In addition, the proposed emergency amendment to Section 114.1 of the Regulations of the Commissioner of Education is necessary to implement the 2018 Enacted State Budget (Section 2 of Part B of Chapter 56 of the Laws of 2018) which requires all public elementary or secondary schools with at least 70% or more of its students eligible for free or reduced–price meals under the National School Lunch Program to offer all students a school breakfast after the instructional day has begun beginning in the 2018-2019 school year, and continuing every school year thereafter.

The proposed amendment was presented at the September 2018 Regents meeting, as an emergency adoption effective September 18, 2018, for the preservation of the general welfare in order to immediately conform the Regulations of the Commissioner of Education to the requirements of Section 2 of Part B of Chapter 56 of the Laws of 2018, which requires the Breakfast After the Bell program to commence in the 2018-2019 school year and to make technical amendments to the current definitions, terms and meal pattern requirements contained in the Department’s current School Breakfast Program Regulations, 8 NYCRR 114.1, to conform with recent changes to federal regulations (7 CFR Part 220). A Notice of Emergency Action and Proposed Rule Making was published in the State Register on October 3, 2018 for a 60 day public comment period. To date, the Department has not received any comments. No change to the proposed rule is recommended at this time. Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for adoption, after expiration of the required 60-day comment period provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), would be the January 2019 Regents meeting.

Section 114.1. School breakfast program.

(a) Definitions. As used in this section:

(1)…

(2) Severe need school shall mean a school where 40 percent or more of the lunches served to students at the school in the second preceding school year were served free or at a reduced price[, and in which the reimbursement rate per meal established by the United States Secretary of Agriculture is insufficient to cover the costs of a school breakfast program].

(3)…

(4)…

(5)…

(6) Breakfast after the Bell shall mean providing students access to school breakfast after the instructional school day begins.

(b) Nutritional standards. A breakfast shall [contain, as a minimum, each of the following food components in the amounts indicated:

(1) One-half pint of fluid milk served as a beverage or on cereal, or used in part for each purpose.

(2) A one-half cup serving of fruit or full-strength fruit or vegetable juice.

(3) Two servings from one of the following components or one serving from each:

(i) Bread/bread alternate—one slice of whole grain or enriched bread; one serving of a biscuit, roll, muffin, etc., made of whole grain or enriched flour, or a 3/4 cup or one ounce serving of whole grain or enriched or fortified cereal.

(ii) Meat/meat alternate—one ounce of meat/poultry, fish or cheese, 1/2 large egg, two tbsp. of peanut, nut or seed butter, four tbsp. of cooked dry beans, or one ounce or more of the following: peanuts, soynuts, tree nuts, or seeds.

(4) Offer versus serve. Each school shall offer its students all four required food items as set forth under subdivision (b) of this section. Each school may allow students to refuse one food item from any component that the student does not intend to consume. The refused food item may be any of the four items offered to the student. A student's decision to accept all four food items or to decline one of the four food items shall not affect the charge for breakfast.] meet the minimum meal pattern requirements contained in 7 CFR 220.8 and 7 CFR 220.23 (Code of Federal Regulations, 2018 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001: 2018—available at Office for Counsel, New York State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234 and such breakfast shall be served in conformance with the offer versus serve requirements contained in 7 CFR 220.8 (e) (Code of Federal Regulations, 2018 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001: 2018—available at Office for Counsel, New York State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234).

(c) [Eligible participants. Any public school district, private nonprofit school or residential child care institution, as defined in 7 CFR 220.2 (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1993—available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), may apply. In the case of a public school district, approval may be granted for selected schools rather than an entire district.

(d)] Free and/or reduced-price breakfasts. Children to whom free and/or reduced price breakfasts will be served are to be determined by local [sponsoring] agencies in conformity with their existing written policy statements on file in the official records of every sponsoring agency in conformance with [7 CFR 220.7(e) (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1993—available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234).] 7 CFR Part 245 (Code of Federal Regulations, 2018 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001: 2018—available at Office for Counsel, New York State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12231).

[(e) Application. Application will be made on forms required by the commissioner.

(f) Reporting requirements. Monthly reports shall be filed no later than the 10th day of each month. Severe need schools shall report financial data to support the need for the additional reimbursement on the December claim for the period July through December and the June claim for the period January through June.]

[(g)] (d). . .

[(h)] (e). . .

[(i)] (f). . .

[(j)] (g). . .

1. STATUTORY AUTHORITY:

Ed.L.§ 101 charges SED with the general management and supervision of public schools and the educational work of the State.

Ed.L.§ 207 empowers the Board of Regents(Regents) and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.

Ed.L.§ 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education.

Ed.L. § 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.

Chapter 56 of the Laws of 2018 requires all public elementary or secondary schools with at least 70 percent or more of its students eligible for free or reduced-price meals under the National School Lunch Program to offer all students a school breakfast after the instructional day has begun, referred to as Breakfast After the Bell, beginning in the 2018-2019 school year, and each school year thereafter.

The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools.

2. LEGISLATIVE OBJECTIVES:

The proposed rule is necessary to implement and otherwise conform Commissioner's regulations to Section 2 of Part B of Chapter 56 of the Laws of 2018. In addition, technical amendments to the definitions, terms and meal pattern requirements set forth in Section 114.1 are necessary to conform with recent changes to 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (“Department”). Such federal regulations were promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools.

3. NEEDS AND BENEFITS:

Technical amendments to the definitions, terms and meal pattern requirements set forth in Section 114.1 are necessary to conform with recent changes to 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department). Such federal regulations were promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools.

In addition, the Enacted 2018 State Budget (Section 2 of Part B of Chapter 56 of the Laws of 2018), requires all public elementary or secondary schools with at least 70 percent or more of its students eligible for free or reduced–price meals under the National School Lunch Program to offer all students a school breakfast after the instructional day has begun, referred to as Breakfast After the Bell, beginning in the 2018-2019 school year, and each school year thereafter. The schools meeting the 70 percent free and reduced-price meals criteria are determined by the Department based upon data submitted by each school through the basic educational data system (BEDS) from the prior school year.

Each public school required to implement the Breakfast After the Bell program shall consult with teachers, parents, students and members of the community to determine the breakfast service delivery model(s) that best suits its students. Service delivery models may include, but are not limited to, breakfast in the classroom, grab and go breakfast, and second chance breakfast, which would include breakfast served in the cafeteria. Time spent by students consuming breakfast in the classroom may be considered instructional time when instruction is being provided.

Schools subject to this requirement shall provide notice to students' parents and guardians that the school will be offering breakfast to all students after the instructional day has begun.

Any school identified pursuant to this section may annually apply to the Commissioner for a waiver from establishing a school breakfast program after the instructional day has begun. Such waiver may be granted by the Commissioner upon a demonstration of the following by the school:

• a lack of need for a school breakfast program after the instructional day has begun because of a successful existing breakfast program; or

• providing a school breakfast program after the instructional day has begun would cause economic hardship for the school.

4. COSTS:

(a) Costs to State government: None.

(b) Costs to local government: In general, the proposed rule does not impose any costs beyond those required by Section 2 of Part B of Chapter 56 of the Laws of 2018. The 2018 Enacted State Budget provided the Department funding in the amount of $7 million to be distributed to any eligible public school required to implement Breakfast After the Bell through a non-competitive grant. Each eligible public school will receive a one-time incentive of $5,000 that will allow schools to purchase food service equipment, including equipment used for the storage, preservation or distribution of food, that will assist in the implementation and success of a Breakfast After the Bell program.

(c) Costs to private regulated parties: None.

(d) Costs to the regulating agency for implementation and administration of this rule: None.

5. LOCAL GOVERNMENT MANDATES:

The proposed rule does not impose any new costs on the State, local governments, private regulated parties or the State Education Department, but merely implements and otherwise conforms Commissioner's regulations to Section 2 of Part B of Chapter 56 of the Laws of 2018. The 2018 Enacted State Budget provided the Department funding in the amount of $7 million to be distributed to any eligible public school required to implement Breakfast After the Bell through a non-competitive grant. Each eligible public school will receive a one-time incentive of $5,000 that will allow schools to purchase food service equipment, including equipment used for the storage, preservation or distribution of food, that will assist in the implementation and success of a Breakfast After the Bell program.

6. PAPERWORK:

The proposed rule does not impose any additional paperwork requirements.

7. DUPLICATION:

The proposed rule does not duplicate existing State or federal regulations.

8. ALTERNATIVES:

The proposed rule is necessary to implement and otherwise conform Commissioner's regulations to Section 2 of Part B of Chapter 56 of the Laws of 2018. In addition, technical amendments to the definitions, terms and meal pattern requirements set forth in Section 114.1 are necessary to conform with recent changes to 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department). Such federal regulations were promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools. Therefore, no alternatives were considered.

9. FEDERAL STANDARDS:

There are no related federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance by the effective date of the rule.

(a) Small businesses:

The proposed amendment will not impose any additional compliance requirements and is necessary to is necessary to implement and otherwise conform Commissioner's Regulations to Section 2 of Part B of Chapter 56 of the Laws of 2018. In addition, technical amendments to the definitions, terms and meal pattern requirements set forth in Section 114.1 are necessary to conform with recent changes to 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department). Such federal regulations were promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools.

The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

(b) Local government:

1. EFFECT OF RULE:

The proposed amendment applies to each of the 695 public school districts in the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement the provisions of Section 2 of Part B of Chapter 56 of the Laws of 2018, 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department) and the amendments to those federal regulations as promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966.

3. NEEDS AND BENEFITS:

Technical amendments to the definitions, terms and meal pattern requirements set forth in Section 114.1 are necessary to conform with recent changes to 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department). Such federal regulations were promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools.

In addition, the Enacted 2018 State Budget (Section 2 of Part B of Chapter 56 of the Laws of 2018), requires all public elementary or secondary schools with at least 70 percent or more of its students eligible for free or reduced–price meals under the National School Lunch Program to offer all students a school breakfast after the instructional day has begun, referred to as Breakfast After the Bell, beginning in the 2018-2019 school year, and each school year thereafter. The schools meeting the 70 percent free and reduced-price meals criteria are determined by the Department based upon data submitted by each school through the basic educational data system (BEDS) from the prior school year.

Each public school required to implement the Breakfast After the Bell program shall consult with teachers, parents, students and members of the community to determine the breakfast service delivery model(s) that best suits its students. Service delivery models may include, but are not limited to, breakfast in the classroom, grab and go breakfast, and second chance breakfast, which would include breakfast served in the cafeteria. Time spent by students consuming breakfast in the classroom may be considered instructional time when instruction is being provided.

Schools subject to this requirement shall provide notice to students' parents and guardians that the school will be offering breakfast to all students after the instructional day has begun.

Any school identified pursuant to this section may annually apply to the Commissioner for a waiver from establishing a school breakfast program after the instructional day has begun. Such waiver may be granted by the Commissioner upon a demonstration of the following by the school:

• a lack of need for a school breakfast program after the instructional day has begun because of a successful existing breakfast program; or

• providing a school breakfast program after the instructional day has begun would cause economic hardship for the school.

4. PROFESSIONAL SERVICES:

The proposed amendment imposes no additional professional service requirements on school districts.

5. COMPLIANCE COSTS:

In general, the proposed rule does not impose any costs beyond those required by Section 2 of Part B of Chapter 56 of the Laws of 2018. The 2018 Enacted State Budget provided the Department funding in the amount of $7 million to be distributed to any eligible public school required to implement Breakfast After the Bell through a non-competitive grant. Each eligible public school will receive a one-time incentive of $5,000 that will allow schools to purchase food service equipment, including equipment used for the storage, preservation or distribution of food, that will assist in the implementation and success of a Breakfast After the Bell program.

6. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any additional costs or technological requirements on local governments.

7. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement the provisions of Section 2 of Part B of Chapter 56 of the Laws of 2018, 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department) and the amendments to those federal regulations as promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966. Accordingly, no alternatives were considered.

8. LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule have been solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

Technical amendments to the definitions, terms and meal pattern requirements set forth in Section 114.1 are necessary to conform with recent changes to 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department). Such federal regulations were promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools.

In addition, the Enacted 2018 State Budget (Section 2 of Part B of Chapter 56 of the Laws of 2018), requires all public elementary or secondary schools with at least 70 percent or more of its students eligible for free or reduced–price meals under the National School Lunch Program to offer all students a school breakfast after the instructional day has begun, referred to as Breakfast After the Bell, beginning in the 2018-2019 school year, and each school year thereafter. The schools meeting the 70 percent free and reduced-price meals criteria are determined by the Department based upon data submitted by each school through the basic educational data system (BEDS) from the prior school year.

Each public school required to implement the Breakfast After the Bell program shall consult with teachers, parents, students and members of the community to determine the breakfast service delivery model(s) that best suits its students. Service delivery models may include, but are not limited to, breakfast in the classroom, grab and go breakfast, and second chance breakfast, which would include breakfast served in the cafeteria. Time spent by students consuming breakfast in the classroom may be considered instructional time when instruction is being provided.

Schools subject to this requirement shall provide notice to students' parents and guardians that the school will be offering breakfast to all students after the instructional day has begun.

Any school identified pursuant to this section may annually apply to the Commissioner for a waiver from establishing a school breakfast program after the instructional day has begun. Such waiver may be granted by the Commissioner upon a demonstration of the following by the school:

• a lack of need for a school breakfast program after the instructional day has begun because of a successful existing breakfast program; or

• providing a school breakfast program after the instructional day has begun would cause economic hardship for the school.

3. COMPLIANCE COSTS:

In general, the proposed rule does not impose any costs beyond those required by Section 2 of Part B of Chapter 56 of the Laws of 2018. The 2018 Enacted State Budget provided the Department funding in the amount of $7 million to be distributed to any eligible public school required to implement Breakfast After the Bell through a non-competitive grant. Each eligible public school will receive a one-time incentive of $5,000 that will allow schools to purchase food service equipment, including equipment used for the storage, preservation or distribution of food, that will assist in the implementation and success of a Breakfast After the Bell program.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment implements Section 2 of Part B of Chapter 56 of the Laws of 2018. Therefore, no alternatives were considered.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment will be solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.

The proposed rule is necessary to implement and otherwise conform Commissioner's Regulations to Section 2 of Part B of Chapter 56 of the Laws of 2018. In addition, technical amendments to the definitions, terms and meal pattern requirements set forth in Section 114.1 are necessary to conform with recent changes to 7 CFR Part 220, the federal regulations governing School Breakfast Programs administered by the State Education Department (Department). Such federal regulations were promulgated pursuant to The Healthy Hunger Free Kids Act (“HHFKA”) of 2010, Public Law 111-296, which amended section 4 of the Child Nutrition Act of 1966 which authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools.

Because it is evident from the nature of the proposed rule that it will have no impact on the number of jobs or employment opportunities in New York state, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

The agency received no public comment.