[Federal Register Volume 65, Number 90 (Tuesday, May 9, 2000)]
[Rules and Regulations]
[Pages 26904-26931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11259]



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Part III





Department of Agriculture





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Food and Nutrition Service



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7 CFR Parts 210 and 220



National School Lunch Program and School Breakfast Program: Additional 
Menu Planning Approaches; Final Rule

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

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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.

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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

[[Page 26905]]

National Research Council of the National Academy of Sciences. However, 
our regulations at 7 CFR Sec. 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:

------------------------------------------------------------------------
                                                              Number of
                     Type of commentor                        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
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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 Secs. 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 Food-
Based 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 
Sec. 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   Use the nutrient
                           for grades 4-12 from    levels for grades K-6
                           the traditional food-   from the other menu
                           based menu planning     planning approaches.
                           approach.
7-12....................  Use the portion sizes   Use the nutrient
                           for grades 4-12 from    levels for grades 7-
                           the traditional food-   12 from the other
                           based menu planning     menu planning
                           approach.               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

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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 Sec. 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 grain-based 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 Sec. Sec. 210.10(k) and 220.8(g) 
which outline the food-based 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 Sec. 210.10(l) and Sec. 220.8(h). Revisions and 
modifications are discussed below in detail.

What Was Proposed About Minor Pre-approved 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/

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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 
Sec. 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 1\1/2\ 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, Sec. 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 
alternate-grains/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 
Sec. Sec. 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

[[Page 26908]]

allow us to share this information with other State agencies that might 
wish to adopt a similar alternate approach. This provision is 
incorporated into Sec. 210.10(l)(3) and Sec. 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 Sec. 210.10(l)(3)(i) and Sec. 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 
agency-developed 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 State-level approaches 
that required pre-approval, two of which supported the review and 
approval process. Therefore, we are adopting these provisions as 
proposed at Sec. 210.10(l)(3)(ii) and Sec. 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:
    <bullet> The State agency is an active and on-going partner with 
the schools;
    <bullet> 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
    <bullet> 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 agency-developed 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 agency-developed 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 
Sec. 210.10(l)(3)(iii) and Sec. 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

[[Page 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 Secs. 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 
Sec. 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 Sec. 210.10(l)(4)(i) and 
Sec. 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 
Sec. 210.10(l)(4)(ii) and Sec. 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, one-third 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 Sec. 210.10(l)(4)(iii) and 
Sec. 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, Sec. 210.11(b) and Sec. 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 
Sec. 210.10(l)(4)(iv) and Sec. 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 Sec. 210.10 and 
Sec. 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 Sec. 210.10(l)(4)(v) and 
Sec. 220.8(h)(3)(v).

[[Page 26910]]

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 Sec. 210.10(l)(4)(vi) and Sec. 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 Sec. 210.10(l)(4)(vii) and 
Sec. 220.8(h)(3)(vii) with conforming amendments at Sec. 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 Sec. 210.10(l)(4)(viii) and 
Sec. 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 
Sec. 210.10(i)(5)(i) and Sec. 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 Secs. 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

[[Page 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 Sec. 210.10(l)(4)(viii) 
and Sec. 220.8(h)(3)(viii).

What Clarifications Were Proposed About Assessing Compliance With the 
Nutrition Standards?

    We proposed amendments to Sec. 210.18 and Sec. 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 Sec. 210.18 and Sec. 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 Sec. 210.18(b)(2)(ii), (g)(2), 
and (i)(3)(ii) and to Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 210.19(a)(1)(i) to 
make the cycle for nutrition assessments consistent with the cycle for 
administrative reviews under Sec. 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 
Sec. 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 Sec. 210.10(b) and Sec. 220.8(a) and to 
the footnotes for the tables in Secs. 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 Sec. 210.10(i) and 
Sec. 220.8(e). We are also deleting obsolete sections of Secs. 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 
Secs. 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 
Secs. 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 (Sec. 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''

[[Page 26912]]

(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 Sec. 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 Sec. 210.10a, whichever is 
applicable'' are removed wherever they appear in the following places:
    a. Sec. 210.9(b)(5);
    b. Sec. 210.9(c)(1);
    c. Sec. 210.16(b)(1);
    d. Sec. 210.19(a)(3);
    e. Appendix A to Part 210; and
    f. Appendix C to Part 210.

    3. In part 210, the words ``or Sec. 210.10a(b), whichever is 
applicable'' are removed wherever they appear in the following places:
    a. Sec. 210.7(c)(1)(v); and
    b. Sec. 210.15(b)(3).

    4. In part 210, the words ``or Sec. 210.10a(j)(1), whichever is 
applicable'' are removed wherever they appear in the following places:
    a. Sec. 210.4(b)(3);
    b. Sec. 210.7(d); and
    c. Sec. 210.9(c), introductory text.


Sec. 210.2  [Amended].

    4. In Sec. 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:


Sec. 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

[[Page 26913]]

and portion sizes in Sec. 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 Sec. 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 Sec. 210.10(j).
* * * * *

    5. In Sec. 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:


Sec. 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:

[[Page 26914]]

[GRAPHIC] [TIFF OMITTED] TR09MY00.000

    (2) Optional levels. Optional levels are:
    [GRAPHIC] [TIFF OMITTED] TR09MY00.001
    
    (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:

[[Page 26915]]

[GRAPHIC] [TIFF OMITTED] TR09MY00.002

    (2) Enhanced approach. For the enhanced food-based menu planning 
approach, the required levels are:
[GRAPHIC] [TIFF OMITTED] TR09MY00.003

    (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

[[Page 26916]]

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

[[Page 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 food-based menu planning 
approach. (i) Minimum quantities. At a minimum, schools must offer five 
food items in the quantities in the following table:

[[Page 26918]]

[GRAPHIC] [TIFF OMITTED] TR09MY00.004

    (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 food-based menu planning approach. 
Schools must at least offer five food items in the quantities in the 
following table:

[[Page 26919]]

[GRAPHIC] [TIFF OMITTED] TR09MY00.005

    (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 one-half cup in any combination over 
a five day period.

[[Page 26920]]

    (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 (\1/5\th) for 
each additional day. When schools operate less than 5 days per week, 
they may decrease the weekly quantity by approximately 20 percent (\1/
5\th) 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 
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 on-going 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 Sec. 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

[[Page 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 food-based 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 Sec. 210.18 and 
Sec. 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 Sec. 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 iron-fortified 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 iron-fortified 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 
iron-fortified 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.

[[Page 26922]]

[GRAPHIC] [TIFF OMITTED] TR09MY00.006

Sec. 210.10a  [Removed]

    6. Section 210.10a is removed.


Sec. 210.15  [Amended]

    7. In section 210.15, paragraph (b)(2) is amended by removing the 
words ``menu records as required under Sec. 210.10a and production 
and''.


Sec. 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:


Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 210.10.
* * * * *

    9. In Sec. 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);

[[Page 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:


Sec. 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 Sec. 210.10(b) and 
Sec. 210.10(c), (d), or (i)(1) or the procedures developed under 
Sec. 210.10(l), as applicable, is assessed. For breakfasts, see 
Sec. 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 Sec. 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 
Sec. 220.13(f)(3) of this chapter and may be done at the time of the 
initial review or as part of a follow-up to assess compliance with the 
nutrition standards.
    (ii) At a minimum, State agencies shall conduct evaluations of 
compliance with the nutrition standards in Sec. 210.10 and Sec. 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 
Sec. 210.10(i), Sec. 210.10(j), Sec. 220.8(e) or Sec. 220.8(f) of this 
chapter, or developed under the procedures in Sec. 210.10(l) or 
Sec. 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 Sec. 210.10(k) or Sec. 220.8(g) of this 
chapter or developed under the procedures in Sec. 210.10(l) or 
Sec. 220.8(h) of this chapter, the State agency must determine if the 
nutrition standards in Sec. 210.10 and Sec. 220.8 of this chapter are 
met. The State agency shall conduct a nutrient analysis in accordance 
with the procedures in Sec. 210.10(i) or Sec. 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 Sec. 210.10(k) and Sec. 220.8(g) of 
this chapter and that conducts its own nutrient analysis under the 
criteria for such analysis established in Sec. 210.10 and Sec. 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 Sec. 210.10(l) or Sec. 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 Sec. 210.10(l) or Sec. 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 
Sec. 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 Sec. 220.8a, whichever is 
applicable'' are removed wherever they appear in the following places:
    a. Sec. 220.2(b);
    b. Sec. 220.7(e)(2);
    c. Sec. 220.9(a);
    d. Appendix A to Part 220; and
    e. Appendix C to Part 220.

    3. In Sec. 220.2,
    a. Revise paragraph (p-1), and
    b. Amend paragraph (t) by removing the words ``or Sec. 220.8, 
whichever is applicable,''.
    The revision reads read as follows:


Sec. 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 Sec. 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 Sec. 220.8(f).
* * * * *

    4. Section 220.8 is revised to read as follows:


Sec. 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

[[Page 26924]]

(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:
    [GRAPHIC] [TIFF OMITTED] TR09MY00.007
    

[[Page 26925]]


    (2) Optional levels are:
    [GRAPHIC] [TIFF OMITTED] TR09MY00.008
    
    (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:
[GRAPHIC] [TIFF OMITTED] TR09MY00.009


[[Page 26926]]


    (2) Enhanced approach. For the enhanced food-based menu planning 
approach, the required levels are:
[GRAPHIC] [TIFF OMITTED] TR09MY00.010

    (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.

[[Page 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

[[Page 26928]]

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 food-based 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 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:
[GRAPHIC] [TIFF OMITTED] TR09MY00.011


[[Page 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:
[GRAPHIC] [TIFF OMITTED] TR09MY00.012

    (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.

[[Page 26930]]

    (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 on-going 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 
Sec. Sec. 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 food-based 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 Sec. 210.18 and 
Sec. 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 Sec. 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

[[Page 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 
iron-fortified 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.
[GRAPHIC] [TIFF OMITTED] TR09MY00.013

    (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.


Sec. 220.8a  [Removed].

    5. Section 220.8a is removed in its entirety.

    6. In Sec. 220.13, paragraph (f)(3) is revised to read as follows:


Sec. 220.13  Special responsibilities of State agencies.

* * * * *
    (f) * * *
    (3) For the purposes of compliance with the nutrition standards in 
Sec. 220.8(a) and the nutrient and calorie levels in Sec. 220.8(b) or 
(c) or those developed under Sec. 220.8(e)(1) or (h), the State agency 
shall follow the provisions specified Sec. 210.19(a)(1) of this 
chapter.
* * * * *


Sec. 220.14  [Amended].

    7. In Sec. 220.14, amend paragraph (h) by removing the words ``or 
Sec. 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