26904 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

RIN: 0584–AC38

National School Lunch Program and

School Breakfast Program: Additional

Menu Planning Approaches

AGENCY: Food and Nutrition Service,

USDA.

ACTION: Final rule.

SUMMARY: The Healthy Meals for

Children Act expanded the number of

approaches that schools may use to plan

menus under the National School Lunch

and School Breakfast Programs. One of

the menu planning approaches specified

in that law is the traditional meal

pattern that was in effect in School Year

1994–95. This final rule also adds a

method that allows schools to use ‘‘any

reasonable approach’’ to plan menus.

The various menu planning approaches

now available allow schools greater

flexibility in planning menus that both

meet the nutrition requirements of the

school lunch and breakfast programs

and appeal to the nation’s

schoolchildren. We are also clarifying

several State agency monitoring

responsibilities associated with the

implementation of the nutrition

standards of the National School Lunch

Act.

EFFECTIVE DATE: June 8, 2000.

FOR FURTHER INFORMATION CONTACT: Mr.

Robert M. Eadie, Chief, Policy and

Program Development Branch, Child

Nutrition Division, Food and Nutrition

Service, USDA, 3101 Park Center Drive,

Alexandria, Virginia 22302; telephone

703–305–2620.

SUPPLEMENTARY INFORMATION:

Background

What Is the Purpose of this Rule?

The Food and Nutrition Service (FNS

or we) published a proposed rule on

May 15, 1998 (63 FR 27162), as another

step in our efforts to enhance the

nutritional quality of the National

School Lunch Program (NSLP) and

School Breakfast Program (SBP). That

rule proposed to increase the number of

menu planning approaches available to

schools and to clarify how State

agencies should assess the progress of

schools in meeting the Dietary

Guidelines for Americans (‘‘the Dietary

Guidelines’’) and other nutrition

standards. The purpose of this final rule

is to discuss the comments we received

and any revisions we made to the

proposal as well as to codify these

changes into the regulations.

How Has FNS Modified the Nutrition

Requirements for School Lunches and

Breakfasts?

In 1995, we issued a final rule (60 FR

31188, June 13, 1995) that updated the

nutrition requirements for school

lunches and breakfasts. School lunches

and breakfasts now must meet the

Dietary Guidelines including limits on

fat (30% or less of total calories) and

saturated fat (less than 10% of total

calories). School lunches and breakfasts

must also meet specific minimum

standards for key nutrients (protein,

calcium, iron, Vitamin A and Vitamin

C), and for calories.

To help schools implement the

updated nutrition standards, we

provided additional menu planning

approaches. Initially, we added two

analysis-based approaches—nutrient

standard menu planning (NSMP) and

assisted nutrient standard menu

planning (ANSMP). Schools adopting

these approaches use computer analyses

of the menus to determine if they meet

the appropriate nutrient and calorie

levels as well as the limits on fat and

saturated fat. Schools using NSMP

analyze their own menus. Schools using

ANSMP rely on an outside entity (such

as another school district) to conduct an

analysis of their menus. Along with the

analysis, recipes, product specifications,

and such are provided to support the

analyzed menus.

We then developed a meal pattern or

food-based menu planning approach for

schools that preferred this type of

approach. This food-based menu

planning approach is called the

enhanced food-based menu planning

approach. It is ‘‘enhanced’’ as the

number of servings of grains/breads and

fruits/vegetables were increased to

provide sources of low-fat calories. In

1995, when we published the final rule,

the meal pattern that schools had used

since the beginning of the lunch

program was going to be phased out.

However, as discussed below, that meal

pattern as well as an option for schools

to develop alternate menu planning

approaches were made available

through legislation.

What Were the Provisions in the

Proposed Rule?

The May 15, 1998, proposed rule

addressed and requested comments on

the following issues:

1. Reinstating the meal pattern in

effect in School Year 1994–95 as one of

the permanent menu planning

approaches; this meal pattern is

designated ‘‘the traditional food-based

menu planning approach’’;

2. Establishing Recommended Dietary

Allowances (RDAs) and calories levels

for the traditional menu planning

approach using the age/grade groups

already established for the meal pattern;

3. Establishing guidelines for any

reasonable approach to menu planning

(hereinafter called alternate menu

planning approach) with two tiers:

Minor, pre-approved modifications to

existing menu planning approaches and

major changes to existing approaches or

new approaches developed by either a

school food authority (SFA) or a State

agency;

4. Requiring approval for alternate

menu planning approaches unless the

alternate approach has on-going State

agency support and assistance, has five

or more SFAs adopting the approach

and had a public notification issued

prior to implementation of the alternate

approach;

5. Requiring that any alternate menu

planning approaches based on nutrient

analysis use weighted averages and

approved software unless the approach

has on-going State agency support and

assistance and five or more SFAs adopt

the approach;

6. Clarifying certain monitoring

procedures for State agencies; and

7. Citing the 1995 Dietary Guidelines.

What Is the Statutory Basis for These

Changes?

This final rule implements sections of

two public laws (Pub. L.):

Pub.L. 104–149, the Healthy Meals for

Children Act (May 29, 1996); and Pub.L.

104–193, the Personal Responsibility

and Work Opportunity and

Reconciliation Act of 1996 (August 22,

1996).

Pub.L. 104–149 expanded the number

of menu planning approaches which

schools may adopt. One menu planning

approach specified in Pub.L. 104–149 is

the approach that was in effect for

School Year 1994–95. We named this

menu planning approach the

‘‘traditional food-based menu planning

approach.’’ The other menu planning

approach included in the statute was

‘‘any reasonable approach, within

guidelines established by the Secretary.

. . .’’

Before a proposed rule to implement

Pub.L. 104–149 was published, Pub.L.

104–193, was enacted. This law

amended Section 9(f) of the National

School Lunch Act (NSLA) (42 USC

1758(f)(1)(B)) to require that school

lunches and breakfasts provide, over a

week, one-third and one-fourth,

respectively, of the RDAs established by

the Food and Nutrition Board of the

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26905

National Research Council of the

National Academy of Sciences.

However, our regulations at 7 CFR

§ 210.10 already included these

requirements.

Who Commented on the Proposed Rule?

The comment period for the proposed

rule ended on November 12, 1998. We

received a total of 70 comment letters.

The following chart shows the

distribution of commentors by type:

Type of commentor Number of

responses

Local level school food service

professionals ......................... 29

State level school food service

professionals ......................... 15

Advocacy groups ...................... 2

School food service associations ....................................... 2

Food industry and food industry

groups ................................... 19

Health/nutrition professionals ... 3

Total ...................................... 70

Discussion of comments and their

resolution

What Did We Ask for Comments On?

We solicited comments on the

specific provisions to implement ‘‘any

reasonable approach’’ to menu planning

as well as other provisions concerning

revisions to the nutrition standards and

to the assessment requirements. In

addition, we specifically requested

comments on areas that were not

proposed changes to the regulations.

One of these areas was the

appropriateness of the age/grade groups

used to determine the nutrient levels

under the traditional food-based menu

planning approach.

What Are the Basic Age/Grade

Requirements for Planning School

Lunches?

In order to provide schools with a

framework for menu planning and to

reflect the increasing nutrient needs of

children as they grow, we established

age/grade groupings for both nutrient

levels and, for the food-based menu

planning approaches, portion sizes.

Because we do not mandate portion

sizes for the NSMP and ANSMP

approaches, age/grade groupings are

only established for nutrients. The age/

grade groupings for the enhanced-food

based approach (both portion sizes and

nutrients) and the nutrient standard

approach (nutrients only) are the same.

Age/grade groupings for nutrients in the

traditional food-based approach were

not addressed when we initially

established nutrient standards since that

approach was to be phased-out.

When the traditional food-based

menu planning approach was reinstated

by law, we developed a chart with the

RDA requirements that matched the age/

grade groups used in the traditional

approach in effect for school year 1994–

1995. These age/grade groups are two

preschool groups, grades K–3, and 4–12.

There is an optional group for grades 7–

12. We used the same groups as those

already required for portion sizes since

the law stipulated that the ‘‘school

nutrition meal pattern in effect for the

1994–1995 school year’’ be one of the

approaches available to schools. These

age/grade groupings are different than

the ones developed for the new menu

planning approaches.

There are a significant number of

schools that continue to use the

traditional menu planning approach and

offer lunches to all ages of children

using only the meal pattern for grades

4–12 (Group IV). Use of Group IV for all

students regardless of age is allowed by

the regulations and is common practice

in the NSLP. Because of this situation,

we specifically asked for comments on

the appropriateness of using a single

age/grade group to establish the nutrient

standards for schools using the

traditional approach.

What Did the Commentors Suggest?

We received a total of 17 comments

on this issue. Nine commentors

supported use of the same set of age/

grade groups for the nutrient levels for

all menu planning approaches

(preschool, K–6, 7–12, optional K–3).

Eight commentors supported using the

same age/grade groups for nutrient

levels in both of the food-based menu

planning approaches. The preferred

groups were those established for the

enhanced food-based menu planning

approach.

As discussed earlier, we cannot make

changes to the traditional food-based

approach. Congress was clear that the

traditional meal pattern must be

available. Therefore, we are adopting

without revision, the proposed changes

at §§ 210.10(d)(1) and 220.8(c)(1), which

provide the minimum requirements for

nutrient levels under the traditional

food-based menu planning approach.

However, under the provisions for

alternate menu planning approaches, we

are adding two optional modifications

for the lunch program concerning age/

grade groups. These are discussed

below.

What Modifications of Age/Grade

Groups Are Permitted Under the FoodBased Menu Planning Approaches?

The first proposed modification

concerned using age/grade groups for

the majority of children enrolled.

Children enrolled in a given school may

span different age/grade groups for the

nutrient and calorie levels and for the

corresponding portion sizes for

components under the food-based menu

planning approaches. Under NSMP and

ANSMP, if only one age or grade is

outside the established levels for most

of the children, schools may use the

nutrition standards for the majority. We

proposed extending this option to the

food-based approaches for consistency

and flexibility. We received nine

comments on this provision, with seven

supporting it. We are adopting this

provision as final. Schools using either

food-based approach may plan menus

using the minimum nutrient and

quantity requirements applicable to the

majority of children as long as only one

age or grade is outside the levels for the

majority of children. This change is

found at § 210.10(l)(2)(iii).

The second modification allows

schools using the traditional food-based

menu planning approach to adopt the

nutrient standards developed for the

other menu planning approaches. Under

this modification, schools could do the

following:

For grades Portion sizes Nutrient levels

K–6 ........................ Use the portion sizes for grades 4–12 from the traditional

food-based menu planning approach.

Use the nutrient levels for grades K–6 from the other menu

planning approaches.

7–12 ....................... Use the portion sizes for grades 4–12 from the traditional

food-based menu planning approach.

Use the nutrient levels for grades 7–12 from the other menu

planning approaches.

This modification allows schools to

continue to follow the familiar portion

sizes from the traditional food-based

menu planning approach for children in

grades K–6 while adopting the more

focused nutrient and calorie levels

developed under the other menu

planning approaches. For children in

grades 7–12, this modification would

26906 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

allow schools the option of following

the portion sizes for grades 4–12 from

the traditional food-based menu

planning approach while meeting the

nutrient and calorie levels specific to

children in grades 7–12. Use of the more

accurate groupings for the nutrient and

calorie levels gives schools better

information on how well they are

meeting the needs of their students. The

State agency would also use the

modification as the basis for its

nutrition assessment review. This

modification is found at

§ 210.10(l)(2)(ii).

Why Not Count a Grain-Based Dessert

Under Both of the Food-Based Menu

Planning Approaches?

Under the enhanced food-based menu

planning approach, schools may count

one grain-based dessert each day

towards the weekly total. This policy

gives additional flexibility for menu

planners as the number of required

grain/bread items increased

substantially over the number required

for the traditional menu planning

approach. For example, for grades 7–12,

the traditional approach food-based

menu planning approach requires eight

grain/bread servings (but recommends

10 servings) while 15 servings are

required for the enhanced food-based

approach. We were asked to extend this

policy to the traditional menu planning

approach.

We did not propose making this

option available as a modification

allowed under alternate approach

provisions. However, we requested

comments on this issue. We received 28

comments on this issue, 21 of which

supported extending counting grainbased desserts under the traditional

menu planning approach.

While most of the comments

supported a provision that would count

a grain-based dessert under the

traditional menu planning approach, we

are not including it in this final rule

because none of the commentors

provided a strong justification other

than preference. We continue to believe

that counting up to one grain-based

dessert daily as a serving of the grains/

breads component for the traditional

food-based menu planning approach is

too significant a proportion of the total

number of required grain/bread items

(up to 5 of only 8 servings versus up to

5 of 12 or 15 servings in the enhanced

food-based menu planning approach). A

child selecting a grains-based dessert on

a daily basis would have the majority of

their grains/breads component over the

week met through the consumption of

dessert.

What Did Commentors Say About

Reinstatement of the Traditional Meal

Pattern?

In the proposed rule, we incorporated

the traditional meal pattern and any of

its specific provisions in § § 210.10(k)

and 220.8(g) which outline the foodbased menu planning approaches. We

received 25 comments on this provision

with only two comments expressing

concern that following the traditional

menu planning approach makes it more

difficult to meet the nutrition standards.

The main concern of commentors about

the traditional food-based menu

planning approach is the age/grade

groups used for the nutrition standards

which we discussed earlier. We are

hopeful that the optional modifications

for the food-based menu planning

approaches will alleviate the

commentors’ concerns. Therefore, the

proposed provisions to incorporate the

traditional meal pattern as a permanent

option are adopted without change.

What Guidelines Were Proposed for

Alternate Menu Planning Approaches?

Public Law 104–149 allows SFAs to

use ‘‘any reasonable approach’’ to menu

planning. The law also states that these

alternate methods must meet guidelines

established by the Secretary. We

proposed two distinct classes of

alternate menu planning approaches.

First, there are those approaches which

make relatively minor modifications to

the four established menu planning

approaches. For this type of approach,

we proposed that State agencies

establish a general policy allowing SFAs

to adopt such approaches without prior

approval from FNS. The second class of

menu planning approaches involves

unique proposals that depart

significantly from existing approaches.

Because this latter class of alternate

menu planning approaches would be

more unique, we proposed guidelines

for their development.

In General, What Did Commentors Say

About the Provisions for Alternate Menu

Planning Approaches?

We received 23 comments on the

overall concept of allowing States and

SFAs to develop their own menu

planning approaches. All but one

comment supported the concept in

general. We also received 13 comments

on the guidelines we proposed for the

alternate approaches. Ten of these

comments stated that the guidelines

were too complex, too restrictive, and

needed to be more general in nature. We

also received a number of comments on

the specific provisions for alternate

menu planning approaches which are

discussed separately below.

We are required by the statute to

provide guidelines for alternate menu

planning approaches. We based these

guidelines primarily on other statutory

requirements such as serving fluid milk

and meeting the Dietary Guidelines for

Americans. The other guidelines we

proposed addressed regulatory

provisions on program and nutritional

integrity for the school lunch and

breakfast programs. Therefore, we are

adopting the general structure for

alternate menu planning approaches

and their guidelines as final in

§ 210.10(l) and § 220.8(h). Revisions and

modifications are discussed below in

detail.

What Was Proposed About Minor Preapproved Modifications to Existing

Menu Planning Approaches?

The first class of alternate menu

planning approaches proposed was

specific, minor modifications to

provisions of the existing menu

planning approaches. While the State

agency may require prior approval or

may establish additional guidelines for

their adoption, these modifications

could be ‘‘pre-approved’’ as State

agencies may allow their use without

any additional review. The

modifications we proposed only apply

to the NSLP. Two of these modifications

concern adapting age/grade groups to

the school and were previously

discussed. The third modification

allows a weekly meat/meat alternate

standard and is discussed below.

What Was Proposed About the Weekly

Meat/Meat Alternate Standard?

We proposed that schools using either

of the food-based menu planning

approaches be allowed to vary the

quantity of meat/meat alternate on a

daily basis as long as the total amount

served over the school week equals the

minimum daily quantity multiplied by

the number of serving days in the week.

We were asked to consider this option

because it is not always practical to offer

the full daily minimum portion of the

meat/meat alternate component

required for the lunch program for the

food-based menu planning approaches.

For example, a serving of less than the

required four tablespoons of peanut

butter or two ounces of cheese in a

sandwich may produce a more

appealing entree while the full amount

required can lead to waste. We proposed

that the minimum amount of meat/meat

alternate served on a given day could be

only one ounce (or its equivalent)

provided that the full 10 ounces (for

grades 4–12 in the traditional approach/

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26907

grades 7–12 for the enhanced approach)

or their equivalent of meat/meat

alternate were available over a five day

week. This would provide menu

planners using a food-based approach

much of the same flexibility enjoyed by

their counterparts using NSMP while

still ensuring that minimum quantities

of essential foods were offered to

children over a week’s time. We noted

that the option to vary the size of the

meat component does not apply when

the minimum quantity requirement is

one ounce or less.

What Did Commentors Say About the

Proposal on a Weekly Meat/Meat

Alternate Standard?

We received 31 comments on this

issue with 25 supporting the general

idea. However, some of the commentors

requested some clarification about how

the option would work in schools with

multiple choices of meat/meat alternate

and those having offer versus serve

(OVS) procedure. Other commentors

noted that this modification would be

difficult to monitor by State reviewers

given the possibility of multiple choices

of meat/meat alternate items. As the

majority of comments supported this

provision, we are adopting it as final (at

§ 210.10(l)(2)(i) as proposed. Below, we

discuss the comments on how each

day’s meat/meat alternate choices

(which may range from a one ounce

minimum to two or more ounces) are

counted when determining the weekly

total.

What Is the Amount That Counts

Towards the Weekly Total?

A number of commentors asked us to

clarify how to consider multiple choices

of meat/meat alternate items on a daily

basis. For example, on Tuesday, the

school offers a 3 ounce hamburger, a 11⁄2

ounce grilled cheese sandwich, and a

turkey sandwich with 2 ounces of meat.

Which item or average would be used

for the weekly total?

Commentors suggested that the item

with the most ounces of meat/meat

alternate be counted. This is similar to

the method used to determine the

weekly total for grains/breads and is

most advantageous to schools. Others

recommend that the item with the

fewest ounces be counted. This would

help to alleviate the concern of a few

commentors that some children,

especially under OVS, may not take

items that would give them the full 10

ounces over the week. One commentor

recommended that schools with various

menu choices offer at least one two

ounce meat/meat alternate item daily.

While this would ensure that a child

could select an item with two ounces of

meat/meat alternate every day, it limits

the school’s flexibility to plan menus.

There are other components (fruits/

vegetables and grains/breads) that have

both daily and weekly minimums. We

address how the weekly amounts are

counted in guidance, not in the

regulations. Therefore, to be consistent,

we are not including this provision in

the regulations. Also consistent with

established practice and in response to

some of the commentors’ suggestions,

schools would count the largest meat/

meat alternate item offered. Using our

earlier example, the three ounces of

meat in the hamburger would be

counted towards the weekly total. This

method is easiest to track, both for

schools and for State agency reviewers.

We will be incorporating this method

into our guidance materials as

appropriate. In terms of nutritional

integrity, the lunches offered by schools

adopting this modification must

continue to meet the appropriate

nutrient levels and the Dietary

Guidelines. Therefore, § 210.10(l)(2)(i),

as proposed, is adopted as final without

change.

Should the Weekly Option for Meat/

Meat Alternates Be Extended to the

Breakfast Program?

We did not propose extending this

modification to the meat/meat alternategrains/breads component of school

breakfasts because flexibility is already

provided under the food-based menu

planning approaches. We did ask for

comments on this issue. We received

only seven comments—three supporting

extending this option to the SBP and

four recommending we do not include

it as an option for the breakfast program.

We are not extending this option to the

SBP in the final rule. We continue to

believe there is already adequate

flexibility to vary portion sizes of the

meat/meat alternate component in the

breakfast program.

What Was Proposed Concerning Major

Changes or New Approaches Proposed

by SFAs or State agencies?

We also proposed guidelines for a

second class of alternate menu planning

approaches which involves major

changes to one of the existing menu

planning approaches. These alternate

approaches could be developed by

either SFAs or State agencies. We

proposed some basic guidelines

concerning written submissions,

approval and monitoring procedures.

We also provided other guidelines based

primarily on the statutory requirements

and those provisions that we felt were

vital to the programs’ nutritional and

fiscal integrity in order to allow States

agencies and SFAs maximum flexibility

to develop creative alternate menu

planning approaches. Below, we discuss

the major guidelines and any comments

received that addressed that guideline.

What Were the General Comments

About Alternate Approaches That

Involved Major Changes?

We received 13 comments on the

overall policies for alternate approaches,

with 3 commentors approving of the

methodologies and 10 commentors

disapproving. Those that disapproved

felt the procedures were too complex

and restrictive. Commentors stated that

we needed more general guidelines that

provided more flexibility. One

commentor stated that the alternate

approach should only need to

demonstrate that the nutrition standards

are met, that a reimbursable lunch or

breakfast is easily identifiable and that

the approach can be monitored.

In response to these general

comments, as discussed earlier, we are

required by the statute to issue

guidelines on use of alternate menu

planning approaches. The regulatory

guidelines are limited to the statutory

requirements and only those elements

needed to support program integrity,

such as an identifiable reimbursable

lunch or breakfast. The guidelines and

specific comments on them are

discussed below.

What Was Proposed About Written

Submissions?

We proposed that any alternate menu

planning approaches be available in

writing. A written document is needed

for the State agency or FNS to review

prior to approval and for the State

agency to follow when monitoring

compliance with the procedures of the

alternate menu planning approach and

with the nutrition assessment and

compliance aspects of the programs. We

proposed requiring that any alternate

menu planning approach subject to

State agency or FNS approval be

submitted in writing. We also proposed

that any alternate approach not needing

prior approval must be available in

writing for review purposes. We

received no comments on written

submissions. Therefore we are including

the provision on written submissions in

the final regulation at § § 210.10(l)(3)

and 220.8(h)(2). We are also

incorporating a notification procedure

for certain State agency-level alternate

approaches. When a State agency

implements an alternate approach that

is exempt from FNS approval, we are

requiring that we be notified in writing

of its use. This is simply a notification

procedure to keep FNS informed and to

26908 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

allow us to share this information with

other State agencies that might wish to

adopt a similar alternate approach. This

provision is incorporated into

§ 210.10(l)(3) and § 220.8(h)(2).

What Was Proposed Concerning the

Approval of Major Changes Requested

by SFAs?

We proposed that any major change or

new approaches developed by SFAs be

subject to State agency review and

approval. State agency approval is

critical because major variations

developed and used only by SFAs

should be carefully assessed to gauge

potential impact on the delivery of

lunches and breakfasts to children, both

nutritionally and fiscally. Further, SFAs

would not have the benefit of the State

agency’s expertise when designing their

own alternate menu planning approach.

A State agency review would also help

to ensure that program guidelines were

met and that the SFA had the ability to

administer an alternate menu planning

approach. We received only four

comments concerning approval of SFAs’

proposed alternate approaches. Three

commentors supported the prior

approval requirement, while one

commentor noted that the process will

add to the State agency’s workload.

While we recognize that this is an

additional task for State agencies, we

also feel that a prior review and

approval is vital to program integrity.

Therefore, we are adopting the proposal

without change at § 210.10(l)(3)(i) and

§ 220.8(h)(2)(i).

In General, What Was Proposed About

The Approval Process For State-Level

Alternate Menu Planning Approaches?

We proposed that only certain types

of State agency-developed alternate

menu planning approaches be subject to

approval by FNS. State agencydeveloped alternate menu planning

approaches would be reviewed and

approved by FNS regional offices unless

there was an on-going State agency/SFA

partnership and enough SFAs intended

to adopt the alternate menu planning

approach to warrant the significant

involvement of the State agency. We

received only three comments on Statelevel approaches that required preapproval, two of which supported the

review and approval process. Therefore,

we are adopting these provisions as

proposed at § 210.10(l)(3)(ii) and

§ 220.8(h)(2)(ii).

When Are State-Level Alternate

Approaches Not Subject to FNS

Approval?

The next type of alternate menu

planning approach could also involve

either modifications to one of the

existing menu planning approaches or

development of an altogether new

approach. However, we proposed that

these alternate approaches would not

need FNS approval if:

• The State agency is an active and

on-going partner with the schools;

• There are a sufficient number of

SFAs adopting the alternate approach to

warrant the State agency’s commitment

of resources necessary to its successful

operation; and

• The State agency issues an

announcement notifying the public of

the alternate menu planning approach.

By being an active and on-going

partner with SFAs and thus continuing

to be involved with the operation of the

alternate approach, the State agency has

an oversight role. Also, in this capacity,

the State agency has the ability to

promptly adjust the policies and

procedures of the alternate approach to

ensure efficient and effective operation

and compliance with all applicable

requirements. This type of State agencydeveloped alternate approach is

intended to allow innovative, large-scale

State agency-sponsored menu planning

approaches to operate without prior

approval.

We proposed that these alternate

approaches must be adopted by at least

five SFAs within the State. We also

proposed that States issue a public

announcement so that any concerned

parents, students, or program

administrators are advised of the

change. We also requested comments on

whether States should also hold public

hearings (in accordance with

established State procedures) on these

types of alternate approaches.

Are There Any Exemptions Specifically

for State-Level Alternate Approaches

With On-Going Support?

Yes. We also proposed that alternate

menu planning approaches supported

by the State agency’s expertise and

technical assistance were not required

to meet certain guidelines that are

required for other major changes. These

guidelines affect alternate menu

planning approaches that use nutrient

analysis. The two guidelines are the

requirement to use FNS approved

software and to weight the menu

selections.

What Did the Commentors Say About

State Level Alternate Approaches With

On-Going Support?

We received a total of 26 comments

on these types of alternate menu

planning approaches, primarily on

public announcements and hearings.

Three commentors felt that there should

be prior approval for any alternate

approach that would be significantly

different from the standard

requirements. One commentor approved

of the various exemptions, and one

commentor felt that FNS approved

software should be used.

We agree that any type of alternate

menu planning approach needs to be

scrutinized and needs oversight. We are

establishing these controls for all

alternate approaches, albeit in different

ways. We are requiring prior review for

any alternate approach developed by

SFAs as we recognize that the State

agency has the experience to determine

if the alternative is feasible. The State

agency needs to determine if all

required elements are addressed and if

the school has the resources to follow

the alternate procedures. We also have

established oversight for State agencydeveloped alternate approaches,

depending upon how much on-going

interaction the State agency will have

with the schools using them. If the State

agency will simply make their alternate

approach available but not assist

schools in a systematic way, we are

requiring prior FNS approval to

determine if the alternative is generally

workable and if the required elements

are met. We are, however, allowing

additional flexibility for those States

that commit to a continuous, systematic

oversight of schools that adopt the

alternate approach. Because we believe

that we have established adequate

methods for oversight, we are adopting

the proposed requirements on the

approval and guideline exemptions for

alternate approaches with on-going

State support. These provisions are

found at § 210.10(l)(3)(iii) and

§ 220.8(h)(2)(iii).

What Did Commentors Say About

Public Announcements and Public

Hearings?

We proposed requiring that States

issue a public announcement for any

alternate menu planning approach

developed by the State agency. We also

asked for comments on the possibility of

requiring a public hearing concerning

the alternate approach. Twenty-one

comments were received on these

issues—seven on the public

announcement proposal and 14 on the

proposal for public hearings. Five of

those that commented on the proposal

for public announcements opposed it,

saying notification should be left to the

State agency, depending on any internal

requirements. Two commentors

supported the public announcement

proposal, suggesting that a comment

period be required. Fourteen

commentors mentioned the proposed

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26909

requirement for public hearings, and all

opposed it.

Given the opposition, we are deleting

our proposed requirement for a public

announcement. We are also not adding

a requirement for a public hearing. We

feel that States should have the

flexibility to determine if a public

announcement is warranted, either by

the nature of the intended changes to

menu planning or by State law or

precedent. Further, it would be difficult

and inefficient for those States that do

not have an existing procedure to

establish a procedure just for our

purposes. Therefore, this final rule does

not include the provision that was

proposed at §§ 210.10(l)(2)(iii)(C) and

220.8(h)(2)(iii)(C).

What Were the Proposed Guidelines for

Alternate Menu Planning Approaches?

As we mentioned earlier, we

established a limited number of

guidelines for alternate approaches.

These guidelines concerned: Offering

fluid milk, offer versus serve, the

nutrition standards, competitive foods,

how various foods are counted towards

meeting the requirements for

reimbursable meals, identification of

reimbursable lunch or breakfast,

monitoring, weighted averages and

approved software. In the preamble to

the proposed rule, we discussed these

guidelines in detail. In this final rule,

we will summarize each and discuss

any comments that were received on

them.

What Was Proposed About Offering

Fluid Milk?

Section 9(a)(2) of the NSLA (42 U.S.C.

1758(a)(2)) requires that schools offer

fluid milk to children participating in

the NSLP. Section 4(e)(1)(A) of the

Child Nutrition Act of 1966 (CNA), (42

U.S.C. 1773 (e)(2)), requires that a

combination of foods be served in the

SBP and that breakfasts ‘‘. . . meet

minimum nutritional requirements

prescribed by the Secretary. . . .’’ The

provision of fluid milk is one of the

minimum nutritional requirements

established for the SBP under § 220.8.

Therefore, any alternate menu planning

approach must also offer fluid milk for

both the NSLP and SBP. Since we

received no comments and because this

requirement is statutory, we are

adopting it as final without change. The

provisions requiring that milk be offered

in the school programs for any alternate

menu planning approach are found in

this final rule at § 210.10(l)(4)(i) and

§ 220.8(h)(3)(i), for the NSLP and SBP,

respectively.

What Was Proposed About Offer Versus

Serve (OVS)?

Section 9(a)(3)of the NSLA, (42

U.S.C.1758(a)(3)) requires that schools

implement OVS in the NSLP for senior

high school children; at local option,

SFAs may adopt OVS in the lunch

program for lower grades as well.

Section 4(e)(2) of the CNA (42 U.S.C.

1773(e)(2)) gives local SFAs the option

of adopting OVS for the SBP. We

included the OVS provisions in the

guidelines for alternate menu planning

approaches, stressing that any

modifications to OVS must be based on

the existing regulatory OVS structures

as much as possible. The description of

the alternate approach must indicate

what age/grade groups are included,

how plate waste would be reduced and

how the lunch or breakfast, as taken,

will provide a reasonable level of

nutrients and calories. Any

modifications to the existing OVS

procedures must include the number

and type of items (and, if applicable, the

quantities for the items) that constitute

a reimbursable lunch or breakfast. We

received no comments on this issue. We

are adopting as final without changes at

§ 210.10(l)(4)(ii) and § 220.8(h)(3)(ii).

What Was Proposed About Nutrition

Standards?

Section 9(f) of the NSLA (42 U.S.C.

1758(f)) requires school lunches to

approximate, over a week’s time, onethird of the RDAs (breakfasts must

provide one-fourth) needed by growing

children of different ages. In addition,

menus must comply with the

recommendations of the Dietary

Guidelines. Because these requirements

cannot be modified, we included them

as guidelines for alternate approaches in

the proposed rule.

We proposed that any alternate menu

planning approach must show how

these nutrition standards would be met

for the age/grade groups to be served.

We received no comments on this

guideline and are adopting the proposed

provisions as final at § 210.10(l)(4)(iii)

and § 220.8(h)(3)(iii).

What Was Proposed About Competitive

Foods?

For both the NSLP and SBP, Section

10(a) of the CNA (42 U.S.C. 1779(a))

requires regulations ‘‘. . . relating to the

service of food . . . in competition with

the (school meals) programs. . . .’’ To

implement this provision, § 210.11(b)

and § 220.12(a) prohibit the sale of

‘‘foods of minimal nutritional value’’ in

the cafeteria area during the service of

lunch or breakfast. Appendix B to each

of these parts lists the foods considered

to be foods of minimal nutritional value.

Any alternate approach may not alter

this statutory provision and the

implementing regulations. We received

no comments on this proposed

guideline, so it is adopted as final

without change at § 210.10(l)(4)(iv) and

§ 220.8(h)(3)(iv) for the lunch and

breakfast programs, respectively.

What Was Proposed About Determining

How Various Foods Count Towards the

Meal Pattern Under the Food-Based

Alternate Menu Planning Approaches?

We proposed that the current

provisions on how foods are counted

towards meeting the meal pattern

requirements (found in § 210.10 and

§ 220.8, the appendices to Parts 210 and

220 and FNS instructions and guidance)

apply to alternate menu planning

approaches that were food-based (as

opposed to nutrient analysis-based

approaches) in design. Our standards on

counting food items maintain the

nutritional integrity of school meals by

ensuring that foods used to satisfy

quantity and component requirements

provide a sufficient amount of the

component to count toward meeting the

meal requirements.

We received five comments on

applying the policies on how foods are

counted towards the meal patterns to

alternate menu planning approaches.

Four of the comments opposed it while

one supported it. One commentor felt

that policies on counting foods towards

meeting the meal patterns do not ensure

the nutritional integrity of meals.

Another commentor felt we should

allow for alternate means for counting

foods towards the meal patterns to

encourage experimentation.

We continue to believe that our

policies on how foods are counted

towards the meal patterns are needed to

support use of appropriate food

products in the school meals programs

and to provide schools with guidance

on how different food items meet all or

part of the various food components. We

have kept our guidance to a minimum,

usually relying on the standards of

identity established by other Federal

agencies. Given the relatively small

number of comments and the rationale

for our current guidance, we are

adopting, as final without changes, the

proposed provision requiring that the

policies on counting foods towards the

meal patterns be followed for alternate

menu planning approaches. These

provisions are found at § 210.10(l)(4)(v)

and § 220.8(h)(3)(v).

26910 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

Did Anyone Comment on Vegetable

Protein Products?

Eight commentors wanted us to

reconsider our requirements on

vegetable protein products in the NSLP

and SBP. Since publication of this

proposed rule on alternate menu

planning approaches, we issued both a

proposed (64 FR 38839; July 20, 1999)

and final rule (65 FR 12429 March 9,

2000) on the use of VPP in the child

nutrition programs. Please refer to these

publications for information on this

issue.

What Was Proposed About How To

Identify a Reimbursable Lunch or

Breakfast?

Our regulations currently define what

must be contained in a reimbursable

lunch or breakfast for the four menu

planning approaches. (For additional

information about what constitutes a

reimbursable lunch or breakfast under

the various approaches, please refer to

7 CFR 210.10 for the lunch program and

7 CFR 220.8 for the breakfast program.)

We proposed that an alternate menu

planning approach should meet the

existing food component and food item

or menu item requirements for

reimbursable lunches or breakfasts to

the extent possible. However, if the

existing procedures are modified, we

proposed that the State agency or SFA

detail what food components/food items

or menu items constitute a reimbursable

lunch or breakfast under the alternate

menu planning approach. The alternate

approach must describe the number of

items and the types of items (and if

applicable, the quantities for each item)

and how a reimbursable lunch or

breakfast is identified at the point of

service by the children, the cashiers,

and reviewers. We received no

comments on this guideline. Therefore,

the proposals are adopted as final at

§ 210.10(l)(4)(vi) and § 220.8(h)(3)(vi),

respectively, for the school lunch and

breakfast programs.

What Was Proposed About Monitoring

Alternate Approaches?

Our regulations establish methods for

determining if schools are meeting the

administrative requirements for the

school lunch or breakfast programs and

for assessing compliance with the

nutrition standards. One guideline

proposed for alternate approaches

addressed monitoring. This is needed

because the State agency must be able

to determine if reimbursable lunches are

being offered, accepted, and properly

counted and if the lunch service is in

compliance with all of the nutrition and

administrative standards. In the large

majority of cases, alternate menu

planning approaches probably can be

monitored within the existing criteria

for both coordinated review effort (CRE)

and assessments of how schools are

meeting the nutrition standards.

However, in some cases, the proposed

alternate approach may not lend itself to

the established nutrition assessment

methods. In a nutrition assessment, the

State agency reviews the school’s

nutrient analysis or conducts a nutrient

analysis for those schools that use a

food-based menu planning approach.

Therefore, any alternate approach must

indicate if it can be monitored under the

existing criteria. If not, the alternate

approach must include a method for the

State agency’s assessment. We

anticipate that this will primarily

involve a description of the records that

schools maintain to document

compliance with administrative and

nutrition requirements.

We received only one comment on

this guideline. The commentor stated

that the school should not develop any

monitoring criteria; rather, the State

agency should do it. We reiterate that

most alternate approaches will lend

themselves to the existing monitoring

procedures. The only time an SFA

would need to address monitoring in

the design of the alternate menu

planning approach would be to indicate

what differences there were in the

structure of a reimbursable lunch and

the like. The SFA would also need to

indicate where and how the State

agency would find the needed

information to determine compliance

with the nutrition standards. The SFA

would not need to outline a monitoring

system for the State agency to follow;

rather, it would show differences

between the existing menu planning

approaches and their alternate approach

and ways to assist the State agency with

either using or adapting the standard

monitoring procedures. Therefore, we

are adopting this guideline as proposed

without any changes. These provisions

are found at § 210.10(l)(4)(vii) and

§ 220.8(h)(3)(vii) with conforming

amendments at § 210.19(a).

What Was Proposed About Using

Weighted Averages for Alternate Menu

Planning Approaches Based on Nutrient

Standard Menu Planning?

We proposed that alternate menu

planning approaches using nutrient

analysis have the analysis conducted

based on weighting of all foods planned

to be offered as part of the reimbursable

lunch or breakfast based on planned

production except for certain alternate

approaches developed by State agencies.

However, subsequent to issuing the

proposed rule, Pub. L. 105–336, the

Child Nutrition Reauthorization Act of

1998 was enacted. Section 102(b) of that

law (42 U.S.C.1758(f)(4)(B)) prohibits

the Department from requiring use of

weighting until September 30, 2003.

One commentor noted that the

requirement for weighting was in

violation of Pub. L. 105–336. In total,

only three comment letters addressed

this guideline. All of them opposed

requiring this guideline. Weighting

proportionately accounts for the

popularity of the various foods and

menu items offered.

We are amending the regulations to

clarify that schools are not required to

conduct a weighted nutrient analysis

through September 30, 2003. Therefore,

when either SFAs or State agencies

conduct a nutrient analysis for any

reason, weighting cannot be required by

FNS. We are adding that date to the

requirements (at § 210.10(l)(4)(viii) and

§ 220.8(h)(3)(viii)) on weighted averages

under alternate menu planning

approaches. Except for adding the date,

the proposed provisions are adopted, as

final. We are also adding the date at

§ 210.10(i)(5)(i) and § 220.8(e)(5)(i)

which provide the requirements for the

nutrient standard menu planning

approach.

In the preamble to the proposed

regulation, we requested comments on

the use of a weighted nutrient analysis

versus an unweighted method. We

received 27 comments on this issue

with eight commentors supporting the

use of weighted averages and 19

opposing some aspect of weighted

averages. As mentioned earlier, the

provision on weighting is temporarily

suspended. While we believe that

weighted averages may be one method

to reflect what students actually select

(which then results in more accurate

nutrient analysis), we are continuing to

assess the accuracy of both weighted

and unweighted averages as indicators

of how well the nutrition standards are

met.

What Was Proposed About the Use of

Approved Software for Alternate

Approaches That Used Nutrient

Analysis?

We also proposed that alternate

approaches use FNS approved software

as required by §§ 210.10(i)(4) and

220.8(e)(4). Software used for nutrient

analysis of school lunches and

breakfasts must meet the minimum

requirements established by FNS and

must incorporate the Child Nutrition

Database. Approved software is

designed to meet the needs of school

food service professionals and fulfills

two essential criteria—the ability to

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26911

perform all the requirements of the

regulations and the achievement of

uniform results. However, we did

propose to permit modification of this

criterion if an alternate menu planning

approach was developed by the State

agency which would remain an active

partner and was adopted by five or more

SFAs.

We received five comments on this

provision, all in opposition. We

continue to believe that the use of

approved software is vital to the

nutritional integrity of the programs and

that use of approved software (expect in

very limited circumstances) assures that

it meets the regulatory requirements.

Also, there are a number of approved

software packages available which

schools can select depending on their

specific needs. In those limited

situations where schools using an

alternate menu planning approach

would not be required to use approved

software, the State agency would be

available to provide a continual source

of guidance and expertise to assist

schools. Therefore, we are adopting this

guideline as proposed without changes

at § 210.10(l)(4)(viii) and

§ 220.8(h)(3)(viii).

What Clarifications Were Proposed

About Assessing Compliance With the

Nutrition Standards?

We proposed amendments to § 210.18

and § 210.19 to clarify that the existing

monitoring requirements apply to the

traditional food-based menu planning

approach. We also proposed some

technical amendments to modify the

terminology in § 210.18 and § 210.19.

These changes clarify that these

assessment and monitoring

requirements apply to all menu

planning approaches, including

alternate approaches developed by State

agencies or SFAs. We had no comments

on these changes. Therefore, the

amendments to § 210.18(b)(2)(ii), (g)(2),

and (i)(3)(ii) and to § 210.19(c)(6)(i) are

adopted as final without changes.

What Was Proposed About Adjusting

the Week Selected for the Nutrition

Assessment?

We proposed an adjustment to the

period of the nutrition assessments to

provide State agencies additional

flexibility in choosing a week to

evaluate. Currently, paragraphs (a)(1)(i)

and (ii) of § 210.19 stipulate that the

State agency must review the school’s

nutrition analysis or conduct an

independent analysis for the last

completed week prior to the assessment.

However, some State agencies told us

that for the administrative/CRE review

under § 210.18, they can select the

month prior to the month of the review

as the sample period. Consequently,

State agencies which elect to conduct

nutrition assessments concurrently with

CRE reviews will likely need to look at

two different review periods during the

same visit. To remedy this situation, we

proposed that reviewers could conduct

the nutrition standard assessment on

any week of the current school year

prior to the month of the review as long

as that week still represented the

current lunch or breakfast service.

We received 9 comments on this

proposal, all but one of them supported

the change. One commentor suggested

that we delete the wording about a week

‘‘prior to’’ to the month in which the

assessment is conducted. The

commentor felt this limited the reviewer

if s/he wanted to select a week in the

month of the review. We are adopting

this recommendation to provide

reviewers with additional flexibility. We

are making this modification to § 210.19

(a)(1)(i) but are otherwise adopting as

final the changes as proposed to this

paragraph.

What Was Proposed About the Extent of

Assessments?

We proposed that State agencies must

review at least one school for each type

of menu planning used by the SFA. We

also clarified that State agencies would

only need to do a nutrition assessment

on the lunch program unless the SFA

uses a particular menu planning

approach only for the breakfast program

or only participates in the SBP. We

received no comments on these

proposed changes, so they are adopted

at § 210.19(a)(1) as final without change.

What Was Proposed About Conforming

the CRE and Nutrition Assessment

Cycles?

We proposed a minor technical

amendment to § 210.19(a)(1)(i) to make

the cycle for nutrition assessments

consistent with the cycle for

administrative reviews under § 210.18.

Originally, we established a five-year

cycle for assessments of nutrition

compliance and intended that cycle to

run concurrently with the CRE cycle so

that those States electing to conduct

nutrition assessments at the same time

as administrative reviews could do so

efficiently. That first cycle began on July

1, 1996, unless the State agency

authorized a temporary waiver of

compliance with the nutrition

standards, in which case the first year

of the cycle could have begun as late as

July 1, 1998. Consequently, the first

five-year cycle would end as early as

June 30, 2001 or as late as June 30, 2003,

depending upon actual implementation.

The current CRE cycle ends on June 30,

1998, however, and the next cycle will

end on June 30, 2003. The two cycles

are then out of sequence for State

agencies which implement the

regulations before School Year 1998/

1999. We proposed a schedule to have

the two cycles coincide by establishing

an initial cycle of seven years for

nutrition assessments, from July 1, 1996

through June 30, 2003. Thereafter, the

cycles would be five years in length. We

received 13 comments on this proposed

provision, all but one of which

supported the change. Therefore, we are

adopting this proposal without change

at § 210.19(a)(1)(i).

What Technical Changes Were

Proposed?

We proposed to update references to

the 1990 Dietary Guidelines for

Americans to reflect the 1995 edition as

well as the minor word changes

between the two versions. We received

no comments on these changes, so they

are adopted as final at § 210.10(b) and

§ 220.8(a) and to the footnotes for the

tables in §§ 210.10(c), 210.10(d),

220.8(b), and 220.8(c).

We proposed to revise the name of the

database used in the nutrient analysis

software from the ‘‘National Nutrient

Database for the Child Nutrition

Programs’’ to the ‘‘Child Nutrition

Database.’’ We received no comments

on this and are adopting it as final at

§ 210.10(i) and § 220.8(e). We are also

deleting obsolete sections of §§ 210.10

and 220.8 (paragraphs (o) and (m),

respectively) as these refer to

implementation deadlines that have

passed. Sections 210.10a and 220.8a are

also deleted as the pertinent provisions

are now incorporated into §§ 210.10 and

220.8. As we received no comments on

these technical changes, they are all

adopted as final without change.

Please keep in mind, however, that

we did rewrite most of §§ 210.10 and

220.8 in plain language. We may have

reworded some of the proposed changes

for simplicity. We also conformed the

language for the traditional food-based

menu planning approach to the terms

used in the enhanced food-based menu

planning approach. We did not

intentionally revise the content of the

proposed or existing regulations. Please

note that we did not include the section

on supplemental foods (§ 210.10(n)) as

this section is being rewritten as a

separate rulemaking to incorporate the

recent expansion of the afterschool

snack service. However, in the interests

of plain language and in anticipation of

the regulations that will incorporate the

term, this regulation uses ‘‘afterschool

snack’’ in lieu of ‘‘meal supplement’’

26912 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(the currently used term) and clarifies

where requirements apply only to

lunches and breakfasts and those that

apply to all of the meal services

including the afterschool snack service.

Does This Final Rule Include Any

Additional Technical Changes?

Yes. This final rule designates a

previously undesignated paragraph in

§ 210.18(i)(3)(i). This is only a technical

amendment to conform our regulations

to the formatting requirements of the

Office of the Federal Register.

Executive Order 12866

This final rule has been determined to

be significant and was reviewed by the

Office of Management and Budget under

Executive Order 12866.

Public Law 104–4

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

FNS generally prepares a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local, or

tribal governments, in the aggregate, or

to the private sector, of $100 million or

more in any one year. When such a

statement is needed for a rule, section

205 of the UMRA generally requires

FNS to identify and consider a

reasonable number of regulatory

approaches and adopt the least costly,

more cost-effective or least burdensome

that achieves the objectives of the rule.

This final rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, and tribal governments or

the private sector of $100 million or

more in any one year. Thus, this final

rule is not subject to the requirements

of sections 202 and 205 of the UMRA.

Regulatory Flexibility Act

This final rule has been reviewed

with regard to the requirements of the

Regulatory Flexibility Act (5 U.S.C. 601

through 612). The Under Secretary for

Food, Nutrition and Consumer Services

has certified that this rule will not have

a significant economic impact on a

substantial number of small entities.

The Department of Agriculture (the

Department or USDA) does not

anticipate any adverse fiscal impact on

local schools as this rule expands the

number of approaches available to plan

menus for school lunches and

breakfasts.

Executive Order 12372

The NSLP and the SBP are listed in

the Catalog of Federal Domestic

Assistance under Nos. 10.555 and

10.553, respectively, and are subject to

the provisions of Executive Order

12372, which requires

intergovernmental consultation with

State and local officials. (7 CFR part

3015, subpart V and final rule-related

notice at 48 FR 29112, June 24, 1983.)

Executive Order 12988

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This final rule is

intended to have preemptive effect with

respect to any State or local laws,

regulations or policies which conflict

with its provisions or which would

otherwise impede its full

implementation. This final rule is not

intended to have retroactive effect

unless so specified in the EFFECTIVE

DATE section of this preamble. Prior to

any judicial challenge to the provisions

of this final rule or the application of

the provisions, all applicable

administrative procedures must be

exhausted. In the NSLP and SBP, the

administrative procedures are set forth

under the following regulations: (1) SFA

appeals of State agency findings as a

result of an administrative review must

follow State agency hearing procedures

as established pursuant to 7 CFR

210.18(q); (2) SFA appeals of FNS

findings as a result of an administrative

review must follow FNS hearing

procedures as established pursuant to 7

CFR 210.30(d)(3); and (3) State agency

appeals of State Administrative Expense

fund sanctions (7 CFR 235.11(b)) must

follow the FNS Administrative Review

Process as established pursuant to 7

CFR 235.11(f).

Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1995, 44 U.S.C. 3507,

the information reporting and

recordkeeping requirements included in

this final rule were reviewed by the

Office of Management and Budget

(OMB). OMB approved these

requirements for part 210 under control

number 0584–0006.

List of Subjects

7 CFR Part 210

Children, Commodity School

Program, Food assistance programs,

Grant programs-social programs,

National School Lunch Program,

Nutrition, Reporting and recordkeeping

requirements, Surplus agricultural

commodities.

7 CFR Part 220

Children, Food assistance programs,

Grant programs-social programs,

Nutrition, Reporting and recordkeeping

requirements, School Breakfast Program.

Accordingly, 7 CFR Parts 210 and 220

are amended as follows:

PART 210—NATIONAL SCHOOL

LUNCH PROGRAM

1. The authority citation for 7 CFR

part 210 continues to read as follows:

Authority: 42 U.S.C. 1751–1760, 1779.

2. In part 210, the words ‘‘or

§ 210.10a, whichever is applicable’’ are

removed wherever they appear in the

following places:

a. § 210.9(b)(5);

b. § 210.9(c)(1);

c. § 210.16(b)(1);

d. § 210.19(a)(3);

e. Appendix A to Part 210; and

f. Appendix C to Part 210.

3. In part 210, the words ‘‘or

§ 210.10a(b), whichever is applicable’’

are removed wherever they appear in

the following places:

a. § 210.7(c)(1)(v); and

b. § 210.15(b)(3).

4. In part 210, the words ‘‘or

§ 210.10a(j)(1), whichever is applicable’’

are removed wherever they appear in

the following places:

a. § 210.4(b)(3);

b. § 210.7(d); and

c. § 210.9(c), introductory text.

§ 210.2 [Amended].

4. In § 210.2:

a. The definition of ‘‘Food

component’’ is revised;

b. The definition of ‘‘Food item’’ is

revised;

c. The definition of ‘‘Lunch’’ is

revised; and

d. The definition of ‘‘Nutrient

Standard Menu Planning/Assisted

Nutrient Standard Menu Planning’’ is

revised.

The revisions read as follows:

§ 210.2 Definitions.

* * * * *

Food component means one of the

four food groups which comprise

reimbursable meals planned under a

food-based menu planning approach.

The four food components are: meat/

meat alternate; grains/breads; fruits/

vegetables; and milk.

Food item means one of the five foods

offered in lunches under a food-based

menu planning approach: meat/meat

alternate; grains/breads; two servings of

fruits/vegetables; and milk.

Lunch means a meal service that

meets the applicable nutrition standards

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26913

and portion sizes in § 210.10 for

lunches.

* * * * *

Nutrient Standard Menu Planning/

Assisted Nutrient Standard Menu

Planning means ways to develop lunch

menus based on the analysis for

nutrients in the menu items and foods

offered over a school week to determine

if specific levels for a set of key

nutrients and calories were met in

accordance with § 210.10(i)(5).

However, for the purposes of Assisted

Nutrient Standard Menu Planning,

lunch menu planning and analysis are

completed by other entities and must

incorporate the production quantities

needed to accommodate the specific

service requirements of a particular

school or school food authority in

accordance with § 210.10(j).

* * * * *

5. In § 210.10:

a. Paragraph (o) is removed;

b. Paragraphs (a) through (k) are

revised;

c. Paragraphs (l) and (m) are

redesignated as paragraphs (m) and (o),

respectively, and are revised; and

d. A new paragraph (l) is added.

The revisions and additions read as

follows:

§ 210.10 What are the nutrition standards

and menu planning approaches for lunches

and the requirements for afterschool

snacks?

(a) What are the general

requirements?

(1) General nutrition requirements.

Schools must provide nutritious and

well-balanced meals to all the children

they serve.

(i) Requirements for lunch. For

children age 2 or older, schools must

offer lunches that meet, at a minimum,

the nutrition standards in paragraph (b)

of this section. Compliance with the

nutrition standards and the appropriate

nutrient and calorie levels is determined

by averaging lunches planned to be

offered over a school week. Under any

menu planning approach, schools must

plan and produce at least enough food

to meet the appropriate calorie and

nutrient levels for the ages/grades of the

children in the school (see paragraphs

(c), (d), (i)(1) or (l) of this section,

depending on the menu planning

approach used). Also, if schools use one

of the food-based menu planning

approaches, they must plan and

produce at least enough food to offer

each child the minimum quantities

under the meal pattern (see paragraph

(k) of this section). Schools offering

lunches to infants must meet the meal

pattern requirements in paragraph (o) of

this section.

(ii) Requirements for afterschool

snacks. Schools offering afterschool

snacks in afterschool care programs

must meet the meal pattern

requirements in paragraph (n) of this

section. Schools must plan and produce

enough food to offer each child the

minimum quantities under the meal

pattern in paragraph (n) of this section.

The component requirements for meal

supplements served under the Child

and Adult Care Food Program

authorized under part 226 of this

chapter also apply to afterschool snacks

served in accordance with paragraph (n)

of this section.

(2) Unit pricing. Schools must price

each meal as a unit. Schools need to

consider participation trends in an effort

to provide one reimbursable lunch and,

if applicable, one reimbursable

afterschool snack for each child every

day. If there are leftover meals, schools

may offer them to the students but

cannot get reimbursement for them.

(3) Production and menu records.

Schools must keep production and

menu records for the meals they

produce. These records must show how

the meals contribute to the required

food components, food items or menu

items every day. In addition, for

lunches, these records must show how

the lunches contribute to the nutrition

standards in paragraph (b) of this

section and the appropriate calorie and

nutrient levels for the ages/grades of the

children in the school (see paragraphs

(c), (d), or (i)(1) or (l) of this section,

depending on the menu planning

approach used) over the school week. If

applicable, schools or school food

authorities must maintain nutritional

analysis records to demonstrate that

lunches meet, when averaged over each

school week:

(i) The nutrition standards provided

in paragraph (b) of this section; and

(ii) The nutrient and calorie levels for

children for each age or grade group in

accordance with paragraphs (c) or (i)(1)

of this section or developed under

paragraph (l) of this section.

(b) What are the specific nutrition

standards for lunches? Children age 2

and above must be offered lunches that

meet the following nutrition standards

for their age/grade group:

(1) Provision of one-third of the

Recommended Dietary Allowances

(RDAs) for protein, calcium, iron,

vitamin A and vitamin C in the

appropriate levels for the ages/grades

(see paragraphs (c), (d), (i)(1) or (l) of

this section, depending on the menu

planning approach used);

(2) Provision of the lunchtime energy

allowances (calories) in the appropriate

levels (see paragraphs (c), (d),(i)(1) or (l)

of this section, depending on the menu

planning approach used);

(3) These applicable

recommendations from the 1995 Dietary

Guidelines for Americans:

(i) Eat a variety of foods;

(ii) Limit total fat to 30 percent of total

calories;

(iii) Limit saturated fat to less than 10

percent of total calories;

(iv) Choose a diet low in cholesterol;

(v) Choose a diet with plenty of grain

products, vegetables, and fruits; and

(vi) Choose a diet moderate in salt and

sodium.

(4) These measures of compliance

with the applicable recommendations of

the 1995 Dietary Guidelines for

Americans:

(i) Limit the percent of calories from

total fat to 30 percent of the actual

number of calories offered;

(ii) Limit the percent of calories from

saturated fat to less than 10 percent of

the actual number of calories offered;

(iii) Reduce sodium and cholesterol

levels; and

(iv) Increase the level of dietary fiber.

(5) School food authorities have

several ways to plan menus. The

minimum levels of nutrients and

calories that lunches must offer depends

on the menu planning approach used

and the ages/grades served. The menu

planning approaches are:

(i) Nutrient standard menu planning

(see paragraphs (c) and (i) of this

section);

(ii) Assisted nutrient standard menu

planning (see paragraphs (c) and (j) of

this section);

(iii) Traditional food-based menu

planning (see paragraphs (d)(1) and (k)

of this section);

(iv) Enhanced food-based menu

planning (see paragraphs (d)(2) and (k)

of this section); or

(v) Alternate menu planning (see

paragraph (l) of this section).

(c) What are the levels for nutrients

and calories for lunches planned under

the nutrient standard or assisted

nutrient standard menu planning

approaches?

(1) Required levels. The required

levels are:

26914 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(2) Optional levels. Optional levels are:

(3) Customized levels. Schools may

also develop a set of nutrient and calorie

levels for a school week. These levels

are customized for the age groups of the

children in the particular school or

school food authority.

(d) What are the nutrient and calorie

levels for lunches planned under the

food-based menu planning approaches?

(1) Traditional approach. For the

traditional food-based menu planning

approach, the required levels are:

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26915

(2) Enhanced approach. For the enhanced food-based menu planning approach, the required levels are:

(e) Must schools offer choices at

lunch? FNS encourages schools to offer

children a selection of foods and menu

items at lunch. Choices provide variety

and encourage consumption. Schools

may offer choices of reimbursable

lunches or foods within a reimbursable

lunch. Children who are eligible for free

or reduced price lunches must be

allowed to take any reimbursable lunch

or any choices offered as part of a

reimbursable lunch. Schools may

establish different unit prices for each

lunch offered provided that the benefits

made available to children eligible for

free or reduced price lunches are not

affected.

(f) What are the requirements for

lunch periods?

(1) Timing. Schools must offer

lunches meeting the requirements of

this section during the period the school

has designated as the lunch period.

Schools must offer lunches between

10:00 a.m. and 2:00 p.m. Schools may

request an exemption from these times

only from FNS.

(2) Lunch periods for young children.

With State agency approval, schools are

encouraged to serve children ages one

through five over two service periods.

Schools may divide the quantities and/

or the menu items, foods, or food items

offered each time any way they wish.

(3) Adequate lunch periods. FNS

encourages schools to provide sufficient

lunch periods that are long enough to

give all students enough time to be

served and to eat their lunches.

(g) What exceptions and variations

are allowed in meals?

(1) Exceptions for medical or special

dietary needs. Schools must make

substitutions in lunches and afterschool

snacks for students who are considered

to have a disability under 7 CFR part

15b and whose disability restricts their

diet. Schools may also make

substitutions for students who do not

have a disability but who cannot

consume the regular lunch or

afterschool snack because of medical or

other special dietary needs.

Substitutions must be made on a case by

case basis only when supported by a

statement of the need for substitutions

that includes recommended alternate

foods, unless otherwise exempted by

FNS. Such statement must, in the case

of a student with a disability, be signed

by a physician or, in the case of a

26916 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

student who is not disabled, by a

recognized medical authority.

(2) Variations for ethnic, religious, or

economic reasons. Schools should

consider ethnic and religious

preferences when planning and

preparing meals. Variations on an

experimental or continuing basis in the

food components for the food-based

menu planning approaches in

paragraphs (k) or (n) of this section may

be allowed by FNS. Any variations must

be nutritionally sound and needed to

meet ethnic, religious, or economic

needs.

(3) Exceptions for natural disasters. If

there is a natural disaster or other

catastrophe, FNS may temporarily allow

schools to serve meals for

reimbursement that do not meet the

requirements in this section.

(h) What should schools do about

nutrition disclosure? FNS encourages

schools to inform the students, parents,

and the public about efforts they are

making to meet the nutrition standards

(see paragraph (b) of this section) for

school lunches.

(i) What are the requirements for

lunches under the nutrient standard

menu planning approach?

(1) Nutrient levels.

(i) Adjusting nutrient levels for young

children. Schools with children who are

age 2 must at least meet the nutrition

standards in paragraph (b) of this

section and the preschool nutrient and

calorie levels in paragraph (c)(1) of this

section over a school week. Schools may

also use the preschool nutrient and

calorie levels in paragraph (c)(2) of this

section or may calculate nutrient and

calorie levels for two year olds. FNS has

a method for calculating these levels in

guidance materials for menu planning.

(ii) Minimum levels for nutrients.

Lunches must at least offer the nutrient

and calorie levels for the required grade

groups in the table in paragraph (c)(1) of

this section. Schools may also offer

lunches meeting the nutrient and calorie

levels for the age groups in paragraph

(c)(2) of this section. If only one grade

or age group is outside either of these

established levels, schools may follow

the levels for the majority of the

children. Schools may also customize

the nutrient and calorie levels for the

children they serve. FNS has a method

for calculating these levels in guidance

materials for menu planning.

(2) Reimbursable lunches.

(i) Contents of a reimbursable lunch.

A reimbursable lunch must include at

least three menu items. One of those

menu items must be an entree, and one

must be fluid milk as a beverage. An

entree is a combination of foods or is a

single food item offered as the main

course. All menu items or foods offered

in a reimbursable lunch contribute to

the nutrition standards in paragraph (b)

of this section and to the levels of

nutrients and calories that must be met

in paragraphs (c) or (i)(1) of this section.

Unless offered as part of a menu item in

a reimbursable lunch, foods of minimal

nutritional value (see appendix B to part

210) are not included in the nutrient

analysis. Reimbursable lunches planned

under the nutrient standard menu

planning approach must meet the

nutrition standards in paragraph (b) of

this section and the appropriate nutrient

and calorie levels in either paragraph (c)

or paragraph (i)(1) of this section.

(ii) Offer versus serve. Schools must

offer at least three menu items for

lunches. Senior high (as defined by the

State educational agency) school

students must select at least two menu

items and are allowed to decline a

maximum of two menu items. The

student must always take the entree.

The price of a reimbursable lunch does

not change if the student does not take

a menu item or requests smaller

portions. At the discretion of the school

food authority, students below the

senior high level may also participate in

offer versus serve.

(3) Doing the analysis. Schools using

nutrient standard menu planning must

conduct the analysis on all menu items

and foods offered in a reimbursable

lunch. The analysis is conducted over a

school week. Unless offered as part of a

menu item in a reimbursable lunch,

foods of minimal nutritional value (see

appendix B to part 210) are not included

in the nutrient analysis.

(4) Software elements.

(i) The Child Nutrition Database. The

nutrient analysis is based on the Child

Nutrition Database. This database is part

of the software used to do a nutrient

analysis. Software companies or others

developing systems for schools may

contact FNS for more information about

the database.

(ii) Software evaluation. FNS or an

FNS designee evaluates any nutrient

analysis software before it may be used

in schools. FNS or its designee

determines if the software, as submitted,

meets the minimum requirements. The

approval of software does not mean that

FNS or USDA endorses it. The software

must be able to do all functions after the

basic data is entered. The required

functions include weighted averages

and the optional combined analysis of

the lunch and breakfast programs.

(5) Nutrient analysis procedures.

(i) Weighted averages. Schools must

include all menu items and foods

offered in reimbursable lunches in the

nutrient analysis. Menu items and foods

are included based on the portion sizes

and projected serving amounts. They are

also weighted based on their

proportionate contribution to the

lunches offered. This means that menu

items or foods more frequently offered

are weighted more heavily than those

not offered as frequently. Schools

calculate weighting as indicated by FNS

guidance and by the guidance provided

by the software. Through September 30,

2003, schools are not required to

conduct a weighted analysis.

(ii) Analyzed nutrients. The analysis

includes all menu items and foods

offered over a school week. The analysis

must determine the levels of: Calories,

protein, vitamin A, vitamin C, iron,

calcium, total fat, saturated fat, sodium,

cholesterol and dietary fiber.

(iii) Combining the analysis of the

lunch and breakfast programs. At their

option, schools may combine the

analysis of lunches offered under this

part and breakfasts offered under part

220 of this Chapter. The analysis is done

proportionately to the levels of

participation in each program based on

FNS guidance.

(6) Comparing the results of the

nutrient analysis. Once the procedures

in paragraph (i)(5) of this section are

completed, schools must compare the

results of the analysis to the appropriate

nutrient and calorie levels, by age/grade

groups, in paragraph (c) of this section

or those developed under paragraph

(i)(1) of this section. This comparison

determines the school week’s average.

Schools must also make comparisons to

the nutrition standards in paragraph (b)

of this section to determine how well

they are meeting the nutrition standards

over the school week.

(7) Adjustments to the menus. Once

schools know the results of the nutrient

analysis based on the procedures in

paragraphs (i)(5) and (i)(6) of this

section, they must adjust future menu

cycles to reflect production and how

often the menu items and foods are

offered. Schools may need to reanalyze

menus when the students’ selections

change and, consequently, production

levels change. Schools may need to

change the menu items and foods

offered given the students’ selections

and may need to modify the recipes and

other specifications to make sure that

the nutrition standards in paragraph (b)

and either paragraphs (c) or (i)(1) of this

section are met.

(8) Standardized recipes. If a school

follows the nutrient standard menu

planning approach, it must develop and

follow standardized recipes. A

standardized recipe is a recipe that was

tested to provide an established yield

and quantity using the same ingredients

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26917

for both measurement and preparation

methods. Any standardized recipes

developed by USDA/FNS are in the

Child Nutrition Database. If a school has

its own recipes, they must be

standardized and analyzed to determine

the levels of calories, nutrients, and

dietary components listed in paragraph

(i)(5)(ii) of this section. Schools must

add any local recipes to their local

database as outlined in FNS guidance.

(9) Processed foods. The Child

Nutrition Database includes a number of

processed foods. Schools may use

purchased processed foods and menu

items that are not in the Child Nutrition

Database. Schools or the State agency

must add any locally purchased

processed foods and menu items to their

local database as outlined in FNS

guidance. Schools or the State agency

must obtain the levels of calories,

nutrients, and dietary components listed

in paragraph (i)(5)(ii) of this section.

(10) Menu substitutions. Schools may

need to substitute foods or menu items

in a menu that was already analyzed. If

the substitution(s) occurs more than two

weeks before the planned menu is

served, the school must reanalyze the

revised menu. If the substitution(s)

occurs two weeks or less before the

planned menu is served, the school does

not need to do a reanalysis. However,

schools should always try to substitute

similar foods.

(11) Meeting the nutrition standards.

The school’s analysis shows whether

their menus are meeting the nutrition

standards in paragraph (b) of this

section and the appropriate levels of

nutrients and calories in paragraph (c)

of this section or customized levels

developed under paragraph (i)(1) of this

section. If the analysis shows that the

menu(s) are not meeting these

standards, the school needs to take

action to make sure that the lunches

meet the nutrition standards and the

calorie, nutrient, and dietary component

levels. Actions may include technical

assistance and training and may be

taken by the State agency, the school

food authority or by the school as

needed.

(12) Other Child Nutrition Programs

and nutrient standard menu planning.

School food authorities that operate the

Summer Food Service Program (part 225

of this chapter) and/or the Child and

Adult Care Food Program (part 226 of

this chapter) may, with State agency

approval, prepare lunches for these

programs using the nutrient standard

menu planning approach for children

age two and over. FNS has guidance on

the levels of nutrients and calories for

adult lunches under the Child and

Adult Care Food Program. However,

afterschool snacks continue to use the

appropriate program’s meal pattern.

(j) What are the requirements for

lunches under the assisted nutrient

standard menu planning approach? (1)

Definition of assisted nutrient standard

menu planning. Some school food

authorities may not be able to do all of

the procedures necessary for nutrient

standard menu planning. The assisted

nutrient standard menu planning

approach provides schools with menu

cycles developed and analyzed by other

sources. These sources include the State

agency, other school food authorities,

consultants, or food service

management companies.

(2) Elements of assisted nutrient

standard menu planning. School food

authorities using menu cycles

developed under assisted nutrient

standard menu planning must follow

the procedures in paragraphs (i)(1)

through (i)(10) of this section. The menu

cycles must also incorporate local food

preferences and accommodate local

food service operations. The menus

cycles must meet the nutrition

standards in paragraph (b) of this

section and meet the nutrient and

calorie levels for nutrient standard

menu planning in paragraph (c) or

paragraph (i)(1) of this section. The

supplier of the assisted nutrient

standard menu planning approach must

also develop and provide recipes, food

product specifications, and preparation

techniques. All of these components

support the nutrient analysis results of

the menus cycles used by the receiving

school food authorities.

(3) State agency approval. Prior to its

use, the State agency must approve the

initial menu cycle, recipes and other

specifications of the assisted nutrient

standard menu planning approach. The

State agency needs to ensure that all the

steps required for nutrient analysis were

followed. School food authorities may

also ask the State agency for assistance

with implementation of their assisted

nutrient standard menu planning

approach.

(4) Required adjustments. After the

initial service of the menu cycle

developed under the assisted nutrient

standard menu planning approach, the

nutrient analysis must be reassessed and

appropriate adjustments made as

discussed in paragraph (i)(7) of this

section.

(5) Final responsibility for meeting the

nutrition standards. The school food

authority using the assisted nutrient

standard menu planning approach

retains responsibility for meeting the

nutrition standards in paragraph (b) of

this section and the calorie and nutrient

levels in paragraph (c) or paragraph

(i)(1) of this section.

(6) Adjustments to the menus. If the

nutrient analysis shows that the lunches

offered are not meeting the nutrition

standards in paragraph (b) of this

section and the calorie and nutrient

levels in paragraph (c) or paragraph

(i)(1) of this section, the State agency,

school food authority or school must

take action to make sure the lunches

offered meet these requirements.

Actions needed include technical

assistance and training.

(7) Other Child Nutrition Programs

and assisted nutrient standard menu

planning. School food authorities that

operate the Summer Food Service

Program (part 225 of this chapter) and/

or the Child and Adult Care Food

Program (part 226 of this chapter) may,

with State agency approval, prepare

lunches for these programs using the

assisted nutrient standard menu

planning approach for children age two

and over. FNS has guidance on the

levels of nutrients and calories for adult

lunches under the Child and Adult Care

Food Program. However, afterschool

snacks continue to use the appropriate

program’s meal pattern.

(k) What are the requirements for

lunches under the food-based menu

planning approaches? There are two

menu planning approaches based on

meal patterns, not nutrient analysis.

These approaches are the traditional

food-based menu planning approach

and the enhanced food-based menu

planning approach. Schools using one

of these approaches offer food

components in at least the minimum

quantities required for the various grade

groups.

(1) Quantities for the traditional foodbased menu planning approach. (i)

Minimum quantities. At a minimum,

schools must offer five food items in the

quantities in the following table:

26918 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(ii) Use of Group IV quantities.

Schools that are able to provide

quantities of food to children solely on

the basis of their ages or grade level

should do so. Schools that cannot serve

children on the basis of age or grade

level must provide all school age

children Group IV portions as specified

in the table in paragraph (k)(1)(i) of this

section. Schools serving children on the

basis of age or grade level must plan and

produce sufficient quantities of food to

provide Groups I-IV no less than the

amounts specified for those children in

the table in paragraph (k)(1)(i) of this

section, and sufficient quantities of food

to provide Group V no less than the

specified amounts for Group IV. FNS

recommends that schools plan and

produce sufficient quantities of food to

provide Group V children the larger

amounts specified in the table in

paragraph (k)(1)(i) of this section.

Schools that provide increased portion

sizes for Group V may comply with

children’s requests for smaller portion

sizes of the food items; however,

schools must plan and produce

sufficient quantities of food to at least

provide the serving sizes required for

Group IV. Schools must ensure that

lunches are served with the objective of

providing the per lunch minimums for

each age and grade level as specified in

the table in paragraph (k)(1)(i) of this

section.

(2) Quantities for the enhanced foodbased menu planning approach.

Schools must at least offer five food

items in the quantities in the following

table:

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26919

(3) Requirements for the meat/meat

alternate component. The quantity of

the meat/meat alternate component

must be the edible portion as served. If

the portion size of a food item for this

component is excessive, the school must

reduce that portion and supplement it

with another meat/meat alternate to

meet the full requirement. This

component must be served in a main

dish or in a main dish and only one

other food item. Schools without daily

choices in this component should not

serve any one meat alternate or form of

meat (for example, ground, diced,

pieces) more than three times in the

same week.

(i) Enriched macaroni. Enriched

macaroni with fortified protein as

defined in appendix A to this part may

be used to meet part of the meat/meat

alternate requirement when used as

specified in appendix A to this part. An

enriched macaroni product with

fortified protein as defined in appendix

A to this part may be used to meet part

of the meat/meat alternate component or

the grains/breads component but not as

both food components in the same

lunch.

(ii) Nuts and seeds. Nuts and seeds

and their butters are allowed as meat

alternates in accordance with program

guidance. Acorns, chestnuts, and

coconuts must not be used because of

their low protein and iron content. Nut

and seed meals or flours may be used

only as allowed under appendix A to

this part. Nuts or seeds may be used to

meet no more than one-half of the meat/

meat alternate component with another

meat/meat alternate to meet the full

requirement.

(iii) Yogurt. Yogurt may be used to

meet all or part of the meat/meat

alternate requirement. Yogurt may be

either plain or flavored, unsweetened or

sweetened. Noncommercial and/or

nonstandardized yogurt products, such

as frozen yogurt, homemade yogurt,

yogurt flavored products, yogurt bars,

yogurt covered fruit and/or nuts or

similar products are not creditable. Four

ounces (weight) or 1⁄2 cup (volume) of

yogurt equals one ounce of the meat/

meat alternate requirement.

(4) Requirements for the vegetable/

fruit component.

(i) General. Full strength vegetable or

fruit juice may be used to meet no more

than one-half of the vegetable/fruit

requirement. Cooked dry beans or peas

may be counted as either a vegetable or

as a meat alternate but not as both in the

same meal.

(ii) Minimum quantities for the

enhanced food-based menu planning.

Under the enhanced food-based menu

planning approach, children in

kindergarten through grade six are

offered vegetables/fruits in minimum

daily servings plus an additional onehalf cup in any combination over a five

day period.

26920 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(5) Requirements for the grains/breads

component.

(i) Enriched or whole grains. All

grains/breads must be enriched or

whole grain or made with enriched or

whole grain meal or flour.

(ii) Daily and weekly servings. The

requirement for the grain/bread

component is based on minimum daily

servings plus total servings over a five

day period. Schools serving lunch 6 or

7 days per week should increase the

weekly quantity by approximately 20

percent (1⁄5th) for each additional day.

When schools operate less than 5 days

per week, they may decrease the weekly

quantity by approximately 20 percent

(1⁄5th) for each day less than five. The

servings for biscuits, rolls, muffins, and

other grain/bread varieties are specified

in the Food Buying Guide for Child

Nutrition Programs (PA 1331), an FNS

publication.

(iii) Minimums under the traditional

food-based menu planning approach.

Schools must offer at least one-half

serving of the grain/bread component to

children in Group I and at least one

serving to children in Groups II–V daily.

Schools which serve lunch at least 5

days a week shall serve a total of at least

five servings of grains/breads to

children in Group I and eight servings

per week to children in Groups II–V.

(iv) Desserts under the enhanced

food-based menu planning approach.

Under the enhanced food-based menu

planning approach, schools may count

up to one grain-based dessert per day for

children in grades K–12 towards

meeting the grains/breads component.

(6) Offer versus serve. Schools must

offer all five required food items. Senior

high (as defined by the State

educational agency) school students

may decline up to two of the five food

items. At the school food authority’s

option, students below senior high may

decline one or two of the five food

items. The price of a reimbursable lunch

does not change if the student does not

take a menu item or requests smaller

portions.

(7) Meal pattern exceptions for

outlying areas. Schools in American

Samoa, Puerto Rico and the Virgin

Islands may serve a starchy vegetable

such as yams, plantains, or sweet

potatoes to meet the grain/bread

requirement.

(l) What are the requirements for

lunches planned using an alternate

menu planning approach?

(1) Definition. Alternate menu

planning approaches are those adopted

or developed by school food authorities

or State agencies that differ from the

standard approaches established in

paragraphs (i) through (k) of this

section. There are two types of alternate

approaches. First, there are specific

modifications provided in paragraph

(l)(2) of this section. Second, there are

major changes to the standard menu

planning approaches or new menu

planning approaches developed by

school food authorities or State agencies

(see paragraph (l)(3) of this section).

(2) Use of modifications. There are

three modifications available to schools

using one of the food-based menu

planning approaches for lunches. State

agencies may or may not require prior

approval or may establish guidelines for

using these modifications.

(i) Modification to the meat/meat

alternate component. The required

minimum quantities of the meat/meat

alternate component in the food-based

menu planning approaches may be

offered as a weekly total with a one

ounce (or its equivalent for certain meat

alternates) minimum daily serving size.

This modification does not apply if the

minimum serving of meat/meat

alternate is less than one ounce.

(ii) Modification to age/grade groups

under the traditional food-based menu

planning approach. Schools using the

traditional food-based menu planning

approach may:

(A) For children in grades K–6, use

the portion sizes in Group IV in the

table in paragraph (k)(1) of this section

and follow the nutrient levels for

children in grades K–6 in paragraphs

(c)(1) and (d)(2) of this section; and/or

(B) For children in grades 7–12, use

the portion sizes in Group IV in the

table in paragraph (k)(1) of this section

and follow the nutrient levels for

children in grades 7–12 in paragraphs

(c)(1) and (d)(2) of this section.

(iii) Modification for the majority of

children. Under the traditional or

enhanced food-based menu planning

approaches, if only one age or grade is

outside the established levels, schools

may follow the levels for the majority of

children for both quantities (see

paragraph (k)) and the nutrition

standards in paragraphs (b) and (d) of

this section.

(3) Use and approval of major

changes or new alternate approaches.

Within the guidelines established for

developing alternate menu planning

approaches, school food authorities or

State agencies may modify one of the

established menu planning approaches

in paragraphs (i) through (k) of this

section or may develop their own menu

planning approach. The alternate menu

planning approach must be available in

writing for review and monitoring

purposes. No formal plan is required;

guidance material, a handbook or

protocol is sufficient. As appropriate,

the material must address how the

guidelines in paragraph (l)(4) of this

section are met. A State agency that

develops an alternate approach that is

exempt from FNS approval under

paragraph (l)(3)(iii) of this section must

notify FNS in writing when

implementing the alternate approach.

(i) Approval of local level approaches.

Any school food authority-developed

menu planning approach must have

prior State agency review and approval.

(ii) Approval of State agency

approaches. Unless exempt under

paragraph (l)(3)(iii) of this section, any

State agency-developed menu planning

approach must have prior FNS

approval.

(iii) State agency approaches not

subject to approval. A State agencydeveloped menu planning approach

does not need FNS approval if:

(A) Five or more school food

authorities in the State use it; and

(B) The State agency maintains ongoing oversight of the operation and

evaluation of the approach and makes

any needed adjustments to its policies

and procedures to ensure that the

appropriate guidelines of paragraph

(l)(4) of this section are met.

(4) Elements for major changes or new

approaches. Any alternate menu

planning approach must:

(i) Offer fluid milk, as provided in

paragraph (m) of this section;

(ii) Include offer versus serve for

senior high students. Alternate menu

planning approaches should follow the

offer versus serve procedures in

paragraphs (i)(2)(ii) and (k)(6) of this

section, as appropriate. If these

requirements are not followed, the plan

must indicate:

(A) The affected age/grade groups;

(B) The number and type of items

(and, if applicable, the quantities for the

items) that constitute a reimbursable

lunch under offer versus serve;

(C) How such procedures will reduce

plate waste; and

(D) How a reasonable level of calories

and nutrients for the lunch as taken is

provided;

(iii) Meet the Recommended Dietary

Allowances and lunchtime energy

allowances (nutrient levels) and

indicate the age/grade groups served

and how the nutrient levels are met for

those age/grade groups;

(iv) Follow the requirements for

competitive foods in § 210.11 and

appendix B to this part;

(v) Follow the requirements for

counting food items and products

towards the meal patterns. These

requirements are found in paragraphs

(k)(3) through (k)(5) and paragraph (m)

of this section, in appendices A through

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26921

C to this part, and in instructions and

guidance issued by FNS. This only

applies if the alternate approach is a

food-based menu planning approach;

(vi) Identify a reimbursable lunch at

the point of service;

(A) To the extent possible, the

procedures provided in paragraph

(i)(2)(i) of this section for the nutrient

standard or assisted nutrient standard

menu planning approaches or for foodbased menu planning approaches

provided in paragraph (k) of this section

must be followed. Any instructions or

guidance issued by FNS that further

defines the elements of a reimbursable

lunch must be followed when using the

existing regulatory provisions.

(B) Any alternate approach that

deviates from the provisions in

paragraph (i)(2)(i) or paragraph (k) of

this section must indicate what

constitutes a reimbursable lunch,

including the number and type of items

(and, if applicable, the quantities for the

items) which comprise the lunch, and

how a reimbursable lunch is to be

identified at the point of service;

(vii) Explain how the alternate menu

planning approach can be monitored

under the applicable provisions of

§ 210.18 and § 210.19, including a

description of the records that will be

maintained to document compliance

with the program’s administrative and

nutrition requirements. However, if the

procedures under § 210.19 cannot be

used to monitor the alternate approach,

a description of procedures which will

enable the State agency to assess

compliance with the nutrition standards

in paragraphs (b)(1) through (b)(4) of

this section must be included; and

(viii) Follow the requirements for

weighted analysis and for approved

software for nutrient standard menu

planning approaches as required by

paragraphs (i)(4) and (i)(5) of this

section unless a State agency-developed

approach meets the criteria in paragraph

(l)(3)(iii) of this section. Through

September 30, 2003, schools are not

required to conduct a weighted analysis.

(m) What are the requirements for

offering milk?

(1) Types of milk. (i) Under all menu

planning approaches for lunches,

schools must offer students fluid milk.

The types of milk offered must be

consistent with the types of milk

consumed in the previous year.

However, if a particular type of milk

constituted less than one percent (1%)

of the total amount of milk consumed in

the previous year, a school does not

need to offer this type of milk. This does

not preclude schools from offering

additional types of milk.

(ii) All milk served in the Program

must be pasteurized fluid milk which

meets State and local standards for such

milk. However, infants under 1 year of

age must be served breast milk or ironfortified infant formula. All milk must

have vitamins A and D at levels

specified by the Food and Drug

Administration and must be consistent

with State and local standards for such

milk.

(2) Inadequate milk supply. If a school

cannot get a supply of milk, it can still

participate in the Program under the

following conditions:

(i) If emergency conditions

temporarily prevent a school that

normally has a supply of fluid milk

from obtaining delivery of such milk,

the State agency may allow the school

to serve meals during the emergency

period with an alternate form of milk or

without milk.

(ii) If a school is unable to obtain a

supply of any type of fluid milk on a

continuing basis, the State agency may

approve the service of meals without

fluid milk if the school uses an

equivalent amount of canned milk or

dry milk in the preparation of the meals.

In Alaska, Hawaii, American Samoa,

Guam, Puerto Rico, and the Virgin

Islands, if a sufficient supply of fluid

milk cannot be obtained, ‘‘milk’’

includes reconstituted or recombined

milk, or as otherwise allowed by FNS

through a written exception.

* * * * *

(o) What are the requirements for the

infant lunch pattern?

(1) Definitions. (i) Infant cereal means

any iron-fortified dry cereal especially

formulated and generally recognized as

cereal for infants which is routinely

mixed with breast milk or iron-fortified

infant formula prior to consumption.

(ii) Infant formula means any ironfortified formula intended for dietary

use solely as a food for normal, healthy

infants. Formulas specifically

formulated for infants with inborn

errors of metabolism or digestive or

absorptive problems are not included in

this definition. Infant formula, when

served, must be in liquid state at

recommended dilution.

(2) Requirements for lunches for

infants under the age of one. Infants

under 1 year of age must be served an

infant lunch as specified in this

paragraph (o). Foods served in the infant

lunch pattern must be of a texture and

consistency appropriate for the

particular age group served. Foods must

be served to the infant during a span of

time consistent with the infant’s eating

habits. For infants 4 through 7 months

of age, solid foods are optional and

should be introduced only when the

infant is developmentally ready.

Whenever possible, the school should

consult with the infant’s parents in

making the decision to introduce solid

foods. Solid foods should be introduced

one at a time on a gradual basis with the

intent of ensuring health and nutritional

well-being. For infants 8 through 11

months of age, the total amount of food

in the meal patterns in paragraph

(o)(2)(iii) of this section must be

provided to qualify for reimbursement.

Additional foods may be served to

infants 4 months of age and older with

the intent of improving their overall

nutrition. Breast milk, provided by the

infant’s mother, may be served in place

of infant formula from birth through 11

months of age. Either breast milk or

iron-fortified infant formula must be

served for the entire first year. For some

breastfed infants who regularly consume

less than the minimum amount of breast

milk per feeding, a serving of less than

the minimum amount of breast milk

may be offered with additional ounces

offered if the infant is still hungry. The

infant lunch pattern must have at least

each of the following components in the

amounts indicated for the appropriate

age group:

(i) Birth through 3 months—4 to 6

fluid ounces of breast milk or ironfortified infant formula.

(ii) 4 through 7 months:

(A) 4 to 8 fluid ounces of breast milk

or iron-fortified infant formula;

(B) 0 to 3 tablespoons of iron-fortified

dry infant cereal (optional); and

(C) 0 to 3 tablespoons of fruit or

vegetable of appropriate consistency or

a combination of both (optional).

(iii) 8 through 11 months:

(A) 6 to 8 fluid ounces of breast milk

or iron-fortified infant formula;

(B) 2 to 4 tablespoons of iron-fortified

dry infant cereal and/or 1 to 4

tablespoons of meat, fish, poultry, egg

yolk, or cooked dry beans or peas, or 1⁄2

to 2 ounces (weight) of cheese or 1 to

4 ounces (weight or volume) of cottage

cheese, cheese food or cheese spread of

appropriate consistency; and

(C) 1 to 4 tablespoons of fruit or

vegetable of appropriate consistency or

a combination of both.

26922 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

§ 210.10a [Removed]

6. Section 210.10a is removed.

§ 210.15 [Amended]

7. In section 210.15, paragraph (b)(2)

is amended by removing the words

‘‘menu records as required under

§ 210.10a and production and’’.

§ 210.18 [Amended]

8. In section 210.18:

a. Paragraph (b)(2)(ii) is revised;

b. Paragraph (g)(2) is revised;

c. The first sentence of paragraph

(h)(2) is revised;

d. Paragraph (i)(3) is amended by

designating the undesignated paragraph

following paragraph (i)(3)(i)(B) as

paragraph (i)(3)(i)(C); and

e. Paragraph (i)(3)(ii) is revised.

The revisions read as follows:

§ 210.18. Administrative reviews.

* * * * *

(b) Definitions. ***

(2) * * *

(ii) Performance Standard 2—Meal

Elements. Lunches claimed for

reimbursement within the school food

authority contain meal elements (food

items/components, menu items or other

items, as applicable) as required under

§ 210.10.

* * * * *

(g) Critical areas of review. ***

(2) Performance Standard 2 (Lunches

claimed for reimbursement within the

school food authority contain meal

elements (food items/components, menu

items or other items, as applicable) as

required under § 210.10. For each

school reviewed, the State agency must:

(i) For the day of the review, observe

the serving line(s) to determine whether

all required meal elements (food items/

components, menu items or other items,

as applicable) as required under

§ 210.10 are offered.

(ii) For the day of the review, observe

a significant number of the Program

lunches counted at the point of service

for each type of serving line, to

determine whether those lunches

contain the required number of meal

elements (food items/components,

menu items or other items, as

applicable) as required under § 210.10.

(iii) Review menu records for the

review period to determine whether all

required meal elements (food items/

components, menu items or other items,

as applicable) as required under

§ 210.10 have been offered.

(h) General areas of review. ***

(2) Food quantities. For each school

reviewed, the State agency must observe

a significant number of Program lunches

counted at the point of service for each

type of serving line to determine

whether those lunches appear to

provide meal elements (food items/

components, menu items or other items,

as applicable) in the quantities required

under § 210.10. * * *

* * * * *

(i) Follow-up reviews. ***

(3) Review thresholds. ***

(ii) For Performance Standard 2—10

percent or more of the total number of

Program lunches observed in a school

food authority are missing one or more

of the required meal elements (food

items/components, menu items or other

items, as applicable) as required under

§ 210.10.

* * * * *

9. In § 210.19:

a. Redesignate paragraph (a)(1)

introductory text, paragraphs (a)(1)(i),

(a)(1)(ii), (a)(1)(iii), and (a)(1)(iv) as

paragraphs (a)(1)(i), (a)(1)(iii), (a)(1)(iv),

(a)(1)(v), and (a)(1)(vii), respectively,

and add new paragraphs (a)(1)(ii) and

(a)(1)(vi);

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26923

b. Revise newly redesignated

paragraph (a)(1)(i);

c. Revise the first sentence in newly

redesignated paragraph (a)(1)(iii);

d. Revise newly redesignated

paragraph (a)(1)(iv); and

e. Revise paragraph (c)(6)(i).

The additions and revisions read as

follows:

§ 210.19 Additional responsibilities.

(a) General Program management.

***

(1) Compliance with nutrition

standards. (i) Beginning with School

Year 1996–1997, State agencies shall

evaluate compliance, over the school

week, with the nutrition standards for

lunches and, as applicable, for

breakfasts. Review activity may be

confined to lunches served under the

Program unless a menu planning

approach is used exclusively in the

School Breakfast Program or unless the

school food authority only offers

breakfasts under the School Breakfast

Program. For lunches, compliance with

the requirements in § 210.10(b) and

§ 210.10(c), (d), or (i)(1) or the

procedures developed under § 210.10(l),

as applicable, is assessed. For

breakfasts, see § 220.13(f)(3) of this

chapter.

(A) These evaluations may be

conducted at the same time a school

food authority is scheduled for an

administrative review in accordance

with § 210.18. State agencies may also

conduct these evaluations in

conjunction with technical assistance

visits, other reviews, or separately.

(B) The type of evaluation conducted

by the State agency shall be determined

by the menu planning approach chosen

by the school food authority. At a

minimum, the State agency shall review

at least one school for each type of

menu planning approach used in the

school food authority.

(C) In addition, State agencies are

encouraged to review breakfasts offered

under the School Breakfast Program as

well if the school food authority

requires technical assistance from the

State agency to meet the nutrition

standards or if corrective action is

needed. Such review shall determine

compliance with the appropriate

requirements in § 220.13(f)(3) of this

chapter and may be done at the time of

the initial review or as part of a followup to assess compliance with the

nutrition standards.

(ii) At a minimum, State agencies

shall conduct evaluations of compliance

with the nutrition standards in § 210.10

and § 220.8 of this Chapter at least once

during each 5-year review cycle

provided that each school food

authority is evaluated at least once

every 6 years, except that the first cycle

shall begin July 1, 1996, and shall end

on June 30, 2003. The compliance

evaluation for the nutrition standards

shall be conducted on the menu for any

week of the current school year in

which such evaluation is conducted.

The week selected must continue to

represent the current menu planning

approach(es).

(iii) For school food authorities

choosing the nutrient standard or

assisted nutrient standard menu

planning approaches provided in

§ 210.10(i), § 210.10(j), § 220.8(e) or

§ 220.8(f) of this chapter, or developed

under the procedures in § 210.10(l) or

§ 220.8(h) of this chapter, the State

agency shall assess the nutrient analysis

to determine if the school food authority

is properly applying the methodology in

these paragraphs, as applicable. * * *

(iv) For school food authorities

choosing the food-based menu planning

approaches provided in § 210.10(k) or

§ 220.8(g) of this chapter or developed

under the procedures in § 210.10(l) or

§ 220.8(h) of this chapter, the State

agency must determine if the nutrition

standards in § 210.10 and § 220.8 of this

chapter are met. The State agency shall

conduct a nutrient analysis in

accordance with the procedures in

§ 210.10(i) or § 220.8(e) of this chapter,

as appropriate, except that the State

agency may:

(A) Use the nutrient analysis of any

school or school food authority that

offers lunches or breakfasts using the

food-based menu planning approaches

provided in § 210.10(k) and § 220.8(g) of

this chapter and that conducts its own

nutrient analysis under the criteria for

such analysis established in § 210.10

and § 220.8 of this chapter for the

nutrient standard and assisted nutrient

standard menu planning approaches; or

(B) Develop its own method for

compliance reviews, subject to USDA

approval.

* * * * *

(vi) For school food authorities

following an alternate approach as

provided under § 210.10(l) or § 220.8(h)

of this chapter that does not allow for

use of the monitoring procedures in

paragraphs (a)(1)(ii) or (a)(1)(iii) of this

section, the State agency shall monitor

compliance following the procedures

developed in accordance with

§ 210.10(l) or § 220.8(h) of this chapter,

whichever is appropriate.

* * * * *

(c) Fiscal action. ***

(6) Exceptions. ***

(i) when any review or audit reveals

that a school food authority is failing to

meet the quantities for each meal

element (food item/component, menu

item or other items, as applicable) as

required under § 210.10.

* * * * *

PART 220—SCHOOL BREAKFAST

PROGRAM

1. The authority citation continues to

read as follows:

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

otherwise noted.

2. In part 220, the words ‘‘or § 220.8a,

whichever is applicable’’ are removed

wherever they appear in the following

places:

a. § 220.2(b);

b. § 220.7(e)(2);

c. § 220.9(a);

d. Appendix A to Part 220; and

e. Appendix C to Part 220.

3. In § 220.2,

a. Revise paragraph (p–1), and

b. Amend paragraph (t) by removing

the words ‘‘or § 220.8, whichever is

applicable,’’.

The revision reads read as follows:

§ 220.2 Definitions.

* * * * *

(p–1) Nutrient Standard Menu

Planning/Assisted Nutrient Standard

Menu Planning means ways to develop

breakfast menus based on the analysis

for nutrients in the menu items and

foods offered over a school week to

determine if specific levels for a set of

key nutrients and calories were met in

accordance with § 220.8(e)(5). However,

for the purposes of Assisted Nutrient

Standard Menu Planning, breakfast

menu planning and analysis are

completed by other entities and must

incorporate the production quantities

needed to accommodate the specific

service requirements of a particular

school or school food authority in

accordance with § 220.8(f).

* * * * *

4. Section 220.8 is revised to read as

follows:

§ 220.8. What are the nutrition standards

and menu planning approaches for

breakfasts?

(a) What are the nutrition standards

for breakfasts for children age 2 and

over? School food authorities must

ensure that participating schools

provide nutritious and well-balanced

breakfasts. For children age 2 and over,

breakfasts, when averaged over a school

week, must meet the nutrition standards

and the appropriate nutrient and calorie

levels in this section. The nutrition

standards are:

(1) Provision of one-fourth of the

Recommended Dietary Allowances

26924 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(RDA) for protein, calcium, iron,

vitamin A and vitamin C in the

appropriate levels (see paragraphs (b),

(c), (e)(1), or (h) of this section);

(2) Provision of the breakfast energy

allowances (calories) for children in the

appropriate levels (see paragraphs (b),

(c), (e)(1), or (h) of this section);

(3) These applicable

recommendations of the 1995 Dietary

Guidelines for Americans:

(i) Eat a variety of foods;

(ii) Limit total fat to 30 percent of total

calories;

(iii) Limit saturated fat to less than 10

percent of total calories;

(iv) Choose a diet low in cholesterol;

(v) Choose a diet with plenty of grain

products, vegetables, and fruits; and

(vi) Choose a diet moderate in salt and

sodium.

(4) These measures of compliance

with the applicable recommendations of

the 1995 Dietary Guidelines for

Americans:

(i) Limit the percent of calories from

total fat to 30 percent of the actual

number of calories offered;

(ii) Limit the percent of calories from

saturated fat to less than 10 percent of

the actual number of calories offered;

(iii) Reduce sodium and cholesterol

levels; and

(iv) Increase the level of dietary fiber.

(5) School food authorities have

several ways to plan menus. The

minimum levels of nutrients and

calories that breakfasts must offer

depends on the menu planning

approach used and the age/grades

served. The menu planning approaches

are:

(i) Nutrient standard menu planning

(see paragraphs (b) and (e) of this

section);

(ii) Assisted nutrient standard menu

planning (see paragraphs (b) and (f) of

this section);

(iii) Traditional food-based menu

planning (see paragraphs (c) and (g)(1)

of this section);

(iv) Enhanced food-based menu

planning (see paragraphs (c) and (g)(2)

of this section); or

(v) Alternate menu planning as

provided for in paragraph (h) of this

section.

(6) Schools must keep production and

menu records for the breakfasts they

produce. These records must show how

the breakfasts contribute to the required

food components, food items or menu

items every day. In addition, these

records must show how the breakfasts

contribute to the nutrition standards in

paragraph (a) of this section and the

appropriate calorie and nutrient levels

(see paragraphs (c), (d) or (h) of this

section, depending on the menu

planning approach used) over the

school week. If applicable, schools or

school food authorities must maintain

nutritional analysis records to

demonstrate that breakfasts, when

averaged over each school week, meet:

(i) The nutrition standards provided

in paragraph (a) of this section; and

(ii) The nutrient and calorie levels for

children for each age or grade group in

accordance with paragraphs (b), (e)(1) of

this section or developed under

paragraph (h) of this section.

(b) What are the levels for nutrients

and calories for breakfasts planned

under the nutrient standard or assisted

nutrient standard menu planning

approaches?

(1) The required levels are:

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26925

(2) Optional levels are:

(3) Schools may also develop a set of

nutrient and calorie levels for a school

week. These levels are customized for

the age groups of the children in the

particular school.

(c) What are the nutrient and calorie

levels for breakfasts planned under the

food-based menu planning approaches?

(1) Traditional approach. For the

traditional food-based menu planning

approach, the required levels are:

26926 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(2) Enhanced approach. For the enhanced food-based menu planning approach, the required levels are:

(d) What exceptions and variations

are allowed in reimbursable breakfasts?

(1) Exceptions for medical or special

dietary needs. Schools must make

substitutions in breakfasts for students

who are considered to have a disability

under 7 CFR Part 15b and whose

disability restricts their diet. Schools

may also make substitutions for

students who do not have a disability

but who cannot consume the regular

breakfast because of medical or other

special dietary needs. Substitutions

must be made on a case by case basis

only when supported by a statement of

the need for substitutions that includes

recommended alternate foods, unless

otherwise exempted by FNS. Such

statement must, in the case of a student

with a disability, be signed by a

physician or, in the case of a student

who is not disabled, by a recognized

medical authority.

(2) Variations for ethnic, religious, or

economic reasons. Schools should

consider ethnic and religious

preferences when planning and

preparing breakfasts. Variations on an

experimental or continuing basis in the

food components for the food-based

menu planning approaches in paragraph

(g) may be allowed by FNS. Any

variations must be nutritionally sound

and needed to meet ethnic, religious, or

economic needs.

(3) Exceptions for natural disasters. If

there is a natural disaster or other

catastrophe, FNS may temporarily allow

schools to serve breakfasts for

reimbursement that do not meet the

requirements in this section.

(e) What are the requirements for the

nutrient standard menu planning

approach?

(1) Nutrient levels.

(i) Adjusting nutrient levels for young

children. Schools with children who are

age 2 must at least meet the nutrition

standards in paragraph (a) of this

section and the preschool nutrient and

calorie levels in paragraph (b)(1) of this

section over a school week. Schools may

also use the preschool nutrient and

calorie levels in paragraph (b)(2) of this

section or may calculate nutrient and

calorie levels for two year olds. FNS has

a method for calculating these levels in

menu planning guidance materials. (ii) Minimum levels for nutrients.

Breakfasts must at least offer the

nutrient and calorie levels for the

required grade groups in the table in

paragraph (b)(1) of this section. Schools

may also offer breakfasts meeting the

nutrient and calorie levels for the age

groups in paragraph (b)(2) of this

section. If only one grade or age group

is outside the established levels, schools

may follow the levels for the majority of

the children. Schools may also

customize the nutrient and calorie

levels for the children they serve. FNS

has a method for calculating these levels

in guidance materials for menu

planning. (2) Reimbursable breakfasts. (i) Contents of a reimbursable

breakfast. A reimbursable breakfast

must include at least three menu items.

All menu items or foods offered in a

reimbursable breakfast contribute to the

nutrition standards in paragraph (a) of

this section and to the levels of

nutrients and calories that must be met

in paragraphs (c) or (e)(1) of this section.

Unless offered as part of a menu item in

a reimbursable breakfast, foods of

minimal nutritional value (see appendix

B to part 220) are not included in the

nutrient analysis. Reimbursable

breakfasts planned under the nutrient

standard menu planning approach must

meet the nutrition standards in

paragraph (a) of this section and the

appropriate nutrient and calorie levels

in paragraph (b) or (e)(1) of this section. (ii) Offer versus serve. Schools must

offer at least three menu items. At their

option, school food authorities may

allow students to select only two menu

items and to decline a maximum of one

menu item. The price of a reimbursable

breakfast does not change if the student

does not take a menu item or requests

smaller portions.

(3) Doing the analysis. Schools using

nutrient standard menu planning must

conduct the analysis on all menu items

and foods offered in a reimbursable

breakfast. The analysis is conducted

over a school week. Unless offered as

part of a menu item in a reimbursable

breakfast, foods of minimal nutritional

value (see appendix B to part 220) are

not included in the nutrient analysis.

(4) Software elements.

(i) The Child Nutrition Database. The

nutrient analysis is based on the Child

Nutrition Database. This database is part

of the software used to do a nutrient

analysis. Software companies or others

developing systems for schools may

contact FNS for more information about

the database.

(ii) Software evaluation. FNS or an

FNS designee evaluates any nutrient

analysis software before it may be used

in schools. FNS or its designee

determines if the software, as submitted,

meets the minimum requirements. The

approval of software does not mean that

FNS or USDA endorses it. The software

must be able to do all functions after the

basic data is entered. The required

functions include weighted averages

and the optional combined analysis of

the lunch and breakfast programs.

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26927

(5) Nutrient analysis procedures.

(i) Weighted averages. Schools must

include all menu items and foods

offered in reimbursable breakfasts in the

nutrient analysis. Menu items and foods

are included based on the portion sizes

and projected serving amounts. They are

also weighted based on their

proportionate contribution to the

breakfasts offered. This means that

menu items or foods more frequently

offered are weighted more heavily than

those not offered as frequently. Schools

calculate weighting as indicated by FNS

guidance and by the guidance provided

by the software. Through September 30,

2003, schools are not required to

conduct a weighted analysis.

(ii) Analyzed nutrients. The analysis

includes all menu items and foods

offered over a school week. The analysis

must determine the levels of: Calories,

protein, vitamin A, vitamin C, iron,

calcium, total fat, saturated fat, sodium,

cholesterol and dietary fiber.

(iii) Combining the analysis of the

lunch and breakfast programs. At their

option, schools may combine the

analysis of breakfasts offered under this

part and lunches offered under part 210

of this chapter. The analysis is done

proportionately to the levels of

participation in each program based on

FNS guidance.

(6) Comparing the results of the

nutrient analysis. Once the procedures

in paragraph (i)(5) of this section are

completed, schools must compare the

results of the analysis to the appropriate

nutrient and calorie levels, by age/grade

groups, in paragraph (b) of this section

or those developed under paragraph

(e)(1) of this section. This comparison

determines the school week’s average.

Schools must also make comparisons to

the nutrition standards in paragraph (a)

of this section to determine how well

they are meeting the nutrition standards

over the school week.

(7) Adjustments to the menus. Once

schools know the results of the nutrient

analysis based on the procedures in

paragraphs (e)(5) and (e)(6) of this

section, they must adjust future menu

cycles to reflect production and how

often the menu items and foods are

offered. Schools may need to reanalyze

menus when the students’ selections

and, consequently, production levels

change. Schools may need to change the

menu items and foods offered given the

students’ selections and may need to

modify the recipes and other

specifications to make sure that the

nutrition standards in paragraph (a) and

either paragraph (b) or (e)(1) of this

section are met.

(8) Standardized recipes. If a school

follows the nutrient standard menu

planning approach, it must develop and

follow standardized recipes. A

standardized recipe is a recipe that was

tested to provide an established yield

and quantity using the same ingredients

for both measurement and preparation

methods. Any standardized recipes

developed by USDA/FNS are in the

Child Nutrition Database. If a school has

its own recipes, they must be

standardized and analyzed to determine

the levels of calories, nutrients, and

dietary components listed in paragraph

(e)(5)(ii) of this section. Schools must

add any local recipes to their local

database as outlined in FNS guidance.

(9) Processed foods. The Child

Nutrition Database includes a number of

processed foods. Schools may use

purchased processed foods and menu

items that are not in the Child Nutrition

Database. Schools or the State agency

must add any locally purchased

processed foods and menu items to their

local database as outlined in FNS

guidance. Schools or State agencies

must obtain the levels of calories,

nutrients, and dietary components listed

in paragraph (e)(5)(ii) of this section.

(10) Menu substitutions. Schools may

need to substitute foods or menu items

in a menu that was already analyzed. If

the substitution(s) occurs more than two

weeks before the planned menu is

served, the school must reanalyze the

revised menu. If the substitution(s)

occurs two weeks or less before the

planned menu is served, the school does

not need to do a reanalysis. However,

schools should always try to substitute

similar foods.

(11) Meeting the nutrition standards.

The school’s analysis shows whether

their menus are meeting the nutrition

standards in paragraph (a) of this

section and the appropriate levels of

nutrients and calories in paragraph (b)

of this section or customized levels

developed under paragraph (e)(1) of this

section. If the analysis shows that the

menu(s) are not meeting these

standards, the school needs to take

action to make sure that the breakfasts

meet the nutrition standards and the

calorie, nutrient, and dietary component

levels. Actions may include technical

assistance and training and may be

taken by the State agency, the school

food authority or by the school as

needed.

(12) Other Child Nutrition Programs

and nutrient standard analysis menu

planning. School food authorities that

operate the Summer Food Service

Program (part 225 of this chapter) and/

or the Child and Adult Care Food

Program (part 226 of this chapter) may,

with State agency approval, prepare

breakfasts for these programs using the

nutrient standard menu planning

approach for children age two and over.

FNS has guidance on the levels of

nutrient and calories for adult breakfasts

offered under the Child and Adult Care

Food Program.

(f) What are the requirements for the

assisted nutrient standard menu

planning approach?

(1) Definition of assisted nutrient

standard menu planning. Some school

food authorities may not be able to do

all of the procedures necessary for

nutrient standard menu planning. The

assisted nutrient standard menu

planning approach provides schools

with menu cycles developed and

analyzed by other sources. These

sources include the State agency, other

schools, consultants, or food service

management companies.

(2) Elements of assisted nutrient

standard menu planning. School food

authorities using menu cycles

developed under assisted nutrient

standard menu planning must follow

the procedures in paragraphs (e)(1)

through (e)(10) of this section. The

menu cycles must also incorporate local

food preferences and accommodate

local food service operations. The menu

cycles must meet the nutrition

standards in paragraph (a) of this

section and meet the applicable nutrient

and calorie levels for nutrient standard

menu planning in paragraphs (b) or

(e)(1) of this section. The supplier of the

assisted nutrient standard menu

planning approach must also develop

and provide recipes, food product

specifications, and preparation

techniques. All of these components

support the nutrient analysis results of

the menu cycles used by the receiving

school food authorities.

(3) State agency approval. Prior to its

use, the State agency must approve the

initial menu cycle, recipes and other

specifications of the assisted nutrient

standard menu planning approach. The

State agency needs to make sure all the

steps required for nutrient analysis were

followed. School food authorities may

also ask the State agency for assistance

with implementation of their assisted

nutrient standard menu planning

approach.

(4) Required adjustments. After the

initial service of the menu cycle

developed under the assisted nutrient

standard menu planning approach, the

nutrient analysis must be reassessed and

appropriate adjustments made as

discussed in paragraph (e)(7) of this

section.

(5) Final responsibility for meeting the

nutrition standards. The school food

authority using the assisted nutrient

standard menu planning approach

26928 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

retains final responsibility for meeting

the nutrition standards in paragraph (a)

of this section and the applicable calorie

and nutrient levels in paragraphs (b) or

(e)(1) of this section.

(6) Adjustments to the menus. If the

nutrient analysis shows that the

breakfasts offered are not meeting the

nutrition standards in paragraph (a) of

this section and the applicable calorie

and nutrient levels in paragraphs (b) or

(e)(1) of this section, the State agency,

school food authority or school must

take action to make sure the breakfasts

offered meet these requirements.

Actions needed include technical

assistance and training.

(7) Other Child Nutrition Programs

and assisted nutrient analysis menu

planning. School food authorities that

operate the Summer Food Service

Program (part 225 of this chapter) and/

or the Child and Adult Care Food

Program (part 226 of this chapter) may,

with State agency approval, prepare

breakfasts for these programs using the

assisted nutrient standard menu

planning approach for children age two

and over. FNS has guidance on the

levels of nutrients and calories for adult

breakfasts offered under the Child and

Adult Care Food Program.

(g) What are the requirements for the

food-based menu planning approaches?

(1) Food items. There are two menu

planning approaches based on meal

patterns, not nutrient analysis. These

approaches are the traditional foodbased menu planning approach and the

enhanced food-based menu planning

approach. Schools using one of these

approaches must offer these food items

in at least the portions required for

various age/grade groups:

(i) A serving of fluid milk as a

beverage or on cereal or used partly for

both;

(ii) A serving of fruit or vegetable or

both, or full-strength fruit or vegetable

juice; and

(iii) Two servings from one of the

following components or one serving

from each component:

(A) Grains/breads; and/or

(B) Meat/meat alternate.

(2) Quantities for the traditional foodbased menu planning approach. At a

minimum, schools must offer the food

items in the quantities specified for the

appropriate age/grade group in the

following table:

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26929

(3) Quantities for the enhanced food-based menu planning approach. At a minimum, schools must offer the food

items in the quantities specified for the appropriate age/grade group in the following table:

(4) Offer versus serve. Each school

must offer all four required food items

listed in paragraph (g)(1) of this section.

At the option of the school food

authority, each school may allow

students to refuse one food item from

any component. 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 must not

affect the charge for a reimbursable

breakfast.

(5) Meal pattern exceptions for

outlying areas. Schools in American

Samoa, Puerto Rico and the Virgin

Islands may serve a starchy vegetable

such as yams, plantains, or sweet

potatoes to meet the grain/bread

requirement.

(h) What are the requirements for

alternate menu planning approaches?

(1) Definition. Alternate menu

planning approaches are those adopted

or developed by school food authorities

or State agencies that differ from the

standard approaches established in

paragraphs (e) through (g) of this

section.

26930 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

(2) Use and approval of major

changes or new alternate approaches.

Within the guidelines established for

developing alternate menu planning

approaches, school food authorities or

State agencies may modify one of the

established menu planning approaches

in paragraphs (e) through (g) of this

section or may develop their own menu

planning approach. The alternate menu

planning approach must be available in

writing for review and monitoring

purposes. No formal plan is required;

guidance material, a handbook or

protocol is sufficient. As appropriate,

the material must address how the

guidelines in paragraph (h)(3) of this

section are met. A State agency that

develops an alternate approach that is

exempt from FNS approval under

paragraph (h)(2)(iii) of this section must

notify FNS in writing when

implementing the alternate approach.

(i) Approval of local level plans. Any

school food authority-developed menu

planning approach must have prior

State agency review and approval.

(ii) Approval of State agency plans.

Unless exempt under paragraph

(h)(2)(iii) of this section, any State

agency-developed menu planning

approach must have prior FNS

approval.

(iii) State agency plans not subject to

approval. A State agency-developed

menu planning approach does not need

FNS approval if:

(A) Five or more school food

authorities in the State use it; and

(B) The State agency maintains ongoing oversight of the operation and

evaluation of the approach and makes

any needed adjustments to its policies

and procedures to ensure that the

appropriate guidelines in paragraph

(h)(3) of this section are met.

(3) Elements for major changes or new

approaches. Any alternate menu

planning approach must:

(i) offer fluid milk, as provided in

paragraph (i) of this section;

(ii) include the procedures for offer

versus serve if the school food authority

chooses to implement the offer versus

serve option. Alternate approaches

should follow the offer versus serve

procedures in paragraphs (e)(2)(ii) and

(g)(4) of this section, as appropriate. If

these requirements are not followed, the

approach must indicate:

(A) The affected age/grade groups;

(B) The number and type of items

(and, if applicable, the quantities for the

items) that constitute a reimbursable

breakfast under offer versus serve;

(C) How such procedures will reduce

plate waste; and

(D) How a reasonable level of calories

and nutrients for the breakfast as taken

is provided.

(iii) Meet the Recommended Dietary

Allowances and breakfast energy

allowances (nutrient levels) and

indicate the age/grade groups served

and how the nutrient levels are met for

those age/grade groups;

(iv) Follow the requirements for

competitive foods in § § 220.2(i–1) and

220.12 and appendix B to this part;

(v) Follow the requirements for

counting food items and products

towards meeting the meal patterns.

These requirements are found in

paragraphs (g) and (i) of this section, in

appendices A through C to this part, and

in instructions and guidance issued by

FNS. This only applies if the alternate

approach is a food-based menu planning

approach.

(vi) Identify a reimbursable breakfast

at the point of service.

(A) To the extent possible, the

procedures provided in paragraph

(e)(2)(i) of this section for nutrient

standard or assisted nutrient standard

menu planning approaches or for foodbased menu planning approaches

provided in paragraph (g) of this section

must be followed. Any instructions or

guidance issued by FNS that further

defines the elements of a reimbursable

breakfast must be followed when using

the existing regulatory provisions.

(B) Any alternate approach that

deviates from the provisions in

paragraph (e)(2)(i) or paragraph (g) of

this section must indicate what

constitutes a reimbursable breakfast,

including the number and type of items

(and, if applicable, the quantities for the

items) which comprise the breakfast,

and how a reimbursable breakfast is to

be identified at the point of service.

(vii) explain how the alternate menu

planning approach can be monitored

under the applicable provisions of

§ 210.18 and § 210.19 of this chapter,

including a description of the records

that will be maintained to document

compliance with the program’s

administrative and nutrition

requirements. However, if the

procedures under § 210.19 of this

chapter cannot be used to monitor the

alternate approach, a description of

review procedures which will enable

the State agency to assess compliance

with the nutrition standards in

paragraphs (a)(1) through (a)(4) of this

section must be included; and

(viii) follow the requirements for

weighted analysis and for approved

software for nutrient standard menu

planning as required by paragraphs

(e)(4) and (e)(5) of this section unless a

State agency-developed approach meets

the criteria in paragraph (h)(2)(iii) of

this section. Through September 30,

2003, schools are not required to

conduct a weighted analysis.

(i) What are the requirements for

offering milk?

(1) Serving milk. A serving of milk as

a beverage or on cereal or used in part

for each purpose must be offered for

breakfasts.

(2) Inadequate milk supply. If a school

cannot get a supply of milk, it can still

participate in the Program under the

following conditions:

(i) If emergency conditions

temporarily prevent a school that

normally has a supply of fluid milk

from obtaining delivery of such milk,

the State agency may allow the school

to serve breakfasts during the emergency

period with an alternate form of milk or

without milk.

(ii) If a school is unable to obtain a

supply of any type of fluid milk on a

continuing basis, the State agency may

allow schools to substitute canned or

dry milk in the required quantities in

the preparation of breakfasts. In Alaska,

Hawaii, American Samoa, Guam, Puerto

Rico, and the Virgin Islands, if a

sufficient supply of fluid milk cannot be

obtained, ‘‘milk’’ includes reconstituted

or recombined milk, or otherwise as

allowed by FNS through a written

exception.

(j) What are the requirements for the

infant meal pattern? Schools must offer

infants ages birth through 11 months of

age an infant breakfast. Foods included

in the infant breakfast pattern must be

of texture and consistency appropriate

for the age group served. Foods must be

served to the infant during a span of

time consistent with the infant’s eating

habits. For infants 4 through 7 months

of age, solid foods are optional and

should be introduced only when the

infant is developmentally ready.

Whenever possible, the school should

consult with the infant’s parents in

making the decision to introduce solid

foods. Solid foods should be introduced

one at a time on a gradual basis with the

intent of ensuring health and nutritional

well-being. For infants 8 through 11

months of age, the total amount of food

in the meal patterns in paragraph (j)(3)

of this section must be provided to

qualify for reimbursement. Additional

foods may be served to infants 4 months

of age and older with the intent of

improving their overall nutrition. Breast

milk, provided by the infant’s mother,

may be served in place of infant formula

from birth through 11 months of age.

Either breast milk or iron-fortified infant

formula must be served for the entire

first year. For some breastfed infants

who regularly consume less than the

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26931

minimum amount of breast milk per

feeding, a serving of less than the

minimum amount of breast milk may be

offered, with additional ounces offered

if the infant is still hungry. The infant

breakfast pattern must have at least each

of the following components in the

amounts indicated for the appropriate

age group:

(1) Birth through 3 months—4 to 6

fluid ounces of breast milk or ironfortified infant formula.

(2) 4 through 7 months—4 to 8 fluid

ounces of breast milk or iron-fortified

infant formula; and 0 to 3 tablespoons

of iron-fortified dry infant cereal

(optional).

(3) 8 through 11 months—6 to 8 fluid

ounces of breast milk or iron-fortified

infant formula; 2 to 4 tablespoons of

iron-fortified dry infant cereal; and 1 to

4 tablespoons of fruit or vegetable of

appropriate consistency or a

combination of both.

(k) What about serving additional

foods? Schools may offer additional

foods with breakfasts to children over

one year of age.

(l) Must schools offer choices at

breakfast? FNS encourages schools to

offer children a selection of foods and

menu items at breakfast. Choices

provide variety and encourage

consumption. Schools may offer choices

of reimbursable breakfasts or foods

within a reimbursable breakfast. When a

school offers a selection of more than

one type of breakfast or when it offers

a variety of food components, menu

items or foods and milk for choice as a

reimbursable breakfast, the school must

offer all children the same selection(s)

regardless of whether the child is

eligible for free or reduced price

breakfasts or must pay the designated

full price. The school may establish

different unit prices for each type of

breakfast offered provided that the

benefits made available to children

eligible for free or reduced price

breakfasts are not affected.

(m) What should schools do about

nutrition disclosure? FNS encourages

schools to inform the students, parents,

and the public about efforts they are

making to meet the nutrition standards

in paragraph (a) for school breakfasts.

§ 220.8a [Removed].

5. Section 220.8a is removed in its

entirety.

6. In § 220.13, paragraph (f)(3) is

revised to read as follows:

§ 220.13 Special responsibilities of State

agencies.

* * * * *

(f) * * *

(3) For the purposes of compliance

with the nutrition standards in

§ 220.8(a) and the nutrient and calorie

levels in § 220.8(b) or (c) or those

developed under § 220.8(e)(1) or (h), the

State agency shall follow the provisions

specified § 210.19(a)(1) of this chapter.

* * * * *

§ 220.14 [Amended].

7. In § 220.14, amend paragraph (h) by

removing the words ‘‘or § 220.8a(a)(1),

(b)(2), and (b)(3)’’.

Dated: April 27, 2000.

Shirley R. Watkins,

Under Secretary, Food, Nutrition, and

Consumer Services.

[FR Doc. 00–11259 Filed 5–8–00; 8:45 am]

BILLING CODE 3410–30–U