers a hearing. A failure to request a hearing in a timely manner will result in a hearing not being provided, unless the Administrative Review Official conducting the review determines that the failure to make a timely request was due to circumstances beyond the control of the appellant. Currently, in appeals brought under the Child and Adult Care Food Program, a hearing is automatically provided upon receipt by TDA of a request for administrative review. This change is being made to make these rules consistent with federal guidelines, that require that a hearing be requested, if desired, and to provide requesting entities with a choice of requesting a hearing or not. TDA's experience thus far in processing appeals has shown that in some cases requesting parties would rather not have a hearing due to cost of travel to Austin and other factors, but did not know they had an option to have their appeal be determined on the record (i.e. wthout a hearing). New §1.1002 provides requirements for an abbreviated administrative review. New §1.1003 provides requirements for a suspension review. New §1.1004 provides requirements for request for administrative review concerning day care homes and sets forth requirements regarding what actions are and are not subject to administrative review, and appeal procedures.
No comments were received on the proposal.
The new sections are adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer the CACFP; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900494
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) adopts new Chapter 1, Subchapter P, Division 2, §1.1010 and §1.1011, concerning the procedures for appealing the department's action affecting the participation in the department's Summer Food Service Program (SFSP), without change to the proposal published in the November 28, 2008, issue of the Texas Register (33 TexReg 9597). The new division is adopted to put into rule form and make some revisions to the appeal procedures to better conform to the requirements in 7 Code of Federal Regulation §225.13 and to provide for standardized procedures for appealing the department's actions affecting the participation in the SFSP. The department, in a separate submission, is adopting the repeal of Chapter 25, Subchapter B, Division 14, which includes the existing appeal rules for the SFSP.
New §1.1010 provides definitions to be used in the subchapter. New §1.1011 sets forth requirements regarding what actions are and are not subject to administrative review, appeal procedures, and states the effect of agency action. New subsection (c)(6) makes a hearing optional and requires that a request for a hearing be included in the written request for administrative review, if the appellant prefers a hearing. A failure to request a hearing in a timely manner will result in a hearing not being provided, unless the Administrative Review Official conducting the review determines that the failure to make a timely request was due to circumstances beyond the control of the appellant. Currently, in appeals brought under the Summer Food Service Program, a hearing is automatically provided upon receipt by TDA of a request for administrative review. This change is being made to make rules consistent with federal guidelines, that require that a hearing be requested, to make all program appeals consistent, and to provide requesting entities with a choice of requesting a hearing or not. TDA's experience thus far in processing appeals has shown that in some cases requesting parties would rather not have a hearing due to cost of travel to Austin and other factors, but did not know they had an option to have their appeal be determined on the record (i.e., without a hearing).
No comments were received on the proposal.
The new sections are adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer the SFSP; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900495
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) adopts new Chapter 1, Subchapter P, Division 3, §1.1020 and §1.1021, concerning the procedures for appealing the department's action affecting the participation in the department's National School Lunch Program (NSLP), without change to the proposal published in the November 28, 2008, issue of the Texas Register (33 TexReg 9599). The new division is adopted to put into rule form and make some revisions to the appeal procedures to better conform to the requirements in 7 Code of Federal Regulation §210.18 and to provide for standardized procedures for appealing the department's actions affecting the participation in the NSLP. The department, in a separate submission, is adopting the repeal of Chapter 25, Subchapter E, Division 9, which contains the existing appeal rules for the NSLP.
New §1.1020 provides definitions to be used in the subchapter. New §1.1021 sets forth requirements regarding what actions are and are not subject to administrative review, appeal procedures and states the effect of agency action.
No comments were received on the proposal.
The new sections are adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer the NSLP; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900496
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) adopts new Chapter 1, Subchapter P, Division 4, §1.1030 and §1.1031, concerning the procedures for appealing the department's action affecting the participation in the department's School Breakfast Program (SBP), without change to the proposal published in the November 28, 2008, issue of the Texas Register (33 TexReg 9600). The new division is adopted to put into rule form and make some revisions to the appeal procedures to better conform to the requirements in 7 Code of Federal Regulation §220.13 and to provide for standardized procedures for appealing the department's actions affecting the participation in the SBP. The department, in a separate submission, is adopting the repeal of Chapter 25, Subchapter D, Division 9, which contains the existing appeal rules for the SBP.
New §1.1030 provides definitions to be used in the subchapter. New §1.1031 sets forth requirements regarding what actions are and are not subject to administrative review, appeal procedures and states the effect of agency action.
No comments were received on the proposal.
The new sections are adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer the SBP; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900497
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) adopts new Chapter 1, Subchapter P, Division 5, §1.1040 and §1.1041, concerning the procedures for appealing the department's action affecting the participation in the department's Special Milk Program for Children (SMP), without change to the proposal published in the November 28, 2008, issue of the Texas Register (33 TexReg 9602). The new division is adopted to put into rule form and make some revisions to the appeal procedures to better conform to the requirements in 7 Code of Federal Regulation §215.11 and to provide for standardized procedures for appealing the department's actions affecting the participation in the SMP. The department, in a separate submission, is adopting the repeal of Chapter 25, Subchapter C, Division 9, which contains the existing appeal rules for the SMP.
New §1.1040 provides definitions to be used in the subchapter. New §1.1041 sets forth requirements regarding what actions are and are not subject to administrative review, appeal procedures and states the effect of agency action.
No comments were received on the proposal.
The new sections are adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer the SMP; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900498
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (TDA) adopts new Chapter 1, Subchapter P, Division 6, §§1.1050 - 1.1053, concerning the procedures for hearing appeals of the department's action affecting the participation in the department's Food and Nutrition Programs, without change to the proposal published in the November 28, 2008, issue of the Texas Register (33 TexReg 9603). The new division is adopted to put into rule form and make some revisions to TDA's appeal hearing procedures to better conform to the requirements in 7 Code of Federal Regulation §§210.18, 215.11, 220.13, 225.13 and 226.6 and to provide for standardized procedures for hearing appeals of the department's actions affecting the participation in the Food and Nutrition Programs.
New §1.1050 provides definitions to be used in the subchapter. New §1.1051 sets forth the purpose of the new rule. New §1.1052 sets forth the hearing procedures. New §1.1053 provides requirements for the standard of review and burden of proof for the hearing. New §1.1052 makes a hearing optional and requires that a request for a hearing be included in the written request for administrative review if the appellant prefers a hearing. A failure to request a hearing in a timely manner will result in a hearing not being provided, unless the Administrative Review Official (ARO) conducting the review determines that the failure to make a timely request was due to circumstances beyond the control of the appellant. Currently, in appeals brought under the Child and Adult Care Food Program (CACFP) and the Summer Food Service Program (SFSP), a hearing is automatically provided upon receipt by TDA of a request for administrative review. In appeals brought under the National School Lunch Program (NSLP), a hearing must be requested at the time an appeal is filed. This change is being made to make rules consistent with federal guidelines, that require that a hearing be requested, to make all program appeals consistent, and to provide requesting entities with a choice of requesting a hearing or not. TDA's experience thus far in processing appeals has shown that in some cases requesting parties would rather not have a hearing due to cost of travel to Austin and other factors, but did not know they had an option to have their appeal be determined on the record (i.e. without a hearing). New §1.1053 provides that the burden of proof in an appeal hearing be on TDA, rather than the appellant. Appeals brought under the CACFP currently use this standard, while other programs place the burden on the appellant. TDA has placed the burden of proof on TDA for all programs in order to ensure that program procedures are consistent and that the appellant and the ARO conducting the hearing are provided with a thorough understanding of the basis for the action being taken.
No comments were received on the proposal.
The new sections are adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer federal and state nutrition programs including the Child and Adult Care Food Program, the Summer Food Service Program, the National School Lunch Program, the School Breakfast Program and the Special Milk Program; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900499
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (department) adopts the repeal of Chapter 25, Subchapter A, Division 20, §§25.511 - 25.520, relating to appeals under the Child and Adult Care Food Program; Subchapter B, Division 14, §§25.811 - 25.814, relating to appeals under the Summer Food Service Program; Subchapter C, Division 9, §25.1001 and §25.1002, relating to appeals under the Special Milk Program; Subchapter D, Division 9, §25.1201 and §25.1202, relating to appeals under the School Breakfast Program; and Subchapter E, Division 9, §25.1411 and §25.1412, relating to appeals under the National School Lunch Program, without changes to the proposal published in the November 28, 2008, issue of the Texas Register (33 TexReg 9606).
The repeals are adopted to allow the department to adopt uniform appeal and hearing procedures for all food and nutrition programs. The repealed sections are replaced by appeal and hearing procedures adopted to be included in Title 4, Chapter 1, Subchapter P, which includes general rules of practice for other TDA programs. The adopted new appeal and hearing procedures are published in the adopted rule section of this issue of the Texas Register.
No comments were received on the proposal.
SUBCHAPTER A. CHILD AND ADULT CARE FOOD PROGRAM (CACFP)
The repeal of Chapter 25, Subchapter A, Division 20, §§25.511 - 25.520, is adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer federal and state nutrition programs including the Child and Adult Care Food Program, the Summer Food Service Program, the National School Lunch Program, the School Breakfast Program and the Special Milk Program; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900500
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The repeal of Chapter 25, Subchapter B, Division 14, §§25.811 - 25.814, is adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer federal and state nutrition programs including the Child and Adult Care Food Program, the Summer Food Service Program, the National School Lunch Program, the School Breakfast Program and the Special Milk Program; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900501
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The repeal of Chapter 25, Subchapter C, Division 9, §25.1001 and §25.1002, is adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer federal and state nutrition programs including the Child and Adult Care Food Program, the Summer Food Service Program, the National School Lunch Program, the School Breakfast Program and the Special Milk Program; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900502
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The repeal of Chapter 25, Subchapter D, Division 9, §25.1201 and §25.1202, is adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer federal and state nutrition programs including the Child and Adult Care Food Program, the Summer Food Service Program, the National School Lunch Program, the School Breakfast Program and the Special Milk Program; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900503
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
The repeal of Chapter 25, Subchapter E, Division 9, §25.1411 and §25.1412, is adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer federal and state nutrition programs including the Child and Adult Care Food Program, the Summer Food Service Program, the National School Lunch Program, the School Breakfast Program and the Special Milk Program; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900504
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: March 1, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075
SUBCHAPTER A. TEXAS PUBLIC SCHOOL NUTRITION POLICY
The Texas Department of Agriculture (TDA) adopts new Chapter 26, Subchapter A, §§26.1 - 26.9, concerning the Texas Public School Nutrition Policy (TPSNP), proposed in the November 28, 2008, issue of the Texas Register. Sections 26.2 - 26.4 and 26.9 are adopted with changes. Sections 26.1 and 26.5 - 26.8 are adopted without changes and will not be republished.
The new sections are adopted to adopt by rule the existing TPSNP, in accordance with recommendations made by the Sunset Advisory Commission in its review of the Texas Department of Agriculture. Recognizing that our schools are in a powerful position to influence children and their eating habits, TDA established the TPSNP in 2004 in response to alarming data showing that Texas children were overweight or obese at a significantly higher rate than the nation as a whole. The TPSNP was created in collaboration with public, private and government entities representing the policy's stakeholders, including parents, school administrators, health professionals, and members of the food industry. In addition, in 2007, TDA established the Healthy Students=Healthy Families Advisory Committee to evaluate the TPSNP from the perspective of various stakeholders including health officials, parents, school administrators, and more. Also in 2007, to highlight the commendable role our schools are playing in providing nutritious meals and to point to a more comprehensive focus, TDA began promoting the Three E's of Healthy Living: Education, Exercise and Eating Right. Originally a set of nutrition guidelines, TPSNP enhances the nutrition standards for all foods served in Texas public schools participating in the National School Lunch Program, which includes the Seamless Summer Option and After School Care Program, and School Breakfast Program, including school meals, a la carte items, snack bars, vending machines, school stores, and fundraising through grade-specific guidelines for unregulated foods. The TPSNP was amended in 2006 to enact greater restrictions on competitive foods, candy, fats, and frying. The purpose of the TPSNP, since its creation, has been to promote a healthier environment in Texas schools and to help ensure a healthier future for Texas children. The adopted sections include the policy, all updates to the policy, and all revisions for school years 2008-09 and 2009-10.
New §26.1 provides a statement of purpose. New §26.2 provides definitions of terms that are used in the subchapter. Section 26.2 is adopted with changes to correct a reference in definition (3). New §26.3 provides nutrition requirements for elementary schools including requirements for serving fats and fried foods, requirements for portion sizes, and requirements for serving competitive foods and snacks. Section 26.3 is adopted with changes to correct a reference in subsection (c)(1)(E)(i)(III). New §26.4 provides nutrition requirements for middle and junior high schools, including requirements for serving fats and fried foods, requirements for portion sizes, and requirements for serving competitive foods and snacks. Section 26.4 is adopted with changes to correct a reference in subsection (c)(1)(E)(i)(III). New §26.5 provides nutrition requirements for high schools, including requirements for serving fats and fried foods, requirements for portion sizes, and requirements for serving competitive foods and snacks. New §26.6 provides requirements for the sale or use of foods of minimal nutritional value in schools. New §26.7 provides exemptions to the policy. New §26.8 provides requirements for schools to provide a healthy nutrition environment. New §29.9 is adopted with changes made by TDA at subsections (b), (c), and (e). The word "shall" is changed to "may" in the first sentence of subsection (b), the word "frequency" is added to the first sentence of subsection (c), and the word "additional" changed to "alternative" in that sentence. The changes are made to subsections (b) and (c) to allow TDA more flexibility in determining the appropriateness of a sanction, especially as it relates to minor violations. In subsection (e) the phrase "or program review" is added to the second sentence. The change to subsection (e) is adopted to clarify the circumstances under which a disallowance may be waived, and to make this section consistent with current practice. New §26.9 provides for consequences of non-compliance with the new sections, including a reference to TDA's appeal procedures for appealing a disallowance of meal reimbursements. The procedures found in subsection (h) of §26.9, are the appeal procedures used for this program. TDA is adopting by rule its appeal hearing procedures for its Food and Nutrition programs. The adoption is published in this edition of the Texas Register.
Numerous comments were received generally in support of the proposal by members of the Texas PTA. The Texas Pediatric Society also sent in comments supporting implementation of the proposed rules. Other, more substantive comments were received from individuals.
One commenter stated that the Texas Public School Nutrition Policy (TPSNP) should contain certain elements consistent with the 2005 USDA Dietary Guidelines for Americans (DGA). The commenter suggested 2 percent milk should be eliminated from the school menu, whole grain products should be increased, sodium levels should reflect the 2005 DGAs recommendation, fiber content should reflect the 2005 DGAs recommendation, cholesterol should be less than 100 mg at lunch and less than 75 mg at breakfast averaged over a week, and schools should plan meals that minimize trans-fats.
TDA will take this comment under consideration. While TDA supports improving nutrition standards for all foods served to students during the school day, and is proactive in assisting schools to move in that direction, it would not be prudent at this time to mandate the 2005 DGAs for school meals. The federal Child Nutrition programs will be undergoing reauthorization in Congress in 2009 and the United States Department of Health and Human Services will publish updated Dietary Guidelines in 2010. The National Institute of Medicine is currently in the process of writing school meal patterns that are more aligned with the most current dietary guidelines. Once this process is completed, the United States Department of Agriculture (USDA) will be directing state nutrition agencies on regulatory requirements. TDA will be communicating these requirements to all Texas school districts. These requirements will likely mandate several changes to school meal programs, including the possible aligning of all programs with the updated DGAs. Such changes will require additional training to school district staff and new memoranda being distributed. To streamline communication and minimize costs to school districts, TDA prefers to wait until after the new dietary guidelines are published before considering any potentially needed changes based on the DGA. TDA's Food and Nutrition Division evaluates compliance with requirements for cholesterol, dietary fiber, and sodium content in school meals via the school meal initiative reviews. Nutrient standards do not specify the required levels for each, however, the state agency evaluates these nutrients to ensure that they are decreasing or increasing over time. State promotion and assistance in getting schools to move towards the DGA's is also being accomplished through the USDA's Healthier United States School Challenge.
Another commenter stated they support the TPSNP, and would like to see continued limits on competitive foods in Texas schools and encourage TDA to provide for a future implementation schedule that will eventually remove all competitive foods from the school day in grades K-12. TDA will take this comment under consideration. With direction from its Healthy Students=Healthy Families advisory committee, TDA plans to continually review the TPSNP, and make revisions as necessary. Any revisions must also be developed with the input and coordination of all stakeholders. Another commenter stated they would like the TPSNP implemented into the school system. As a matter of clarification, all public school districts that participate in the National School Lunch or School Breakfast programs are currently required to abide by the TPSNP. While schools that do not participate in these programs do not have to adhere to the TPSNP, the majority of Texas schools do participate in these programs and, therefore, do adhere to the TPSNP. The adopted rules do require that all participants adhere to the TPSNP, however, this is not a new requirement.
Another commenter explained that since her son has started elementary school, he has not been offered healthy food, neither in classroom snacks nor in school lunches. Two related comments came from parents on the lack of healthy alternatives given to children at the elementary level. As a matter of clarification, all public school districts that participate in the National School Lunch or School Breakfast programs must abide by the TPSNP. The TPSNP regulates items served within and outside of reimbursable school meals. Those items outside reimbursable meals must abide by the portion size, fat content, and sugar content, and method of preparation requirements. Those items offered as part of a reimbursable meal by schools must meet minimum nutritional guidelines of one-third of the Recommended Dietary Allowance (RDA) of protein, calcium, iron, and vitamins A and C. No more than 30 percent of the meal's calories can come from fat, and no more than 10 percent can come from saturated fat. Another commenter stated the agency must do everything in its power to improve the quality of school lunches. TDA agrees with this comment. As the federal Child Nutrition Programs are reauthorized in Congress in 2009, efforts will be made to improve the nutritional quality of school lunches. TDA will follow guidance from the federal level in issuing direction to Texas school districts on related changes. TDA is also currently working with child nutrition professionals in the twenty education service centers across the state to provide training on meal acceptability and appeal. Additionally, TDA will rely on guidance from its Healthy Students=Healthy Families advisory committee to improve all meals provided to students during the school day.
Another commenter suggested more needs to be done to educate parents, and that eating habits are formed at home. They also suggested increased nutrition education across curriculums. TDA agrees with this recommendation. Providing nutrition education and information to parents as well as students is a priority of Commissioner Staples and TDA. The Food and Nutrition division of TDA provides information through its Square Meals website and educational materials to students and parents. However, it is a goal of TDA to do more. In TDA's legislative appropriations request for the 2009 session, TDA is asking for $50 million in an exceptional item dedicated towards more nutrition education. Another commenter stated they encourage more stringent guidelines on the foods offered to children at school, and that children will eat foods that are healthy if given the opportunity to do so. TDA agrees with this comment. Through TDA's administration of the TPSNP and its guidance and training to school districts, students are being offered more healthy choices. Participation in the National School Lunch Program and the School Breakfast Program has increased since the TPSNP was first implemented.
The new sections are adopted under the Texas Agriculture Code (the Code), §12.0025, which authorizes the department to administer the National School Lunch Program, the School Breakfast Program, and the Summer Food Service Program; and the Code, §12.016 which authorizes the department to adopt rules as necessary for the administration of its powers and duties under the Code.
§26.2.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) A La Carte--Individually priced food items provided by the school food service department. These items may or may not be part of the reimbursable school meal.
(2) Competitive Foods--Foods and beverages sold or made available to students that compete with the school's operation of the National School Lunch Program, which includes the Seamless Summer Option and After School Care Program, and/or School Breakfast Program. This definition includes, but is not limited to, food and beverages sold or provided in vending machines, in school stores or as part of school fundraisers. School fundraisers include food sold by school administrators or staff (principals, coaches, teachers, etc.), students or student groups, parents or parent groups, or any other person, company or organization.
(3) FMNV--Foods of Minimal Nutritional Value. The four categories of foods and beverages (soda water, water ices, chewing gum, and certain candies) that are restricted by the U. S. Department of Agriculture under the child nutrition programs. See §26.6 of this title (relating to Foods of Minimal Nutritional Value (FMNV)).
(4) Food Service--The school's operation of the National School Lunch Program, which includes the Seamless Summer Option and After School Care Program, and/or School Breakfast Program and includes all food service operations conducted by the school principally for the benefit of schoolchildren and all of the revenue from which is used solely for the operation or improvement of such food services.
(5) Fried Foods--Foods that are cooked by total immersion into hot oil or other fat, commonly referred to as "deep-fat frying." This definition does not include foods that are stir-fried or sautéd.
(6) Fruit or Vegetable Drink--Beverages labeled as containing fruit or vegetable juice in amounts less than 100 percent.
(7) Fruit or Vegetable Juice--Beverages labeled as containing 100 percent fruit or vegetable juice.
(8) Reimbursable School Meal--A meal provided under the National School Lunch Program, which includes the Seamless Summer Option and After School Care Program, and/or School Breakfast Program that meets all USDA requirements in accordance with all applicable federal regulations, policies, instructions, and guidelines and for which the schools receive reimbursement.
(9) School Day--The school day begins with the start of the first breakfast period and continues until the end of the last instruction period of the day (last bell).
(10) Snacks--Either competitive foods or a la carte, as defined in this section, depending on whether or not they are provided by the school food service department.
(11) Trans Fat--When manufacturers use hydrogenation, a process in which hydrogen is added to vegetable oil to turn the oil into a more solid (saturated) fat. Trans fats may be found in such foods as margarine, crackers, candies, cookies, snack foods, fried foods, baked goods, salad dressings, and other processed foods.
§26.3.Elementary Schools.
(a) Definition. For purposes of this subchapter, an elementary school campus is defined as any campus containing a combination of grades Early Elementary (EE) - 6. Kindergarten - grade 12 (K-12) schools may follow the requirements designated for middle and junior high schools in this subchapter.
(b) Foods of Minimal Nutritional Value (FMNV) Policy.
(1) Elementary school campuses may not serve or provide access for students to FMNV and all other forms of candy at any time anywhere on school premises until the end of the last scheduled class.
(2) FMNV may not be sold or given away to students on school premises by school administrators or staff (principals, coaches, teachers, etc.), students or student groups, parents or parent groups, guest speakers, or any other person, company or organization. For exemptions and a listing of foods and beverages restrictions, see §26.6 of this title (relating to Foods of Minimal Nutritional Value (FMNV)).
(c) Nutrition Standards. The following specific nutrition standards apply to all foods and beverages served or made available in reimbursable school meals, a la carte food items, and nutritious classroom snacks to students on elementary school campuses.
(1) Fats and Fried Foods.
(A) Schools and other vendors may not serve to students individual food items that contain more than 23 grams of fat with an exception of one individual food item per week.
(B) No individual food item can exceed 28 grams of fat at any time. This excludes peanut butter when served as part of a reimbursable school meal.
(C) Schools must eliminate deep-fat frying as a method of on-site preparation for foods served as part of reimbursable school meals and a la carte foods. Schools that must make extensive equipment or facility changes must be in compliance by the 2009-10 school year or TDA must have approved a written waiver filed by school district no later than July 31, 2008, to extend the time to implement the equipment or facility changes.
(D) Foods that have been pre-fried, flash-fried or par-fried by the manufacturer may be served to students but must be baked or heated by a method other than deep-fat frying.
(E) Potato products.
(i) French fries and other fried potato products that have been pre-fried, flash-fried or par-fried by the manufacturer may be served to students but must be baked or heated by a method other than deep-fat frying.
(I) Servings must not exceed 3 ounces;
(II) Servings may not be offered more than once per week;
(III) Students may only purchase one serving at a time. (This does not pertain to potato chips, which are mentioned specifically in paragraph (2) of this subsection).
(ii) Baked potato products (wedges, slices, whole, new potatoes) that are produced from raw potatoes and have not been pre-fried, flash-fried or par-fried in any way may be served without restriction.
(F) Schools must include a request for trans fat information in all product specifications.
(G) Schools must reduce the purchase of any products containing trans fats.
(2) Portion Sizes.
(A) The following maximum portion size and nutrient restrictions apply to all foods and beverages served or made available to students on school campuses with the exception of reimbursable school meals, which are governed by USDA regulations.
(B) This subchapter does not provide exceptions or phase-in periods for school districts with vending contracts.
(3) Other.
(A) Fruit and/or vegetables must be offered daily on all points of service.
(i) Fruits and vegetables should be fresh whenever possible.
(ii) Frozen and canned fruits should be packed in natural juice, water or light syrup whenever possible.
(B) Schools must offer 2 percent, 1 percent or skim milk at all points where milk is served.
(C) Elementary schools must serve only milk, unflavored water and 100 percent fruit and or vegetable juice.
(D) No electrolyte replacement beverages (sports drinks) may be served or sold.
(d) Competitive Foods and Snacks
(1) An elementary school campus may not serve competitive foods (or provide access to them through direct or indirect sales) to students anywhere on school premises throughout the school day until the end of the last scheduled class except for those food items made available by the school food service department.
(2) All foods, beverages and snack items must comply with the nutrition standards and portion size restrictions in this subchapter.
(3) Elementary classrooms may allow one nutritious snack per day under the teacher's supervision, but it may not be served during regular meal periods for that class. The snack may be provided by the school food service, the teacher, parents or other groups and should be at no cost to students.
(4) Prepackaged snacks must comply with fat and sugar limits of this subchapter, and must be single-size servings. No snacks (homemade and prepackaged) may contain any FMNV or consist of candy or dessert type items (cookies, cakes, cupcakes, pudding, ice cream or frozen desserts, etc.).
§26.4.Middle/Junior High Schools.
(a) Definition. For purposes of this subchapter, a middle school campus is defined as a campus containing grades 6, 7 and 8. A junior high school campus may contain either grades 7 and 8, or grades 7, 8 and 9. K-12 schools may follow this subchapter's requirements designated for middle and junior high schools.
(b) Foods of Minimal Nutritional Value (FMNV).
(1) Middle school and junior high school campuses may not serve or provide access for students to FMNV and all other forms of candy at any time anywhere on school premises until after the end of the last scheduled class.
(2) FMNV may not be sold or given away to students on school premises by school administrators or staff (principals, coaches, teachers, etc.), students or student groups, parents or parent groups, guest speakers, or any other person, company or organization. For exemptions and a listing of foods and beverages restricted by the FMNV policy, see §26.6 of this title (relating to Foods of Minimal Nutritional Value (FMNV)).
(c) Nutrition Standards. The following specific nutrition standards apply to all foods and beverages served or made available in reimbursable school meals, a la carte food items and competitive foods to students on middle and junior high school campuses.
(1) Fats and Fried Foods.
(A) Schools and other vendors may not serve individual food items that contain more than 23 grams of fat with an exception of one individual food item per week.
(B) No individual food item can exceed 28 grams of fat at any time. This excludes peanut butter when served as part of a reimbursable school meal.
(C) Schools must eliminate deep-fat frying as a method of on-site preparation for foods served as part of reimbursable school meals, a la carte, snack lines, and competitive foods. Schools that must make extensive equipment or facility changes must be in compliance by the 2009-10 school year or TDA must have approved a written waiver filed by school district no later than July 31, 2008, to extend the time to implement the equipment or facility changes.
(D) Foods that have been pre-fried, flash-fried or par-fried by the manufacturer may be served to students but must be baked or heated by a method other than deep-fat frying.
(E) Potato products.
(i) French fries and other fried potato products that have been pre-fried, flash-fried or par-fried by the manufacturer may be served to students but must be baked or heated by a method other than deep-fat frying.
(I) Servings must not exceed 3 ounces;
(II) Servings may not be offered more than three times per week;
(III) Students may only purchase one serving at a time. (This does not apply to potato chips, which are mentioned specifically in paragraph (2) of this subsection relating to Portion Sizes).
(ii) Baked potato products (wedges, slices, whole, new potatoes) that are produced from raw potatoes and have not been pre-fried, flash-fried or par-fried in any way may be served without restriction.
(F) Schools must include a request for trans fat information in all product specifications.
(G) Schools must reduce the purchase of any products containing trans fats.
(2) Portion Sizes.
(A) The following maximum portion size and nutrient restrictions pertain to all foods and beverages served or made available to students on school campuses with the exception of reimbursable school meals, which are governed by USDA regulations.
(B) This subchapter does not provide exceptions or phase-in periods for school districts with vending contracts.
(3) Other.
(A) Fruit and/or vegetables must be offered daily on all points of service.
(i) Fruits and vegetables should be fresh whenever possible.
(ii) Frozen and canned fruits should be packed in natural juice, water or light syrup whenever possible.
(B) Schools must offer 2 percent, 1 percent or skim milk at all points where milk is served.
(d) Competitive Foods.
(1) A middle or junior high school campus may not serve competitive foods (or provide access to them through direct or indirect sales) to students anywhere on school premises from 30 minutes before to 30 minutes after meal periods except for those food items made available by the school food service department.
(2) All foods, beverages and snack items must comply with the nutrition standards and portion size restrictions in this subchapter.
§26.9.Compliance and Penalties.
(a) The Texas Department of Agriculture (TDA) will enforce and diligently monitor schools to ensure compliance with this subchapter.
(b) If TDA determines that a school has violated this subchapter, TDA may disallow meal reimbursement for the day on which the violation occurred and require the school to reimburse the food service account for the disallowed reimbursement.
(c) TDA may, depending on the nature, frequency and severity of the violation, impose alternative sanctions on the school or school district, including disallowance of all meal reimbursements to the school district for the four-week period immediately preceding the day of the violation(s).
(d) TDA may interview school staff and collect evidence to determine the longevity and severity of the violation(s).
(e) TDA may waive a disallowance of meal reimbursement for the violation if the disallowance does not exceed $600. Such a disallowance may be waived for each on-site visit or program review within the school year.
(f) School districts must comply with a documented corrective action plan, approved by TDA. TDA will monitor the school district to ensure compliance with the corrective action plan.
(g) A school district will be notified, in writing, when meal reimbursements are disallowed due to violations of this subchapter.
(h) School districts may appeal disallowance of meal reimbursements in accordance with the requirements set forth in this subsection and TDA's appeal hearing procedures for the Food and Nutrition Programs located in Chapter 1, Subchapter P, Division 6, §§1.1050 - 1.1053 of this title (relating to Administrative Hearing Procedures for Conducting the Appeals of the Food and Nutrition Programs).
(1) School district appeal of TDA findings. A school district may request an administrative review of a denial of all or a part of a disallowance of meal reimbursements arising from the results of a comprehensive on-site evaluation or follow-up activity conducted by TDA under this subchapter. Procedures include the following requirements:
(A) school districts are assured a fair and impartial hearing before an independent official at which they may be represented by legal counsel;
(B) decisions will be rendered in a timely manner not to exceed 120 days from the date of the receipt of the request for review;
(C) school districts are afforded the right to either an administrative review of the record with the right to file written information, or a hearing which they may attend in person; and
(D) adequate notice is given of the time, date, place, and procedures of the hearing.
(2) Request for administrative review. School districts must use the following procedures to request an administrative review (appeal) of action subject to review described in paragraph (1) of this subsection.
(A) Action subject to administrative review. The only action subject to administrative review is the fiscal action disallowing meal reimbursements from the results of a comprehensive on-site evaluation or follow-up activity conducted by TDA under this subchapter.
(B) Procedures for requesting an administrative review (appeal). The following procedures shall apply when a school district requests an administrative review (appeal) of an action subject to appeal under this subsection:
(i) Notice of denial. A school district shall be given notice of the action being taken or proposed, the basis for the action, and the procedures under which the school district may request an administrative review of the action.
(ii) Request for administrative review. The request for an administrative review shall be submitted in writing and postmarked not later than fifteen (15) days after the date the notice of denial is received. The request for review shall also clearly identify the action being appealed, and include a photocopy of the notice of denial. TDA shall acknowledge the receipt of the request for a review within ten (10) days of its receipt of the request.
(iii) Representation. The school district may retain legal counsel, or may be represented by another person.
(iv) Review of record. Any information on which TDA's action was based shall be available to the school district for inspection from the date of receipt of the request for an administrative review.
(v) Opposition. The school district may refute the findings contained in the notice of denial in person or by submitting written documentation to the Administrative Review Official (ARO). In order to be considered, written documentation shall be submitted to the ARO not later than thirty (30) days after receipt of the notice of denial.
(vi) Hearing. A hearing shall be held by the ARO in addition to, or in lieu of, a review of written information only if the school district requests a hearing in the written request for an administrative review. The rules and procedures for a hearing for appeals under this subchapter are found in §§1.1050 -1.1053 of this title.
(vii) Basis for decision. The ARO shall make a determination based on information provided by TDA and the school district, and on Program regulations.
(viii) Time for issuing a decision. Within sixty (60) days of TDA's receipt of the request for an administrative review, the ARO shall inform TDA and the school district of the determination of the ARO. This timeframe is an administrative requirement for TDA and may not be used as a basis for overturning TDA's action if a decision is not made within the specified timeframe.
(ix) Final decision. The determination made by the ARO is the final administrative determination afforded to the school district and shall take effect upon receipt of the written notice of the final decision by the school district.
(x) Record of result of reviews. TDA shall maintain searchable records of all administrative reviews and their disposition for (3) three years from the date of the final decision.
(xi) Effect of State agency action. TDA's action shall remain in effect during the appeal process.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 6, 2009.
TRD-200900459
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: February 26, 2009
Proposal publication date: November 28, 2008
For further information, please call: (512) 463-4075