DAR File No. 42614

Education, Administration

Rule R277-719

Standards for Selling Foods Outside of the Reimbursable Meal in Schools

Notice of Proposed Rule

(Amendment)

DAR File No.: 42614
Filed: 02/15/2018 05:13:47 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to outline requirements for local education agency (LEA) policies regarding foods sold outside of the reimbursable meal service. This rule change provides technical changes.

Summary of the rule or change:

This rule change provides technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board of Education policies for Standards for Selling Foods Outside of the Reimbursable Meal in Schools.

Statutory or constitutional authorization for this rule:

• Art. X, Sec. 3
• Section 53E-3-510
• Subsection 53E-3-501(1)(e)
• Subsection 53E-3-401(4)

Anticipated cost or savings to:

the state budget:

This rule change is not estimated to have a fiscal impact on the state budget, because the rule is amended for technical and stylistic changes.

local governments:

This rule change is not estimated to have a fiscal impact on local governments, because the rule is amended for technical and stylistic changes.

small businesses:

This rule change is not estimated to have a fiscal impact on small businesses, because the rule is amended for technical and stylistic changes.

persons other than small businesses, businesses, or local governmental entities:

This rule change is not estimated to have fiscal a impact on persons other than small businesses, businesses, or local government entities, because the rule was amended for technical and stylistic changes.

Compliance costs for affected persons:

There are no compliance costs for affected person.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule change (R277-719) is not estimated to have a fiscal impact. It provides technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies for Standards for Selling Foods Outside of the Reimbursable Meal in Schools.

Sydnee Dickson, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at angie.stallings@schools.utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

04/02/2018

This rule may become effective on:

04/09/2018

Authorized by:

Angela Stallings, Deputy Superintendent, Policy and Communication

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2018	FY 2019	FY 2020
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

The head of the Utah State Board of Education, Sydnee Dickson, has reviewed and approved this fiscal analysis.

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

 

This rule change (R277-719) is not estimated to have a fiscal impact. It provides technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies for Standards for Selling Foods Outside of the Reimbursable Meal in Schools.

 

The Assistant Superintendent of Financial Operations at the Utah State Board of Education, Natalie Grange, has reviewed and approved this fiscal analysis.

 

R277. Education, Administration.

R277-719. Standards for Selling Foods Outside of the Reimbursable Meal in Schools.

R277-719-[2]1. Authority and Purpose.

[A.](1) This rule is authorized by

(a) Utah Constitution Article X, Section 3 , which vests general control and supervision [of]over public education in the Board[,];

(b) Subsection [53A-1-401(3)]53E-3-401(4), which allows the Board to [adopt rules in accordance with its responsibilities] make rules to execute the Board's duties and responsibilities under the Utah Constitution and state law[,];

(c) Section [53A-19-201(1)]53E-3-510, which allows the Board to set standards relating to the use of school lunch revenues[,]; and

(d) Subsection [53A-1-402]53E-3-501(1)(e), which requires the Board to establish rules concerning school productivity and cost effectiveness measures and federal programs.

[B.](2) The purpose of this rule is to outline requirements for LEA policies regarding foods sold outside of the reimbursable meal service.

 

R277-719-[1]2. Definitions.

[A. "Board" means the Utah State Board of Education.]

[B.](1) "Competitive foods" as provided in 7 CFR 210, means all food and beverages, other than meals reimbursed under programs authorized by federal child nutrition laws [the Richard B. Russell National School Lunch Act, 42 U.S.C., and the Child Nutrition Act of 1966,] available for sale to students on the school campus during the school day.

[C.](2)(a) "Eating area[,]" [for purposes of this rule,] means the place where the reimbursable meal is served or eaten.

(b) In some schools, [this] the "eating area" may include the entire campus.

[D. "LEA" means a local education agency, including local school boards/public school district or charter school.]

(3) "Federal child nutrition laws" means the Richard B. Russell National School Lunch Act, 79 P.L. 396, 60 Stat. 230, and the Child Nutrition Act of 1966, 89 P.L. 642, 80 Stat. 885.

[E.](4) "Nutrition Standards" [are defined in] has the same meaning as contained in 7 CFR 210.11 [and are hereby incorporated by reference].

[F.](5) "Reimbursable meal" means a meal which meets the requirements [of] set forth in 7 CFR 210, 211, 215, 220 or 225 [which are incorporated by reference and can] to be claimed for payment.

[G.](6) "School day" means the period from the midnight before, to 30 minutes after the end of [the official school day] a school's calendared class time.

[H.](7) "School campus" means all areas of the property under the jurisdiction of the school that are accessible to students during the school day.

[I.](8) "Unit" means per container, package or amount served.

[J. "USOE" means the Utah State Office of Education.]

[K.](9) "Vending machine" means a self-service device that, upon insertion of a coin, paper currency, token, card or key, dispenses unit servings of food in bulk or in packages.

 

R277-719-3. LEA Policies Regarding Vending Machines.

[A.](1) Each LEA shall develop and implement a policy for schools that choose to provide vending machines.

[B.](2) [The] A policy implemented in accordance with Subsection (1) shall include:

([1]a) a requirement that all agreements for vending machines be in writing in a contract form approved by the local board of education or charter school governing board;

([2]b) accepted uses of vending machine income; and

([3]c) generally accepted accounting procedures, including periodic reports to the LEA of vending machine receipts and expenditures.

 

R277-719-4. LEA Policies Regarding Competitive Food Sales on Campus.

[A. These] (1) Federal nutrition standards apply to the sale of competitive foods in all schools offering programs authorized by [the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966] federal child nutrition laws on the school campus during the school day.

[B.](2)(a) [The p]Profits from competitive foods shall accrue either to a non-profit school account or to the non-profit school food service account.

(b) Profits from competitive foods may not accrue to the benefit of a for-profit account or entity.

[C.](3) If [the] competitive food[(]s[)] were purchased using non-profit school food service funds, the [cost of the item shall be reimbursed to the food service account] reimbursement shall ensure revenue from the sale of non-program foods generates at least the same proportion of revenue as contributed to the non-profit school food service cost.

[D.](4)(a) A competitive food item that is sold by an LEA or an employee or agent shall meet[all the competitive food nutrient standards as outlined in 7 CFR 210.11] federal nutrition standards.

(b) An LEA[s] may use a Smart Snacks calculator, available online at https://foodplanner.healthiergeneration.org/calculator, to verify that competitive foods sold meet[s competitive food] nutrition standards.

[E. Foods which are exempt from the nutrition standards are listed in 7 CFR 210.11(c) - (m).]

 

R277-719-5. Fundraising Using Food [/]or Beverages.

[A.](1) [These fundraising standards apply to school fundraising using food or beverages in all schools offering programs authorized by the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966] An LEA shall comply with the standards set forth in this Section if the LEA has a school that offers programs under federal child nutrition laws on [the] a school campus during the school day.

[B.](2)(a) Competitive food and beverage items sold during the school day shall meet federal nutrition standards [for competitive foods].

(b) [A special exemption is allowed for the sale of] Notwithstanding Subsection (2)(a), a school may sell food or beverages that do not meet the competitive food standards for the purpose of conducting infrequent school-sponsored fundraisers[.], subject to the following restrictions:

(i) An LEA may not hold an exempt fundraiser more than three times per year per site;

(ii) An exempt fundraiser may not last more than five consecutive days; and

(iii) The principal of a school holding an exempt fundraiser shall designate an individual to maintain records for the fundraiser.

[C. LEAs may hold specifically exempted fundraisers no more than three times per year per site, with each fundraiser lasting no longer than five consecutive school days.

(1) The superintendent or principal of the LEA or school shall designate an individual to maintain records of fundraisers at which foods and beverages that do not meet competitive food standards are sold.

(2) Career and Technical Education programs may make written requests for fundraisers, in addition to the three allowed in R277-519-5C, to the USOE Child Nutrition Program Director.]

(3) The Superintendent may grant permission for exempt fundraisers in addition to those allowed under Subsection (2)(b) upon the written request of a career and technical education program.

 

R277-719-6. LEA Local School Wellness Policies.

[A. Wellness policy requirements apply in all schools offering programs authorized by the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966 on the school campus during the school day.

B. ]Each LEA participating in [the National School Lunch Program or the School Breakfast Program] programs under federal child nutrition laws shall establish a local school wellness policy for all schools under the[ir] LEA's jurisdiction[.], which [The written policy] shall, at a minimum, include all the elements required in 7 CFR 210.30.

 

R277-719-7. Miscellaneous Provisions.

[A.](1) [Schools not participating in the National School Lunch/Breakfast programs] If a school does not participate in programs under federal child nutrition laws, the school shall adopt a written policy for the sale of all foods that are not part of the meal service , including vending, a la carte or other food sales.

(2) A [The] policy required under Subsection (1):

(a) shall apply to all foods sold anywhere on the school [grounds] campus during the school day [when school is in session in all areas of the school accessible to students.]; and

[B. The policies] (b) may use the definitions for competitive foods and wellness policies [from] contained in 7 CFR 210.11 and 7 CFR 210.30.

[C. The provisions of this rule shall become effective no later than August 8, 2014.]

[D.](3) [The] A local superintendent or school principal or director [of the LEA or school] shall designate an individual who shall [provide] maintain documentation [during audits to show] of compliance with this [rule] R277-719.

 

KEY: schools, foods, nutrition, vending machines

Date of Enactment or Last Substantive Amendment: [August 7, 2014]2018

Notice of Continuation: [March 12, 2013]2018

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-1-401(3); 53A-19-201(1); 53A-1-402(1)(e)