Purposes of School Food Service Rules, Objectives of the School Food Service Program, Responsibilities for the School Food Service Program, Family Size and Income Level, Supervision and Administration
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Food, Nutrition and Wellness
RULE NOS.:RULE TITLES:
5P-1.001Purposes of School Food Service Rules
5P-1.002Objectives of the School Food Service Program
5P-1.003Responsibilities for the School Food Service Program
5P-1.004Family Size and Income Level
5P-1.005Supervision and Administration
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 44 No. 12, January 18, 2018 issue of the Florida Administrative Register.
5P-1.001 Definitions.
For the purposes of this chapter, the definitions in Section 595.402, F.S., and Sections 7 CFR 210.2, 7 CFR 215.2, 7 CFR 220.2, 7 CFR 225.2, 7 CFR 245.2, 7 CFR 247.1, 7 CFR 248.2, 7 CFR 250.2, 7 CFR 251.3, 7 CFR 252.2, all revised as of January 1, 20187, and hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, and the following shall apply:
(1) through (44) No change.
Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11), FS. Law Implemented 595.402, 595.404, FS. History–New 4-19-73, Repromulgated 12-5-74, Formerly 6A-7.40, Amended 5-3-88, Formerly 6A-7.040, Amended, _________________.
5P-1.002 Appeals.
(1) through (2) No change.
(3) No change.
(a) though (b) No change.
(c) A denial of a Sponsor's claim for reimbursement (except for late submission under 7 CFR 225.9(d)(6) §225.9(d)(6);
(d) through (g) No change.
(h) The suspension of a Sponsor, or
(i) The imposition of an administrative fine.
(4) through (8) No change.
(9) No change.
(a) The Appellant may represent itself, retain legal counsel, or may be represented by another person at the hearing. Failure of the Appellant’s representative to appear at a scheduled hearing shall constitute the waiver of the right to a personal appearance before the hearing official, unless the hearing official agrees to reschedule the hearing.
(b) No change.
(10) through (16) No change.
Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11), FS. Law Implemented 595.404, FS. History–New 3-22-66, 4-11-70, 4-19-73, Repromulgated 12-5-74, Amended 6-28-83, Formerly 6A-7.41, 6A-7.040, Amended ________.
5P-1.003 Responsibilities for the School Food Service Program.
(1) The Department of Agriculture and Consumer Services shall have the following responsibilities:
(a) To require that all Child Nutrition Programs for which federal reimbursement is granted shall meet at least the minimum standards established by the United States Department of Agriculture as provided in 2 CFR 200 and 7 CFR 15, 15a, 15b, 210, 215, 220, 225, 226, 240, 245, 250, and 252, all revised as of January 1, 2018, which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.
(b) No change.
1. The department will accept requests for exemptions from the whole grain-rich requirements authorized in 7 CFR 210.10(c)(2)(iv)(B) and 7 CFR 220.8(c)(2)(iv)(B), which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, if the sponsor can demonstrate hardship(s) in procuring, preparing, or serving compliant whole grain-rich products that are accepted by students. The exemption will not extend beyond each school year. Sponsors may apply for an exemption by submitting a written request along with documents demonstrating said hardship(s) online at https://fans.freshfromflorida.com or by mail to Florida Department of Agriculture and Consumer Services, Division of Food, Nutrition, and Wellness, 600 S. Calhoun Street, Suite 120, Tallahassee, FL 32399.
2. The department will accept requests for exemptions from the low-fat (1-percent milk fat), flavored milk requirements authorized in 7 CFR 210.10(d)(1)(i) and 7 CFR 220.8(d), which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, if the sponsor can demonstrate hardship by documenting a reduction in student milk consumption or an increase in school milk waste. The exemption will not extend beyond each school year. Sponsors may apply for an exemption by submitting a written request along with documents demonstrating said hardship online at https://fans.freshfromflorida.com or by mail to Florida Department of Agriculture and Consumer Services, Division of Food, Nutrition, and Wellness, 600 S. Calhoun Street, Suite 120, Tallahassee, FL 32399.
(c) No change.
(2) No change.
(a) through (b) No change.
(c) To control the sale of food and beverage items in competition with the School Nutrition Program in accordance with 7 CFR 210.11, previously incorporated in paragraph (1)(a) of this rule, (6/28/13), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-04500. Competitive food and beverage items sold to students during the school day must meet the nutrition standards for competitive food as defined and required in 7 CFR 210.11. Unless being sold by the School Nutrition Program, it is impermissible for any competitive food item sold to students during the school day to consist of ready-to-eat combination foods of meat or meat alternate, as defined in 7 CFR 210.10, previously incorporated in paragraph (1)(a) of this rule, and grain products as defined in 7 CFR 210.11. Section 7 CFR 210.10 (6/28/13), is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-04499. Each Sponsor is permitted to grant a special exemption from the standards for competitive foods as specified above for the purpose of conducting infrequent school-sponsored fundraisers, not to exceed the following maximum number of school days per school campus each school year:
School Type
Maximum Number of School Days To Conduct Exempted Fundraisers
Elementary Schools
5 days
Middle School/Junior High Schools
10 days
Senior High Schools
15 days
Combination Schools
10 days
Elementary Schools: Schools providing regular or other instruction at one or more grade levels from PK through grade 5. This category includes schools serving grade 6 if also serving one or more grades PK through 5 (e.g., a K-6 school).
Middle/Junior High Schools: Schools providing regular or other instruction in middle school configurations (grades 6-8) and junior high school configurations (grades 7-9). This category also includes schools serving a single grade in the 6-8 range (e.g., a 6th grade center).
Senior High Schools: Schools providing regular or other instruction at one or more grade levels from 9 to 12. This classification includes 9th grade centers.
Combination Schools: Schools providing regular or other instruction in grade groupings that include more than one of the categories described above (e.g., PK-8, 6-12, K-12, etc.).
Each Sponsor shall maintain records documenting the occurrence of any exempted school-sponsored fundraisers to demonstrate compliance with this rule. No school-sponsored fundraisers, which include the sale of food items, shall be permitted to occur until thirty (30) minutes after the conclusion of the last designated meal service period. For the purposes of this section, “school-sponsored fundraiser” shall be defined as any event or activity occurring on the school campus during which currency, tokens, tickets, or the like are exchanged for the sale or purchase of items or services to benefit the school, a school organization or group, or a charitable organization, and which is authorized according to the Sponsor’s policy and has been approved by the school principal or designee.
(d) To maintain establish a Healthy School Team by June 30, 2015, for all schools under its jurisdiction in accordance with 42 U.S.C. 1758b (10/1/10), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-04501. Any Healthy School Team should include, but not be limited to, the following stakeholders: parents, students, school food service program representatives, school administrators, school health professionals, physical education teachers and the public as provided in 42 U.S.C. 1758b(b)(3). In addition to the requirements specified in 42 U.S.C. 1758b, a Healthy School Team shall:
1. Be responsible for ensuring compliance with paragraph (2)(c) of this rule and 7 CFR 210.11, previously incorporated in paragraph (1)(a) of this rule, as it relates to competitive food and beverage items sold on a school campus;
2. Maintain a school calendar identifying the dates when exempted competitive food fundraisers will occur in accordance with the frequency specified in paragraph (2)(c) of this rule; and,
3. No change.
(e) No change.
(f) To provide facilities and equipment necessary for the efficient and effective operation of the school food service programs, in compliance with Chapter 6A-2, F.A.C.
(f)(g) To provide for the control, administration, supervision, and operation of all School Nutrition Programs. The Sponsor may contract with a food management company to provide food service in one (1) or more schools; provided that the Sponsor shall retain responsibility for its operation, administration, supervision and control, in compliance with the program agreement and federal regulations.
(g)(h) To adopt a policy for providing economically needy students with free and reduced price lunches and breakfasts, when breakfasts are served, that will comply with 2 CFR 200 and 7 CFR 210 and 220, previously incorporated in paragraph (1)(a) of this rule, which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX federal regulations. This policy shall include a plan for verifying economic need of students and shall be approved by the Department.
(i) To adopt policies prescribing procedures for purchases of food and nonfood items in compliance with the requirements of Rule 6A-1.012, F.A.C., of these rules, provided that such policies:
1. Shall establish procedures to assure that all foods purchased conform to the Federal Food, Drug and Cosmetic Act, the Federal Meat Inspection Act, and the Meat Inspection Law of Florida, and any other federal or state safeguards relating to wholesomeness of specific items being purchased.
2. May exempt food products except milk from the bid requirements of Rule 6A-1.012, F.A.C. Milk may be exempt under the following conditions:
a. The district school board has made a finding that no valid or acceptable firm bid has been received within the prescribed time; or
b. The district school board has made a finding that an emergency situation exists and may enter into negotiations with suppliers of milk and shall have the authority to execute contracts under whatever terms and conditions as the board determines to be in the best interest of the school system.
(j) To provide optional meal service at cost to Department approved nonprofit child nutrition sponsors of federal or state nutrition programs operating within a district.
(h)(j) To limit the amount of funds recovered annually for food service indirect costs to the restricted federal indirect cost rate approved annually by the Florida Department of Education, multiplied by the total Nonprofit School Food Service Account expenditures less expenditures for capital outlay, replacement of equipment, and USDA Foods; and cash-in-lieu of donated foods.
(3) No change.
(4) No change.
(a) FDACS 01717 Rev. 04/18, 01/12, National School Lunch Program Claim Form, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.
(b) FDACS 01718 Rev. 04/18, 01/12, Special Milk Program Claim Form, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.
(c) FDACS 01713 Rev. 04/18, Net Cash Resources Report, 01/12, Private School/Institution/Charter School Financial Reporting July 1, ____, through June 30, ____, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.
(d) FDACS 01716, Rev. 04/1812/16, Child Nutrition Programs Agreement, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.
Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11), 1006.06(2) FS. Law Implemented 595.404, 1006.06, 1006.0605, 1006.0606 FS. History–New 3-26-66, Amended 4-17-72, 4-19-73, 10-20-73, 6-17-74, Repromulgated 12-5-74, Amended 5-4-76, 10-18-77, 12-11-79, 1-7-81, 7-28-81, 9-23-81, 6-28-83, 10-15-84, 7-10-85, Formerly 6A-7.42, Amended 5-3-88, 5-16-90, 6-30-92, Formerly 6A-7.042, Amended 10-11-99, 1-25-00, Formerly 6-7.042, 6A-7.0411, Amended 9-24-14, .
5P-1.004 Penalties and Sanctions.
(1) No change.
(a) The Sponsor or Recipient Agency fails to comply with provisions outlined in the Child Nutrition Programs Agreement FDACS 01716, Rev. 04/18, previously incorporated in Rule 5P-1.003 of this chapter a contractual service agreement with the department;
1. No change.
a. through b. No change.
c. The Sponsor or Recipient Agency is noncompliant with applicable bid procedures and contract requirements of 2 CFR 200, previously incorporated in Rule 5P-1.003(1)(a);
d. through e. No change.
f. No change.
(I)i. Noncompliance with the meal service time restrictions set forth in Sections 7 CFR 210.10(l)(1)-(2) and 7 CFR 225.16(c), previously incorporated in rule 5P-1.003(1)(a);
(II)ii. Failure to maintain adequate records in accordance with Section 2 CFR 200.333and the General Records Schedule GS7 for Public Schools PRE-K-12 and Adult and Career Education, incorporated in Rule 1B-24.003(f), FAC;
(III)iii. Failure to adjust meal orders to conform to variations in the number of participants;
(IV)iv. The simultaneous service of more than one meal to any participant;
(V)v. The claiming of Program payments for meals not served to participants;
(VI)vi. Service of fifty percent (50%) of meals or greater which did not include required quantities of all meal components;
(VII)vii. Off-site meal consumption occurs for fifty percent (50%) or greater of participants.
g. through k. No change.
(b) through (c) No change.
(2) No change.
(a) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under 7 CFR 248, revised as of January 1, 2018, which is adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, and Section 595.501, F.S. The purpose of the guidelines is to give notice of the range of penalties that which normally will be imposed for a single violation. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase the penalties to be imposed against the Farmer or Farmers’ Market by the department. No aggravating factors will be applied to increase a fine imposed for a single violation above the maximum as provided in 7 CFR 248.20 or $5,000 the statutory maximum $1,000.00 for each violations of Chapter 595, F.S., or the rules adopted thereunder as provided in Section 570.971, F.S., 595.501, F.S., and 7 CFR 248.20. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine a total penalty and will be grounds for enhancement of penalties.
(b) The department will enforce compliance with this rule chapter by issuing a sanction for violations of 7 CFR 248, previously incorporated in paragraph (2)(a) of this rule.
(c) through (d) No change.
(e) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of 7 CFR 248, previously incorporated in paragraph (2)(a) of this rule, and this rule chapter. The factors shall be applied against each single count of the listed violation.
1. No change.
2. No change.
a. through c. No change.
d. Acts of God or nature that impairs the ability of the Farmer or Farmers’ Market to comply with 7 CFR 248, previously incorporated in paragraph (2)(a) of this rule.
e. through i. No change.
(f) through (g) No change.
(h) No change.
1. No change.
2. Minor Violations. A violation of this rule chapter is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. Minor violations shall result in imposition of a fine not to exceed $1,000.00. The following violations shall be considered minor violations:
a. through d. No change.
3. Major Violations. A violation of this rule chapter is a major violation if it results in economic or physical harm to a person or adversely affects the public health, safety, or welfare, or creates a significant threat of such harm. Major violations shall result in the imposition of an administrative fine not to exceed $5,000.00 for violations of Chapter 595, F.S., and the rules adopted thereunder, or the maximum set forth in 7 CFR 248.10(k), or a sanction, or disqualification as prescribed in 7 CFR 248.10(k) previously incorporated in paragraph (2)(a) of this rule $10,000.00, sanction, or disqualification as prescribed in 7 CFR 248.10(k), or any of the foregoing, as prescribed in 7 CFR 248. The following violations shall be considered major violations:
a. Noncompliance with the nondiscrimination provisions of the USDA regulations as provided in 7 CFR 248.7 previously incorporated in paragraph (2)(a) of this rule;
b. No change.
c. Deliberate fraud as specified in 7 CFR 248.20(c), previously incorporated in paragraph (2)(a) of this rule.
(i) No change.
(j) Failure Should a Farmer or Farmers’ Market fail to timely appeal the agency action listed in a Notice of Action, shall result in the entry of a Default Final Determination against the Farmer or Farmer’s Market responsible for the violation the agency action shall stand and the entity shall be responsible for the violation and shall be subject to the penalties imposed.
Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11), 1006.06(2), FS. Law Implemented 595.404, 595.501, 570.971, 1001.42(16), 1006.06, FS. History–New 9-5-77, Amended 9-6-78, 10-17-78, 10-23-79, 1-7-81, 8-12-81, 4-27-82, 6-28-83, Formerly 6A-7.421, 6A-7.0421, Amended ______.
5P-1.005 Supervision and Administration.
Rulemaking Authority 1006.06(2) FS. Law Implemented 1006.06, 1006.0605, 1006.0606 FS. History–New 3-26-66, Amended 4-11-70, 4-19-73, Repromulgated 12-5-74, Amended 7-28-81, 6-28-83, Formerly 6A-7.45, 6A-7.045, Repealed ______.
