27162 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

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 Alternatives

Editorial Note: FR Doc. 98–11654 was

originally published at 63 FR 24686–24709 in

the issue of Monday, May 4, 1998. Due to

numerous errors, the document is being

republished in its entirety. The comment

dates have changed. Also, disregard the

correction document published at 63 FR

25569 May 8, 1998.

AGENCY: Food and Nutrition Service,

USDA.

ACTION: Proposed rule.

SUMMARY: The National School Lunch

Act requires that schools that are

participating in the National School

Lunch or School Breakfast Programs

claim reimbursements only for lunches

or breakfasts which meet the nutrition

standards of the National School Lunch

Act, including compliance with the

Dietary Guidelines for Americans. The

Healthy Meals for Children Act

expanded the number of menu planning

alternatives available to school food

authorities participating in the National

School Lunch and School Breakfast

Programs. In accordance with that

legislation, this proposed rulemaking

would reinstate the menu planning

system in effect for School Year 1994–

95 (the traditional meal pattern) as one

of the menu planning alternatives

available to local school food

authorities. In addition, this proposal

would permit school food authorities to

use ‘‘any reasonable approach’’ to plan

menus to meet the nutrition standards.

The Department is also proposing to

clarify and simplify several State agency

monitoring responsibilities associated

with the implementation of the

nutrition standards of the National

School Lunch Act.

DATES: To be assured of consideration,

comments must be postmarked or e-mail

comments dated on or before November

12, 1998.

ADDRESSES: Comments must sent to: 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 or via the

Internet at

CNDProposal@FCS.USDA.GOV. All

written submissions will be available for

public inspection in Room 1007, 3101

Park Center Drive, Alexandria, Virginia

during regular business hours (8:30 a.m.

to 5:30 p.m.), Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Robert M. Eadie at the above address or

by telephone at 703–305–2620.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This proposed rule has been

determined to be significant and is

subject to review 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,

the Food and Nutrition Service

generally prepare 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 the Food and

Nutrition Service to identify and

consider a reasonable number of

regulatory alternatives and adopt the

least costly, more cost-effective or least

burdensome alternative that achieves

the objectives of the rule.

This proposed rule contains no

Federal mandates (under 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

proposed rule is not subject to the

requirements of sections 202 and 205 of

the UMRA. However, a Regulatory Cost/

Benefit Assessment is provided in the

Appendix to this preamble.

Regulatory Flexibility Act

This proposed 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 the proposal would

expand the number of options available

to plan menus for school meals.

Executive Order 12372

The National School Lunch Program

and the School Breakfast Program 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 proposed rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This proposed 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 proposed 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 proposed rule or the application

of the provisions, all applicable

administrative procedures must be

exhausted. In the National School

Lunch Program and School Breakfast

Program, the administrative procedures

are set forth under the following

regulations: (1) School food authority

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) school food authority

appeals of Food and Nutrition Service

(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,

this notice invites the general public

and other public agencies to comment

on the information collection.

Written comments must be received

on or before July 14, 1998.

Comments concerning the

information collection aspects of this

proposed rule should be sent to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget (OMB), Room 3208, New

Executive Office Building, Washington,

DC. 20503, Attention : Laura Oliven,

Desk Officer for FNS. A copy of these
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27163

comments may also be sent to Mr. Eadie

at the address listed in the ADDRESSES

section of this preamble. Commenters

are asked to separate their information

collection requirements comments from

their comments on the remainder of this

proposed rule.

OMB is required to make a decision

concerning the collection of information

contained in this proposed regulation

between 30 and 60 days after the

publication of this document in the

Federal Register. Therefore, a comment

to OMB is best assured of having its full

effect if OMB receives it within 30 days

of publication. This does not affect the

deadline for the public to comment to

the Department on the proposed

regulation.

Comments are invited on: (a) Whether

the collection of information is

necessary for the proper performance of

the functions of the agency, including

whether the information will have

practical utility; (b) the accuracy of the

agency’s estimate of the burden of the

collection of information, including the

validity of the methodology and

assumptions used; (c) ways to enhance

the quality, utility, and clarity of the

information to be collected; and (d)

ways to minimize the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques of

other forms of information technology.

The title, description, and respondent

description of the information

collections are shown below with an

estimate of the annual recordkeeping

burdens. Included in the estimate is the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information.

Title: 7 CFR Part 210, National School

Lunch Program.

OMB Number: 0584–0006.

Expiration Date: October 31, 1999.

Type of Request: Revision of currently

approved collection.

Abstract: The National School Lunch

Act requires that schools that are

participating in the school lunch

program claim reimbursements only for

lunches under the program which meet

the nutrition standards of the Act,

including compliance with the Dietary

Guidelines for Americans. The Healthy

Meals for Children Act expanded the

number of menu planning alternatives

available to school food authorities

participating in the NSLP. In accordance

with that legislation, this proposed

rulemaking would reinstate the menu

planning system in effect for school year

1994–95 (the traditional meal pattern) as

one of the menu planning alternatives

available to local school food

authorities. In addition, this proposal

would permit school food authorities to

use ‘‘any reasonable approach’’ to meet

the requirements.

In accordance with the Paperwork

Reduction Act of 1995, the Department

is providing the public with the

opportunity to provide comments on the

information collection requirements of

the proposed rule as noted below:

BILLING CODE 1505–01–F
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BILLING CODE 1505–01–C
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27165

Background

On June 13, 1995, USDA published a

final rule (60 FR 31188) updating the

nutrition standards for the National

School Lunch Program (NSLP) and

School Breakfast Program (SBP). That

rulemaking was the foundation of the

Department’s School Meals Initiative for

Healthy Children, an integrated,

comprehensive plan for promoting the

health of the Nation’s school children

by updating the nutrition standards for

school meals and by providing State

agencies and local food service

operators with the technical assistance

to meet these standards. In addition to

announcing a fundamental change in

the direction of the school meals

programs, the rulemaking implemented

section 106(b) of Public Law 103–448,

the Healthy Meals for Healthy

Americans Act of 1994, which was

enacted on November 2, 1994. That

provision amended section 9(f) of the

National School Lunch Act (NSLA) (42

U.S.C. 1758(f)) to require that school

meals meet the Dietary Guidelines for

Americans (hereinafter referred to as the

Dietary Guidelines) by School Year

1996/1997, unless an implementation

waiver of up to two years was approved

by the State agency. The rule also

established specific minimum standards

for key nutrients (protein, calcium, iron,

Vitamin A and Vitamin C), and calories

which school meals must meet. (As

discussed later, these standards are now

also included in section 9(f) of the

NSLA.)

To assist schools with

implementation of the updated nutrition

standards, the School Meals Initiative

(SMI) rule provided three menu

planning alternatives: Nutrient Standard

Menu Planning (NSMP), Assisted

Nutrient Standard Menu Planning

(ANSMP) and a food-based menu

planning alternative. After publication

of the final SMI rule, Public Law 104–

149, the Healthy Meals for Children Act,

was enacted on May 29, 1996. It

expanded the number of menu planning

alternatives which school food

authorities have available to them by

including the menu planning system

that was in effect for School Year 1994–

95, as a permanent option as well as

‘‘any reasonable approach, within

guidelines established by the Secretary

* * *.’’

Before a proposed rule to implement

Public Law 104–149 could be

published, Public Law 104–193, the

Personal Responsibility and Work

Opportunity Reconciliation Act of 1996,

was enacted on August 22, 1996. This

law further amended section 9(f)(1)(B)

of the NSLA to mandate that school

lunches and breakfasts provide, over a

week, one-third and one-fourth,

respectively, of the Recommended

Dietary Allowances (RDA) established

by the Food and Nutrition Board of the

National Research Council of the

National Academy of Sciences. Because

these requirements are already included

in the regulations establishing the new

specific nutrition standards for school

lunches and breakfasts (§ 210.10(b) and

§ 220.8(a), respectively), this proposal

would only add the appropriate RDA

requirements for the traditional meal

pattern.

Menu Planning Systems

The sole menu planning system that

was in effect for School Year 1994–95

was a meal pattern (the ‘‘traditional’’

meal pattern) which stipulated the food

components (meat/meat alternate,

fruits/vegetables, bread/bread alternate,

and milk) and the minimum quantities

of those components that had to be

offered to children of specific age/grade

groups. This meal pattern was virtually

unchanged since the establishment of

the NSLP in 1946 and, until the June 13,

1995, rulemaking, was the only menu

planning system available to school

food authorities.

In order to provide flexibility as well

as the tools that school food authorities

would need to meet modern nutrition

standards for children, the Department

developed new menu planning

alternatives designed to facilitate

compliance with the Dietary Guidelines

and the other nutrition-related

requirements of section 9(f) of the

NSLA. NSMP and ANSMP provide

menu planners with more flexible

approaches by eliminating the strict

component and quantity requirements.

Also, NSMP and ANSMP provide actual

nutrient information, including fat and

saturated fat levels, to menu planners on

an on-going basis. In addition, after the

initial proposal in 1994, the Department

developed the enhanced food-based

menu planning option which increased

the minimum number of servings over

a week’s time for the fruits/vegetables

and grains/breads components in order

to maintain calorie levels while keeping

the percentages of calories from fat and

saturated fat to 30 percent and less than

10 percent, respectively, as required.

School food authorities were given the

option of choosing which of these menu

planning alternatives best suited their

particular circumstances.

The Department developed these

menu planning alternatives with the

Dietary Guidelines nutrition standards

of the NSLA as the fundamental

element. The Department continues to

believe that the enhanced food-based,

NSMP and ANSMP alternatives best

support compliance with the Dietary

Guidelines. However, the Department

acknowledges that some school food

authorities are progressing toward

meeting the Dietary Guidelines under

the traditional meal pattern. Therefore,

the Department has concluded that,

with increased emphasis on vegetables,

fruits and grain products and with

appropriate modifications to

preparation techniques and product

specifications, the traditional meal

pattern may support all of the nutrition

standards required by the NSLA. In

recognition of this potential, the

President signed Public Law 104–149

which amended section 9(f) of the

NSLA to authorize the traditional meal

pattern as a permanent menu planning

alternative as well as any other

reasonable approaches to menu

planning under guidelines established

by the Secretary.

The remainder of this preamble

discusses the proposed implementation

of the recent statutory amendments.

This proposal also clarifies monitoring

procedures for assessing compliance

with the Dietary Guidelines and the

other nutrition standards for all menu

planning alternatives.

The 1994–95 Meal Pattern (The

Traditional Meal Pattern)

This proposal would reinstate the

menu planning system in effect for

School Year 1994–1995 as a permanent

alternative for planning school menus

under the NSLP and SBP. The SMI final

rulemaking did not allow continued use

of the traditional meal pattern after June

30, 1998, the latest date that school food

authorities could be authorized to delay

compliance with the Dietary Guidelines.

Therefore, the provisions for the

traditional meal pattern for the NSLP

were moved to a separate section

(§ 210.10a) so that schools could

continue using the traditional meal

pattern until the newer menu planning

alternatives had been fully

implemented. Similarly, the traditional

meal pattern for the SBP was

redesignated as § 220.8a.

Now that Public Law 104–149 has

reinstated the traditional meal pattern as

a permanent, food-based menu planning

alternative, this proposal would

incorporate it into paragraphs (d) and

(k) of § 210.10 and into paragraphs (c)

and (g) of § 220.8 where the

requirements for the food-based menu

planning alternative established by the

June 13, 1995, final rule are set forth.

Sections 210.10a and 220.8a would be

removed. Please note that, due to the

statutory amendment made after

publication of the final rule, the
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traditional menu planning approach

will remain in effect after the July 1,

1998, implementation deadline in

§ 210.10 (o) and § 220.8(m). To

distinguish between the two food-based

systems, the meal pattern in effect for

School Year 1994/1995 would be

formally renamed the ‘‘traditional foodbased menu planning alternative.’’ The

food-based menu planning alternative

established in the June 13, 1995,

rulemaking would be renamed the

‘‘enhanced food-based menu planning

alternative.’’

RDA for the Traditional Food-Based

Menu Planning Alternative

One proposed revision to § 210.10(d)

of the NSLP regulations would add a

chart indicating the amounts of calories

and required nutrients that equal onethird of the RDA for key nutrients and

calories for the age/grade groups of the

traditional food-based menu planning

alternative. A similar chart showing

one-fourth of the RDA for key nutrients

and calories for breakfasts would be

added to § 220.8(c). These additional

charts are necessary as the traditional

food-based menu planning alternative

follows different age/grade groupings

than used for the NSMP, ANSMP, and

enhanced food-based menu planning

alternatives.

The Department recognizes the

importance of offering meals that

provide a proportionate share of the

nutritional needs of the nation’s

schoolchildren, and that determination

of whether those needs are being met

must be based on the most accurate data

available. To this end, the Department

has calculated the RDA for each age

group using computer software

specifically designed for this purpose.

In creating the enhanced food-based

menu planning alternative, the

Department developed age/grade

groupings that were averaged to more

precisely meet the calorie and nutrient

levels at each age or stage of

development. Uniform groupings, based

as closely as possible on the actual

nutritional needs of the various ages, for

the two food-based systems would be

preferable. However, section 9(f)(4)(A)(i)

of the NSLA requires the availability of

the traditional meal pattern as it existed

in the 1994–1995 school year. The

Department, therefore, does not want to

add complexity to the traditional

approach by proposing to make more

precise age/grade groupings apply to

both food-based menu planning

alternatives. While this means menu

planners using the traditional meal

pattern may continue to meet a single

set of quantity requirements for all

children in the school, regardless of

their age or grade, the Department is

concerned that this practice could

undermine the nutrition goals of the

programs, since the food service would

not be as responsive to respond to the

varying needs of children of different

ages. The Department recognizes the

need to provide the traditional approach

without additional requirements but is

also concerned with the need to meet

the appropriate nutrition standards.

Therefore, interested parties in the food

service, nutrition and scientific

communities may wish to comment on

the appropriateness of allowing a single

age/grade grouping and the associated

nutrition standards.

‘‘Any Reasonable Approach’’

Public Law 104–149 amended section

9(f)(4) of the NSLA to permit school

food authorities to use ‘‘any reasonable

approach’’ to menu planning not

specifically delineated in section 9(f)(3)

and (4) of the NSLA. The law makes it

clear, however, that ‘‘reasonable

approaches’’ must meet guidelines

established by the Secretary. In

developing appropriate guidelines, the

Department believes there will be two

distinct classes of proposed alternative

approaches. First, some proposed

alternatives will consist of relatively

minor modifications to one or another of

the four existing menu planning

systems. For this type of suggested

alternative, the Department is proposing

to allow State agencies to establish a

general policy allowing school food

authorities to adopt such approaches

without prior Departmental approval.

The second class of alternatives will

involve unique proposals that depart

significantly from existing systems. The

Department is proposing to redesignate

§ 210.10(l) through (o) as § 210.10(m)

through (p) and to add a new § 210.10(l)

to establish basic requirements for

authorizing both classes of alternate

menu planning approaches. For the

SBP, § 220.8(h) through (m) would be

redesignated as § 220.8(i) through (n)

and § 220.8(h) would provide for

alternate menu planning approaches.

Minor ‘‘Pre-Approved’’ Modifications

The first proposed class of alternate

approaches is specific, minor

modifications to provisions of the

existing menu planning alternatives and

would be added at § 210.10(l)(1) and

§ 220.8(h)(1). While the State agency

may require prior approval or may

establish additional guidelines for their

adoption, these modifications would be

considered ‘‘pre-approved’’ in that State

agencies may allow their use without

any additional review. Of course, as part

of their general oversight

responsibilities under the NSLA, State

agencies must ensure that the school

food authority’s operations, including

these ‘‘pre-approved’’ options, are

consistent with the NSLP and SBP

regulatory standards, even if State

agencies do not require pre-approval.

The modifications are: a weekly meat/

meat alternate standard (for the NSLP

only) and flexible age/grade groupings

for the food-based menu planning

alternatives (for both the NSLP and

SBP). While only two modifications are

proposed, the Department solicits

suggestions on similar variations that

could be included under this category of

other approaches.

The Department was also asked to

consider extending a policy currently

applicable only to lunches planned

under the enhanced food-based menu

planning approach to the traditional

food-based menu planning approach.

This policy, at § 210.10(k)(2), allows

menu planners to credit up to one grainbased dessert daily towards the weekly

grain/bread requirements. This policy

was established to provide additional

flexibility for menu planners as the

number of required grain/bread items

increased substantially over the number

required for the traditional food-based

menu planning approach. For example,

for grades 7–12, the traditional foodbased alternative required eight servings

(but recommended 10) while 15

servings are required for the enhanced

food-based approach.

The Department gave this suggestion

serious consideration. However,

crediting up to one grain-based dessert

daily as a serving of grains/breads for

the traditional food-based menu

planning alternative is too significant a

proportion of the total number of

required grain/bread items. 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. Given this concern, the

Department is not proposing to extend

this policy to the traditional food-based

menu planning approach. However, the

Department would appreciate comments

on this issue.

1. Weekly Meat/Meat Alternate Quantity

Standard

Some food service directors have

indicated that it is not always practical

to offer the full daily minimum portion

of the meat/meat alternate component

required for the NSLP under the foodbased menu planning alternatives. 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
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27167

appealing entree while the full amount

required can lead to waste. To address

this situation, those school food service

directors have suggested that schools

using either of the food-based menu

planning systems be allowed the

flexibility to vary the quantity of meat/

meat alternate on a daily basis as long

as the total amount served over the

course of the school week equals the

minimum daily quantity multiplied by

the number of serving days in the week.

For example, the amount of meat/meat

alternate served on a given day could be

only one ounce or the equivalent

provided that the full 10 ounces (for

grades 4–12) or equivalent of meat/meat

alternate were available over a five day

week. This alternative would enable

meal planners using a food-based

alternative 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.

After considering this suggestion, the

Department agrees that it could provide

additional flexibility without

compromising the nutritional integrity

of the meals served over the course of

the school week. However, the

Department does not believe that the

school food authority’s ability to vary

the quantity of this component should

be completely unrestricted. Therefore,

the Department is proposing to require

that a minimum of one ounce or its

equivalent of meat/meat alternate be

offered daily. This proposal would

ensure that the amount of meat/meat

alternate offered to the student will be

reasonably consistent each day while

still providing menu planners with

enhanced flexibility. The Department

emphasizes that the option to vary the

size of the meat component would not

apply to those situations in which the

minimum quantity requirement is one

ounce or less.

The Department is not proposing to

extend this option to the meat/meat

alternate-grains/breads component of

school breakfasts because flexibility is

already provided under the food-based

menu planning alternatives. However,

comments are requested on whether

extending the weekly meat/meat

alternate to the SBP would be useful

and appropriate.

In proposing this option, the

Department recognizes that there will be

complexities with its implementation,

especially in schools that offer multiple

entree choices, since children may not

select items over the week that equal the

full weekly meal component

requirement. Therefore, comments are

particularly requested on these and

other potential difficulties as well as

any suggestions on ways to ensure that

the nutritional integrity of the meal

service is not compromised. The

modification for the meat/meat alternate

component is proposed at

§ 210.10(l)(1)(i).

2. Flexible Age-Grade Groupings for

Food-Based Alternatives

Children enrolled in a given school

may span different age/grade groupings

for purposes of the nutrient and calorie

level requirements and corresponding

portion sizes for components under the

food-based menu planning alternatives.

Under the NSMP and ANSMP menu

planning alternatives, if only one age or

grade is outside the established nutrient

and calorie level requirements for the

majority of children, schools are

permitted, under § 210.10(i)(1)(ii) and

§ 220.8(e)(1)(ii), to use the nutrition

standards for that majority. In the

interests of consistency and flexibility,

the Department is proposing to extend

this option to the food-based

alternatives as well.

Under the proposal, schools using the

enhanced food-based alternatives would

be permitted to plan menus using the

minimum quantity requirements

applicable to the majority of children

provided that no more than one age or

grade falls outside the requirements for

the majority of children. For example, if

a school following the enhanced foodbased menu planning alternative serves

children in grades 6, 7 and 8, the school

may, if it chooses, plan menus meeting

the nutrient levels and quantities for

grades 7 through 12 in lieu of varying

the menus and portion sizes for the

children in grade 6. This option would

eliminate the need to meet two sets of

nutrient and calorie levels as well as

portion requirements when only a

limited number of children are affected.

The Department notes that this option

will generally be applicable to schools

using the enhanced food-based

alternative since it is not needed for the

traditional food-based menu planning

alternative because of the broader range

of the groups and because schools may

use the portion sizes for the grades 4–

12 group when the school has a large

number of grades. However, under the

proposal, this option could be adopted

by schools using either food-based

menu planning alternative. This

proposed change would be found at

§ 210.10(l)(1)(ii) for the lunch program

and at § 220.8(h)(1) for the breakfast

program.

The Department believes that school

food authorities should plan menus and

offer meals that best meet the nutrient

and calorie levels for each age or grade

group of all of the children. The age/

grade groupings are geared to best meet

the recommended levels of calories and

other nutrients for a particular period in

a child’s development. However, the

Department also recognizes that

allowing the proposed option for

schools using the food-based

alternatives provides increased

flexibility.

Major Changes or New Alternatives

The second class of alternate

approaches concerns major changes to

one of the existing menu planning

systems and may be developed by either

school food authorities or State

agencies. Within this second class, the

regulations, as proposed, would require

that any major change or new

alternative developed by a school food

authority be subject to State agency

review and approval. State agency

approval is critical because major

variations developed and used only by

a school food authority need to be

carefully assessed to gauge potential

impact on the delivery of meals to

children, both nutritionally and fiscally.

Further, school food authority-level

approaches would not have the benefit

of the State agency’s expertise when

forming their approach. State agencydeveloped alternatives would be subject

to Departmental review and approval

unless there was an on-going State

agency/school food authority

partnership and enough school food

authorities intending to adopt the

alternate approach to warrant the

significant involvement of the State

agency.

Written Submissions

The Department is proposing that any

alternate approach developed by either

a school food authority or State agency

be committed to writing prior to its

implementation. The written

description must outline the intended

procedures as well as indicate how the

required elements for alternate

approaches (as proposed under

§ 210.10(l)(3) and § 220.8(h)(3) for the

lunch and breakfast programs,

respectively) will be met. For those

approaches subject to prior review, a

written submission is needed to ensure

a comprehensive review. For those

approaches not subject to prior review,

a written description needs to be

available for monitoring purposes. The

Department is not, however, proposing

any specific format or requiring a formal

plan, other than proposing that the

intended procedures and the required

elements be addressed in writing for any

proposed alternative approach. This
27168 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

provision is proposed at § 210.10(l)(2)

and § 220.8(h)(2).

State Agency-Developed Systems:

Approval Procedures

Some State agencies have developed

or intend to develop their own menu

planning alternatives for use by their

school food authorities. State agencydeveloped alternatives could involve

either extensive modifications to one of

the existing menu planning alternatives

or development of an altogether new

alternative. As mentioned above, the

Department is proposing different

approval procedures for State agencydeveloped approaches depending on

whether there is on-going, operational

support from the State agency.

For the purpose of approval, the first

type of a State-agency developed

alternate approach is one that the State

agency develops and then makes

available to its school food authorities

without on-going support and

assistance. Because the State agency

will not have any on-going operational

role in such approaches, the Department

believes independent review is essential

prior to implementation of an alternate

approach by any school food authority.

This review would ensure that the

changes or the new alternative

adequately meets program requirements

and goals. Therefore, the Department is

proposing to require State agencies to

submit this type of alternate approach to

the Food and Nutrition Service (FNS)

for review and approval before

implementation. The approval

procedures are proposed at

§ 210.10(l)(2) and § 220.8(h)(2),

respectively, for the lunch and breakfast

programs.

The second type of alternate approach

would also involve either extensive

modifications to one of the existing

menu planning alternatives or

development of an altogether new

alternative. The Department is

proposing that these approaches not be

subject to approval by FNS when the

State agency is an active and on-going

partner with the school food authorities,

if there are a sufficient number of school

food authorities adopting it to warrant

the State agency’s commitment of

resources necessary to its successful

operation and the State agency issues an

announcement notifying the public of

the alternate approach. With the State

agency’s active involvement, there is

oversight as well as the ability to

promptly adjust the policies and

procedures of the approach to ensure

efficient and effective operation and

compliance with all applicable

requirements. The Department is

proposing that these approaches must

be adopted by at least five school food

authorities within the State. The

proposed requirement for a public

announcement allows for review of the

State agency’s approach by any

concerned parents, students, program

administrators, etc. In addition to the

public announcement, the Department

considered requiring that State agencies

hold public hearings (in accordance

with established State procedures) on

these types of alternative approaches.

The Department would appreciate

comments on whether public hearings,

in addition to the public announcement,

are a more effective way to notify the

public and whether the benefits of

conducting a hearing outweigh the costs

to the State agency.

This type of State agency-developed

alternate approach is intended to allow

innovative, large-scale State agencysponsored menu planning systems to

operate without prior approval. An

example of a large-scale system that

extensively modifies current regulatory

requirements (specifically the weighting

component and software requirements

for NSMP) is the Shaping Health as

Partners in Education (SHAPE) program,

which has been successfully operated in

California for several years. Because the

SHAPE program is already operational,

the requirement for issuing a public

announcement is not applicable.

The Department emphasizes that the

different approval requirements for the

State agency-developed alternate

approaches are based on the differing

degrees of State agency involvement.

When the State agency is acting as a

partner and is routinely assisting school

food authorities and providing technical

assistance, it can, if needed, quickly

determine if implementation at the local

level is not successful or if the system

itself needs to be modified to meet the

required elements such as compliance

with the nutrition standards. In the

other situations, there is no continuous

State agency presence. Instead, the State

agency simply makes the system

available to local school food authorities

as another option from which they may

chose and would only be able judge its

effectiveness under normal review

procedures. Therefore, the Department

is proposing, at § 210.10(l)(2)(iii) and

§ 220.8(h)(2)(iii), that any State-agency

developed system is not subject to prior

FNS approval if five or more school

food authorities adopt the approach, if

the State agency maintains on-going

oversight including making adjustments

to the approach’s policies and

procedures, as needed, to ensure

compliance with the nutritional and

other meal service requirements, and if

the State agency makes a public

announcement concerning the alternate

menu planning approach prior to its

implementation by any school food

authority. Please keep in mind, though,

that all alternate approaches would be

subject to the proposed minimum

requirements discussed below.

Required Elements for Alternate

Approaches

In devising the guidelines for

reasonable approaches other than the

proposed ‘‘pre-approved’’

modifications, the Department balanced

the necessity to foster innovation and

flexibility with the equally compelling

need to maintain program

accountability administratively, fiscally

and nutritionally. The basic

consideration is that every menu

planning alternative, regardless of the

source or the level of approval, must

meet all statutory requirements. Also,

the Department is proposing to include

a limited number of guidelines that are

based on discretionary regulatory

procedures that the Department feels are

essential to effective and efficient

program management unless the

alternate approach is one of the distinct

situations with on-going State

involvement (the second type discussed

above). With this extra involvement and

oversight by the State agency, school

food authorities would be provided

additional flexibility.

Offering Fluid Milk

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

1758(a)(2)) requires that school food

authorities offer fluid milk to children

participating in the NSLP. Section

4(e)(1)(A) of the Child Nutrition Act of

1966 (CNA), (42 U.S.C. 1773 (e)(2)),

requires that a combination of foods be

served in the SBP and that breakfasts

‘‘* * * meet minimum nutritional

requirements prescribed by the

Secretary * * *’’ The provision of fluid

milk is one of the minimum nutritional

requirements established for the SBP

under § 220.8(h). Therefore, any

alternate menu planning approach must

also offer fluid milk for both the NSLP

and SBP. The provisions requiring milk

to be offered in the school programs for

any alternate approach are proposed at

§ 210.10(l)(3)(i) and § 220.8(h)(3)(i), for

the NSLP and SBP, respectively.

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,

school food authorities may adopt OVS

in the lunch program for lower grades

as well. Under section 4(e)(2) of the

CNA (42 U.S. C. 1773 (e)(2)), local
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27169

school food authorities may also

implement OVS for the SBP. OVS

encourages children to make selections

that they prefer, thus helping to reduce

plate waste. Because of the statutory

mandate, any menu planning alternative

designed by an school food authority or

State agency for use in the NSLP must

include OVS for senior high school

children. OVS will continue to be

optional at the discretion of school food

authorities in the SBP.

While OVS would continue to be

required for senior high school students,

school food authorities and State

agencies would be permitted by this

rulemaking to propose alternatives to

the OVS approaches currently permitted

in the regulations. Such approaches

must be based on the existing regulatory

OVS structures as much as possible. For

example, OVS for alternate food-based

systems must be patterned on the OVS

requirements in § 210.10(k)(6) and

§ 220.8(g)(3), while those for alternate

NSMP approaches must be based on the

requirements of § 210.10(i)(2)(ii) and

§ 220.8(e)(2)(ii).

If the existing OVS procedures in

§ 210.10(k)(6)/§ 220.8(g)(3) or

§ 210.10(i)(2)(ii)/§ 220.8(e)(2)(ii) are not

followed, the description of the

alternate approach must indicate what

age/grade groups are included, how

plate waste would be reduced and how

the meal, as taken, will provide a

reasonable level of nutrients and

calories. As discussed in more detail

below, 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 meal.

These provisions on OVS in alternate

menu planning approaches are

proposed at § 210.10(l)(3)(ii) and

§ 220.8(h)(3)(vi) for the lunch and

breakfast programs, respectively.

Nutrition Standards

As discussed earlier, the NSLA

requires school lunches to approximate,

over a week’s time, one-third of the RDA

needed by growing children of different

ages. School breakfasts must provide

one-fourth of the RDA. In addition, the

menus must comply with the

recommendations of the Dietary

Guidelines. These requirements cannot

be modified.

Therefore, any alternate menu

planning approach must ensure that

these standards, as implemented in

§ 210.10(b)(1)–(b)(4) for the NSLP and

§ 220.8(a)(1)–(a)(4) for the SBP, would

be met or exceeded for the age/grade

groups to be served. In addition, the

alternate approach must indicate how

the proposal is designed to meet these

standards. The requirements are

proposed at § 210.10(l)(3)(iii) and

§ 220.8(h)(3)(ii).

Competitive Foods

For both the NSLP and SBP, Section

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

requires regulations ‘‘* * * relating to

the service of food * * * in competition

with the [school meals] programs

* * *.’’ To implement this provision,

§ 210.11(b) and § 220.12(a) prohibit the

sale of foods of ‘‘minimal nutritional

value’’ in the cafeteria area during the

service of meals. 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. This

restriction is proposed at

§ 210.10(l)(3)(iv) and § 220.8(h)(3)(iii)

for the lunch and breakfast programs,

respectively.

Crediting Foods Under Food-Based

Type Approaches

Paragraphs (k)(3)–(k)(5) and (m) of

§ 210.10; § 220.8(g)(2) and (i); and the

Appendices to Parts 210 and 220

provide the basic crediting policies for

food items offered in the school meals

programs for food-based menu planning

alternatives. These crediting policies are

expanded upon in FNS instructions and

guidance. This proposal would require

that any alternate food-based menu

planning approaches follow the existing

food crediting policies for school meals.

The Department’s standards for

crediting food items are designed to

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 or its

equivalent to count toward meeting the

meal requirements.

To be credited, foods must be both

present in the minimum required

quantities and identifiable as at least

one of the required food components of

the meal pattern (meat/meat alternate,

fruits/vegetables, grains/breads and

fluid milk). These foods may be served

as single food items or as combinations

in recipes or in commercially processed

foods. To assist in the identification of

the definition of the basic foods, the

Department relies on government and

industry standards of identity and/or

specifications. These standards are

essential to ensuring that the individual

meal merits Federal reimbursement and

that the meal service, over time,

complies with the programs’ nutrition

standards. Therefore, the Department is

proposing at § 210.10(l)(3)(v) and

§ 220.8(h)(3)(v) that the minimum

quantities established to credit food

items as components under the foodbased menu planning systems be

adhered to in any food-based menu

planning alternate approach.

Identification of a Reimbursable Meal

The concept of a reimbursable meal is

essential to program integrity. Sections

210.10 and 220.8 of the regulations

establish definitions of a reimbursable

meal for the four menu planning

alternatives currently recognized by the

NSLA. Under the traditional meal

pattern and the enhanced food-based

menu planning system for lunches, the

school food authority must offer

minimum quantities of a meat/meat

alternate, a grain/bread item, two

separate fruits/vegetables and fluid milk

as a beverage. This requirement is found

at § 210.10(k). Under NSMP and

ANSMP, the school must offer an

entree, fluid milk and at least one

additional menu item for lunches. This

requirement is found at § 210.10(i)(2)(i)

for the NSLP. The parallel requirements

for the SBP are at § 220.8 (e) and (g).

This proposal would require that any

alternate approach comply with the

current requirements for reimbursable

meals to the extent possible. When the

existing procedures are not followed,

the proposed alternate approach must

detail what constitutes a reimbursable

meal, including the number and type of

item (and if applicable, the quantities

for each item) and how a reimbursable

meal is to be identified at the point of

service by the children, the cashiers,

and any reviewers. The proposals

appear at § 210.10(l)(3)(vi) and

§ 220.8(h)(3)(v), respectively, for the

school lunch and breakfast programs.

Monitoring Compliance

Section 210.18 of the regulations

establishes methods for determining if

school food authorities are meeting the

administrative requirements for the

school meals programs while § 210.19

provides for reviewing compliance with

the nutrition standards. In determining

the essential elements for any alternate

approach, the Department believes that

these monitoring aspects must be

incorporated so that the State agency

can determine if reimbursable meals are

being offered, accepted, and properly

counted and if the meal service is in

compliance with all of the nutrition and

administrative standards.

The Department expects that, in most

cases, alternate approaches can be

monitored within the existing criteria

for both coordinated review effort (CRE)

and nutrition reviews. As discussed

below, some aspects of Performance

Standard 2 in § 210.18 must be modified
27170 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

to take into account the flexibility for

alternate approaches. However, the

Department does not believe that the

procedures for conducting CRE reviews

will need to be revised in order to

accommodate alternate approaches.

Therefore, this rule would require, in

§ 210.10(l)(vii) and § 220.8(h)(3)(vi), that

the alternate approach be subject to CRE

reviews under the current procedures

provided in § 210.18.

However, in some cases, the proposed

alternate approach may not lend itself to

the established nutrition review

methods. Therefore, to allow the State

agency to ensure that an alternate

approach can be reviewed adequately

for compliance with the nutrition

standards, any alternate approach must

include either an explanation of how

the alternate approach could be

monitored within the existing criteria in

§ 210.19 or a comprehensive nutrition

monitoring plan that the State agency

could follow. As part of this plan, the

alternate approach must include a

description of the records it will

maintain to document compliance with

administrative and nutrition

requirements. This provision is

proposed at § 210.10(l)(3)(vii) and

§ 220.8(h)(3)(vi) for both the

administrative and nutrition review

aspects. Conforming amendments are

also proposed to § 210.19(a) and are

discussed in greater detail later in this

preamble.

Weighted Averages for NSMP/ANSMP

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

require school food authorities using

NSMP or ANSMP to conduct nutrition

analyses by weighting all foods planned

as part of the reimbursable meal service.

This weighting is done according to the

frequency with which each food is

actually offered. The purpose of

weighting is to assist in ensuring that

meals actually offered to children meet

the nutrition standards. The Department

acknowledges that weighted averages

are not the only way to ensure

compliance with the nutrition

standards. In fact, in order to make the

transition to the updated menu planning

methods easier and to ensure that every

avenue for promoting sound nutrition is

explored, the Department has

authorized temporary waivers of this

regulatory requirement. The waivers

allow the Department the opportunity to

evaluate weighted and unweighted

averages to determine their accuracy in

indicating determinations of compliance

with the nutrition standards. The

Department believes that this temporary

postponement through a State agency

waiver is the appropriate way to ease

implementation and to permit further

evaluation of this requirement. As part

of this evaluation process, the

Department is particularly interested in

receiving comments on the use of a

weighted nutrient analysis versus

nonweighted approaches. Comments

from operators using nutrient analysis

and their experiences with weighting

would be especially helpful. The

Department would also like comments

from State agency reviewers and their

experiences with weighting when

evaluating meal services.

However, until the Department

determines that alternatives to weighted

averages adequately ensure that meals

comply with the nutrition standards,

weighted averages continue to be

required for NSMP systems other than

those for which a waiver has been

granted. Accordingly, the Department is

proposing to require compliance with

the weighting requirements for alternate

NSMP-type approaches. However, the

Department is proposing to provide

added flexibility in those instances in

which the State agency has developed

the alternate approach and is a partner

with at least five school food authorities

and maintains on-going oversight of the

operation and evaluation. The level and

consistency of the State agency’s

involvement coupled with a more rapid

response to problems in order to make

needed adjustments allows for further

innovation. These provisions are

proposed at § 210.10(l)(3)(viii) and

§ 220.8(h)(3)(vi).

Approved Software for NSMP and

ANSMP

Sections 210.10(i)(4) and 220.8(e)(4)

require menu planners using NSMP or

ANSMP to conduct or to have their

analyses conducted using software that

incorporates the National Nutrient

Database for Child Nutrition Programs

and is approved by FNS. The software

must meet the minimum requirements

established by FNS such as having the

capability to perform all functions

required after the basic data has been

entered, including calculating weighted

averages, and the optional combining of

the analyses of the NSLP and SBP. The

Department is aware that there are many

nutrition software packages available;

however, many of these are for

individuals or for clinical settings such

as hospitals. The software approved by

FNS is designed to meet the needs of

school food service professionals and

fulfills two essential criteria—the ability

to perform all the requirements of the

regulations and the achievement of

uniform results. The Department also

notes that the number and variety of

software packages approved to date

ensures that school food authorities

have extensive flexibility in choosing a

package that best meets their individual

needs. Therefore, this proposal would

require, at § 210.10(l)(3)(viii) and

§ 220.8(h)(3)(vii), that any alternate

approach use approved software.

Again, however, the Department is

proposing to allow modification of the

required specifications for software for

any alternate approach under the same

limited circumstances allowing for

modification of weighted analysis. In

those situations in which the State

agency developed the alternate

approach and remains an active partner

and five or more school food authorities

adopt the alternate approach, the

Department is proposing, at

§ 210.10(l)(3)(viii) and § 220.8(h)(3)(vii),

to permit the use of software which does

not meet the regulatory requirements.

While this means that the software

would not need to incorporate the

National Nutrient Database nor would it

be required to have prior FNS approval,

the alternate approach would still need

to meet all the nutrition standards.

Again, the Department believes that the

on-going State agency oversight

provides sufficient assurance that any

software will provide appropriate

nutrient analysis and, to the extent that

deficiencies are identified, that they will

be rapidly addressed.

The Department also wishes to

emphasize that weighted analyses and

standard software packages do not, in

and of themselves, determine the kinds

and amounts of foods provided. Rather,

they are fundamentals in the internal

monitoring system which enables

schools, school food authorities, and

State agencies to measure the success of

the food service in complying with the

nutrition standards. Consequently,

modification of these requirements,

without substantial care and

involvement by the State agency, may

undermine the accuracy of the nutrition

analysis and compromise the ability of

menu planners to make necessary

adjustments. This is the basis for the

Department’s decision to not apply the

weighting and software specification

requirements to those situations in

which there will be substantial State

agency involvement and oversight.

Monitoring Requirements for

Compliance With the Nutrition

Standards

The Department is proposing to

clarify some aspects of the nutrition

monitoring requirements in order to

ensure appropriate State agency

oversight of all menu planning

alternatives. In addition, some

conforming amendments are proposed

due to the reinstatement of the
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27171

traditional food-based menu planning

alternative and the availability of

alternate approaches.

Monitoring Procedures for the

Traditional System and for Alternate

Approaches

The current monitoring provisions for

the food-based and nutrient standard

menu planning alternatives are found at

§ 210.18 and § 210.19. As discussed

earlier, any alternate approach must be

capable of being monitored under

§ 210.18. In addition, if the alternate

approach cannot be monitored under

§ 210.19, there must be a description of

alternate monitoring procedures to

ensure compliance with the fiscal,

administrative and nutrition standards.

This proposed rule would amend

§ 210.18 and § 210.19 to make clear that

the existing monitoring requirements

apply to the traditional food-based

menu planning alternative as well as to

the enhanced food-based and nutrient

standard menu planning systems. In

addition, technical amendments are

made to modify the terminology in

§ 210.18 and § 210.19 related to

Performance Standard 2 which

establishes review criteria to assure that

the lunches served by schools are

reimbursable. In other words, any

school lunch must contain whatever

meal elements that are required for

reimbursable lunches under each of the

menu planning alternatives. In order to

clarify that all the various menu

planning approaches are subject to

Performance Standard 2, technical

amendments are proposed to

§ 210.18(b)(2)(ii), (g)(2), and (i)(3)(ii) and

to § 210.19(c)(6)(i) to reference the

various terms used to stipulate the

elements in a reimbursable meal.

Finally, § 210.19 would be amended

to make clear that the nutrition review

procedures for food-based and nutrient

standard alternate approaches are the

same as those for food-based and

nutrient standard menu planning

systems, respectively, except for those

alternate approaches that do not lend

themselves to existing nutrition review

procedures. In those cases, the nutrition

review procedures are those review

procedures developed under § 210.10(l).

Adjustments to Review Periods

The Department is proposing to adjust

the review period for nutrition reviews.

Currently, paragraphs (a)(1)(i) and (ii) of

§ 210.19 stipulate that the State agency

is to review the school’s nutrition

analysis or conduct an independent

analysis for the last completed week

prior to the review. The intent of this

provision was to ensure that the

analysis reflected the current state of the

meal service. However, some State

agencies have noted that, under CRE, as

detailed in § 210.18, State agencies

select the month prior to the month of

the review as the sample period.

Consequently, State agencies which

would elect to conduct nutrition

reviews concurrently with CRE reviews

will likely need to look at two different

review periods during the same visit.

Therefore, in the interests of efficiency,

this proposal would permit reviewers to

conduct the assessment of compliance

with nutrition standards for any week of

the current school year prior to the

month of the review. However, the week

selected must continue to represent the

current state of the meal service. The

State agency could select, for example,

a week for the nutrition review that was

in the same month in which a CRE was

scheduled. The Department believes

that this proposed provision will still

allow State agencies to determine

whether the program is in compliance

with the nutrition standards and, if

necessary, prescribe appropriate steps

for improvements by requiring review of

a relatively current period that is typical

of the on-going meal service. This

change is proposed at § 210.19(a)(1)(i).

Extent of Reviews

Another proposal would amend

§ 210.19(a) to clarify that, during the

review cycle, State agencies must

review at least one school for each type

of menu planning alternative used by

the school food authority. For example,

if eight schools in a school food

authority use the traditional meal

pattern, three use the enhanced foodbased system and five use NSMP, the

State would select at least one school

from each category. The Department

recognizes that, in some cases, this

requirement would result in more

schools being visited for nutrition

compliance than are required to be

reviewed under CRE. The Department

believes, however, that this coverage is

essential to ensure that the school food

authority is following all alternatives

correctly. For example, a school food

authority may be achieving great

success with the enhanced food-based

system but may not be conducting

NSMP properly. The only way for the

State agency to identify this problem,

provide appropriate technical assistance

and require corrective action is to

examine the school food authority’s

experience with all alternatives in use.

This amended is proposed at

§ 210.19(a)(1).

The proposal would also clarify that

State agencies are required to perform

the necessary nutrition review on only

the lunch program unless the school

food authority uses a particular menu

planning alternative only for the

breakfast program. For example, if all of

the schools in a school food authority

use either NSMP or the enhanced foodbased system for lunch, and at least

some of the schools use the traditional

food-based menu planning alternative

for breakfast, the State agency would

need to conduct two lunch reviews (one

of a school using NSMP and one of a

school using the enhanced food-based

system) and one review of a breakfast

program which uses the traditional meal

pattern. However, if all three of these

alternatives are used for the lunch

program in the school food authority, no

review of the breakfast program would

be needed. The Department cautions,

however, that if the lunch review

indicates that the school food authority

needs technical assistance and/or

corrective action, the State agency may

wish to review a breakfast program as

well to determine if the school food

authority needs to take specific

corrective action for that program as

well. In these cases, the review of the

breakfast program could be done either

at the time of the initial lunch review or

as part of any follow-up needed to

further evaluate the results of technical

assistance or corrective action.

Conforming Review Cycles

Finally, the Department is proposing

a minor technical amendment to

§ 210.19(a)(1)(i) to make the cycle for

nutrition reviews consistent with the

cycle for administrative reviews under

CRE. The SMI rule established a fiveyear cycle for reviews of nutrition

compliance and intended that cycle to

run concurrently with the CRE cycle so

that those States electing to conduct

nutrition reviews at the same time as

administrative reviews could do so

efficiently. The regulation currently

stipulates that the first five-year cycle

would begin 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 begin 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. Therefore, the two

review cycles would be out of sequence

for State agencies which implement the

regulations before School Year 1998/

1999.

While State agencies are not required

to conduct nutrition reviews at the same

time as administrative reviews, the

Department proposes to make the two
27172 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

review cycles coincide so that State

agencies may avail themselves of this

option efficiently. To achieve this goal,

therefore, the Department is proposing

to establish an initial cycle of seven

years for nutrition reviews, from July 1,

1996 through June 30, 2003. Thereafter,

review cycles would be five years in

length. This expanded cycle would

allow State agencies more flexibility

during the implementation phase to

complete reviews and provide schools

with necessary assistance.

The Department notes that the

extended time frame for completing

nutrition reviews increases the need for

State agencies to identify school food

authorities that may have menu

planning difficulties in order to

schedule visits to them as early as

possible in the cycle. The Department

also would like State agencies to

comment on any increased potential for

noncompliance that might result from

this extension and whether or not the

Department should consider

establishing intermediate review goals

within the cycle.

Updating the Dietary Guidelines and

Other Technical Changes

Section 9(f)(1)(A) of the NSLA

requires that schools offer meals

consistent with the goals of the ‘‘most

recent Dietary Guidelines for

Americans.’’ The June 13, 1995, SMI

rulemaking incorporated the 1990

edition of the Dietary Guidelines as

program requirements because they

were, at that time, the latest official

version. The Department indicated,

however, that later editions would be

incorporated to reflect any revisions to

the recommendations. In December

1995, the Department, in partnership

with the Department of Health and

Human Services, issued the 1995

edition. While there were no substantive

differences between the 1995 edition

and the 1990 edition, there were some

minor language revisions. Therefore, the

Department is taking this opportunity to

propose amending § 210.10(b)(3) and

§ 220.8(a)(3) to incorporate the minor

wording changes of the 1995 guidelines,

and to change references to the 1990

guidelines to 1995.

The 1995 Dietary Guidelines also

include the suggestion that the diets of

children between the ages of two and

five should be gradually altered so that,

by age five, they receive no more than

30 percent of their calories from fat.

Since the Dietary Guidelines do not

treat this suggestion as a formal

recommendation, the Department is not

incorporating it into § 210.10(b)(3) or

§ 220.8(a)(3), where the Dietary

Guidelines’ recommendations are

enumerated. However, a footnote

containing this information would be

added to the charts in § 210.10(c)(1),

§ 210.10(c)(2), § 210.10(d), § 220.8(b)(1),

§ 220.8(b)(2) and § 220.8(c)(1). The

Department is also aware that the RDA

are in the process of being reviewed and

that an update is scheduled to be

released in 1999. At that time, the

Department will propose any needed

revisions to the key nutrient and calorie

levels.

The name of the database used in the

nutrient analysis software has been

changed from the ‘‘National Nutrient

Database for the Child Nutrition

Programs’’ to the ‘‘Child Nutrition

Database.’’ This proposal would,

therefore, update the references to the

database in § 210.10(i) and § 220.8(e).

It was brought to the Department’s

attention that there was a misstatement

in the preamble of the final regulation

published on June 13, 1995. The

regulation, Child Nutrition Programs:

School Meal Initiatives for Healthy

Children, was published in the Federal

Register at 60 FR 31188. The erroneous

statement at 60 FR 31203 was:

* * * program regulations (§ 210.11(a) and

§ 220.12(a)) prohibit the sale of certain foods

of minimal nutritional value in the food

service area between the start of school and

the last lunch period of the day.

The correct policy is contained in

§ 210.11(b) for the NSLP. The correct

policy is:

Such rules or regulations [established by

State agencies or school food authorities]

shall prohibit the sale of foods of minimal

nutritional value, as listed appendix B of this

part, in the food service areas during the

lunch periods.

(Emphasis added)

This policy may found for the SBP at

§ 220.12(a).

Although the statement in the

preamble was incorrect, the actual

regulatory language contained in

§ 210.11 (b) was correct. The

Department regrets any confusion this

error may have caused.

Appendix to Preamble—Regulatory Cost/

Benefit Assessment

1. Title: National School Lunch Program

and School Breakfast Program: Additional

Menu Planning Alternatives.

2. Background:

a. Need for Action: Public Law 104–149,

the Healthy Meals for Children Act, amended

the National School Lunch Act by expanding

the number of alternatives available to plan

menus for the school meals programs.

Section 9(f) of the National School Lunch Act

was amended to allow schools to continue

using the meal planning system in effect in

School Year 1994–95 as well as the other

meal planning alternatives already available.

In addition, the Act was amended to allow

schools to use ‘‘* * * any reasonable

approach, within guidelines established by

the Secretary * * *’’.

The menu planning system in effect in

School Year 1994–95 was the ‘‘traditional

pattern’’ which has been in use for many

years, and which requires four components

(meat/meat alternate, breads/grains, fruits/

vegetables and milk) and five items. Because

this alternative was to be deleted from the

regulations at the end of the implementation

period (July 1, 1998), this proposal would

reinstate this alternative permanently. In

addition, this proposal would establish the

guidelines for ‘‘any reasonable approach’’ to

ensure that schools continue to serve

reimbursable meals and provide proper

accountability for Federal reimbursement

while still having the flexibility to design a

menu planning alternative that meets their

particular needs.

Before the Department issued a proposal to

implement Public Law 104–149, Public Law

104–193, the Personal Responsibility and

Work Opportunity Reconciliation Act of 1996

was enacted on August 22, 1996. This law

further amended the National School Lunch

Act to mandate that school lunches provide,

over a week, one-third of the Recommended

Dietary Allowances (RDA) and that school

breakfasts provide one-fourth of the RDA.

These requirements are, however, already

included in the school programs’ regulations.

b. Affected parties: The entities affected by

this proposal are State agencies, school food

authorities, the nation’s school children, and

the Food and Nutrition Service.

c. Promotes the President’s Priorities: This

proposal would promote the President’s

commitment to flexibility for program

administrators while continuing to support

the objectives of providing meals to the

nation’s school children that meet the Dietary

Guidelines for Americans and other

established nutrition standards.

3. Statutory Authority: Public Law 104–

149.

4. Cost-Benefit Assessment of Economic

and Other Effects:

Reinstatement of the Traditional Meal

Pattern

Background: The proposed regulation

would reinstate the meal pattern in effect in

School Year 1994–1995 as one menu

planning alternative. The meal pattern would

be incorporated into the section of the

regulation establishing the food-based menu

planning alternatives and would be entitled

the ‘‘traditional food-based menu planning

alternative.’’ The food-based alternative

implemented in the June 5, 1995, final rule

would be renamed ‘‘the enhanced food-based

menu planning alternative.’’ The provision

would provide a table with the minimum

levels of nutrients (calories, protein, calcium,

iron, Vitamin A, and Vitamin C) for the age/

grade groups of the meal pattern. Further, the

provision makes minor conforming

amendments to allow for monitoring

compliance with the nutrition standards for

this additional menu planning alternative.

Effects of Reinstating the Traditional Meal

Pattern

Benefits: The provision permanently

reinstating the meal pattern in effect during
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27173

1Burghardt, JC, A. Gordon, N. Chapman, P.

Gleason, T. Fraker (1993). The School Nutrition

Dietary Assessment Study: School Food Service,

Meals, and Dietary Intakes. October 1993.

School Year 1994–1995 will allow schools to

use a meal pattern with which they are

familiar. Extensive experience with the

traditional meal pattern has allowed schools

to successfully develop menus that meet

program requirements and are popular with

students. The reinstatement of the traditional

meal pattern provides schools with an

additional menu planning option and even

greater flexibility in meeting the nutritional

needs of students.

The rule extends nutrition monitoring

provisions pertaining to reviews of the

enhanced food-based menu planning option

to reviews of schools using the traditional

meal pattern. School lunches are required to

provide, over a week’s time, one-third of the

RDA for key nutrients (protein, calcium, iron,

vitamin A and vitamin C) and calories

needed by growing children of different ages.

School breakfasts are required to provide,

over a week’s time, one-fourth of the RDA for

key nutrients (protein, calcium, iron, vitamin

A and vitamin C) and calories needed by

growing children. In addition, schools should

be making progress towards providing meals

which comply with the Dietary Guidelines,

including the recommendations that no more

than 30 percent of calories come from fat and

that saturated fat be limited to less than 10

percent of calories. The extension of this

provision to the traditional food-based meal

planning systems will ensure that children in

schools using this system will receive meals

of comparable nutritional quality as children

in schools using the enhanced food-based

menu plan. This provision does not require

any additional burden of school food

authorities as regulations require any menu

planning system to provide comparable

levels of RDAs for key nutrients and comply

with the Dietary Guidelines.

Costs: The 1993 USDA School Nutrition

Dietary Assessment Study (SNDA) assessed

the nutritional quality of lunches served

under the traditional meal pattern. SNDA

found that the amount of nutrients in the

average school lunch provided under the

traditional meal pattern exceeded the

standard of one-third of the daily RDA for the

age groups at the elementary, middle, and

high school level for most nutrients.

However, the average percentage of food

energy from total fat offered in school

lunches was 38 percent, compared with the

Dietary Guideline goal of not more than 30

percent; the percentage from saturated fat

was 15 percent, compared with the Dietary

Guideline of less than 10 percent.1 In

addition, the Continuing Survey of Food

Intake by Individuals (CSFII), 1989–91 found

that school-age children have average daily

intakes of 33.7 to 34.7 percent of calories

from fat, and 12.6 to 13.3 percent of calories

from saturated fat depending on age-sex

group.

The SNDA and CSFII findings heightened

awareness of the need to improve the

nutritional quality of school meals. In

response the Department initiated the School

Meals Initiative for Healthy Children, the

first program-wide reform of the school meals

program since its establishment in 1946.

Since the introduction of the School Meals

Initiative the Department has provided

training and technical assistance designed to

assist school food service personnel in

implementing the Dietary Guidelines. FNS

has sponsored training on the preparation of

healthier meals; provided recipes which are

lower in fat and sodium; and issued grants

to assist State agencies in establishing

statewide training systems to assist local

agencies in implementing the Dietary

Guidelines. The Department has also

increased efforts to provide lower fat

commodities to local school districts.

Even with increased efforts by the

Department, State agencies and school food

authorities to provide schools with the

knowledge and skills necessary to

successfully implement the Dietary

Guidelines, the possibility still exists that it

might prove difficult for some schools using

the traditional food-based meal pattern to

comply with the recommendations. In these

instances, it may be necessary for the school

food authority or the State agency to provide

further training of the school food service

personnel to enable them to successfully

develop meal patterns which comply with

the Dietary Guidelines.

The State agency will be responsible for

monitoring progress towards meeting the

Dietary Guidelines and nutrition standards

and for making adjustments in procedures

that schools follow in order to ensure

effective progress toward eventual

compliance with the updated nutritional

requirements. Should a number of schools

using the traditional food-based menu

pattern encounter difficulty in meeting the

Dietary Guidelines, the State agency will

need to cooperate with the school food

authority in designing corrective action to

rectify the deficiencies. Additionally, the

State agency will need to monitor the

execution of corrective action taken by the

school food authority to ensure that progress

is being made towards meeting the Dietary

Guidelines.

Since most State agencies used the1996–

1997 school year to train staff to conduct the

nutrient analyses, the number of analyses

that were actually completed was fewer than

expected. As a result, there is no data

available on the number of school food

authorities that fail to meet the nutrient

standards and need to take corrective action.

Any Reasonable Approach to Meal Planning

Benefits: Public Law 104–149 permits

school food authorities to use ‘‘any

reasonable approach’’ to menu planning not

specifically delineated in the regulations.

The law makes it clear, however, that

approval of other ‘‘reasonable approaches’’

must be in accordance with guidelines

established by the Secretary. In developing

appropriate guidelines, the Department

considers that there are two classes of

additional reasonable approaches. The first

class of reasonable approaches consists of

alternatives which are essentially relatively

minor modifications to one or another of the

existing menu planning systems. The second

class of alternatives would involve unique

proposals that depart significantly from the

existing systems.

Minor Modifications

The Department believes that minor

modifications to existing meal planning

systems do not pose significant questions

about nutritional content or program

integrity. Therefore, to reduce unnecessary

paperwork, the Department is proposing to

authorize State agencies to permit their

school food authorities to choose any of the

following adaptations without applying to

the State agency for approval. The decision

to authorize any or all of these modifications

rests entirely with the State agency. State

agencies may establish a general policy

allowing school food authorities to adopt any

or all of these approaches without prior

approval or chose to review requests from

school food authorities. The preapproved

approaches are:

1. Weekly Meat/Meat Alternate Quantity

Standard: Schools using one of the foodbased menu planning systems would be

allowed the flexibility to vary the quantity of

the meat/meat alternate on a daily basis as

long as the total amount served over the

course of the school week equals the

minimum daily quantity multiplied by the

number of serving days in the week. Schools

would still be required to serve a minimum

of one ounce of meat/meat alternate daily.

2. Flexible Age-Grade Groupings for FoodBased Systems: Under the analysis-based

menu planning options, if only one age or

grade in a school is outside the established

RDA and calorie requirements for the

majority of students, schools are permitted to

use the nutrition standards for that majority.

In the interests of consistency and flexibility,

the Department is proposing to extend this

option to the food-based systems as well.

Innovative Approaches

The second class of other reasonable

approaches involves innovative systems that

are not currently established in program

regulations and guidance. These innovative

menu planning systems could be developed

by school food authorities for use in their

schools, or developed by State agencies and

made available to their school food

authorities. The Department envisions two

approaches that State agencies could take in

developing menu planning systems. It would

be possible for a State to develop a unique

menu planning system and then refrain from

being involved in the operation or evaluation

of the system. In these cases, the system

would have to be submitted to the

Department for approval before

implementation. The second scenario

involves systems developed by the State,

used by multiple school food authorities (at

least five) within the State, and the State

agency remains an active partner in the

operation and evaluation of the system on an

ongoing basis and issues an announcement

notifying the public of the alternate menu

planning approach. In this case, the State

would not be required to submit the system

to the Department for approval prior to

implementation.

Any meal planning system proposed by a

school food authority or a State agency
27174 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

would have to be assessed for its potential

impact on the delivery of meals to children,

both nutritionally and fiscally. To achieve

these goals, the Department is proposing to

establish a framework and criteria for

consideration and approval of such requests.

Any approach developed by a State agency

or a school food authority would need to

ensure that the following areas, which are

critical to the proper and efficient operation

of the program, be satisfied:

1. Identification of Reimbursable Meals:

The definition of a reimbursable meal is

essential to program integrity. The four menu

planning systems specifically recognized by

the statute have specific requirements for a

reimbursable lunch or breakfast. In keeping

with these principles, the school food

authority would need to outline, in any

proposed menu planning alternative, what

constitutes a reimbursable meal; how these

will be identified by the students in the line

and by food service staff at the point of

service; and how reviewers will be able to

document compliance. Likewise, the State

agency must determine that the reimbursable

meal will offer sufficient nutrition on a daily

basis to justify Federal reimbursement.

2. Provide for Offer versus Serve: When

developing a menu planning alternative,

school food authorities must provide for offer

versus serve (OVS), as appropriate. Section

9(a)(4) of the NSLA requires that schools

implement OVS in the NSLP for senior high

students; at local option, school food

authorities may adopt OVS in the lunch

program for lower grades as well. Local

school food authorities may also implement

OVS for the SBP. The purpose of OVS is to

encourage students to make selections that

they prefer, thus helping to reduce plate

waste. Therefore, because of the statutory

mandate, any menu planning approach

proposed by an school food authority or State

agency must include OVS for senior high

students at a minimum.

3. Compliance with Nutrition Standards:

By law, school lunches are required to

provide, over a week’s time, one-third of the

RDA for key nutrients and one-third of the

calories needed by growing children of

different ages. In addition, the meals must

comply with the recommendations of the

Dietary Guidelines. School breakfasts must

provide one-fourth of the RDA and calorie

needs and also must comply with the Dietary

Guidelines. Under no circumstances can

these requirements be modified. Therefore,

any request to employ an alternate menu

planning approach would need to

demonstrate, to the satisfaction of the State

agency, that the menus would continue to

meet or exceed these standards. Furthermore,

because the RDA can vary by age and/or

grade group, the school food authority would

need to specify which age/grade groups will

be served and indicate what the appropriate

RDA and calorie levels are for each age/grade

group.

4. Ability to Monitor: Any alternate

approach must be capable of being monitored

by the State agency to determine that

reimbursable meals are being offered,

accepted, and properly counted and that the

meal service is in compliance with all of the

nutrition standards.

While the Department wishes to provide

school food authorities with maximum

flexibility to develop alternate menu

planning approaches, this proposed rule

would prohibit State agencies from

approving modifications to the existing four

menu planning options beyond those

discussed above as automatic options. The

Department considers that certain

requirements governing these options must

remain intact except for limited exceptions

for special State-wide systems. Consequently,

the following operational components of the

established menu planning systems may not

be modified except as discussed below:

1. Weighted Averages for NSMP/ANSMP:

The regulations require schools employing

NSMP or ANSMP to conduct their analyses

by weighting all foods planned as part of the

reimbursable meal service according to the

amount of each food actually intended to be

produced, based on production records or

experience. However, in order to make the

transition to updated menu planning

methods as smooth as possible and to ensure

that every avenue for promoting sound

nutrition while minimizing burden is

explored, the Department authorized a delay

in implementing this regulatory requirement

for all schools adopting NSMP until the

Department has the opportunity to evaluate

the ability of weighted and unweighted

averages to provide accurate determinations

of compliance with the nutrition standards.

2. Use of Approved Software for NSMP and

ANSMP: The regulations also require menu

planners electing to use NSMP or ANSMP to

conduct or to have their analyses conducted

using software approved by the Department.

The Department is aware that there are many

nutrition software packages available;

however, many of these are for individuals or

for clinical settings such as hospitals. The

software approved by USDA is designed to

meet the needs of school food service

professionals and fulfills essential schoolbased needs.

3. Crediting Requirements for Food-Based

Alternatives: This proposed rule would

prohibit State agencies from disregarding any

of the Department’s crediting policies for

schools electing to use a food-based menu

planning system. The Department’s standards

for crediting food items are designed to

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 or its equivalent to count toward

meeting the meal requirements, standards of

identity and/or specifications.

4. Foods of Minimal Nutritional Value: The

Department also wishes to emphasize that

States may not, under any circumstances,

approve the sale of foods of minimal

nutritional value as defined in program

regulations.

However, the Department is also proposing

that, in certain limited situations, menu

planning systems, supported by the

knowledge and resources of a State agency,

can operate with modifications beyond those

available to school food authorities while

maintaining the necessary control over the

nutritional content of their meals. Therefore,

this proposal would authorize modification

in some menu planning systems of the

provisions on weighted nutrient analysis and

approved software, provided that: these

systems are operated under policies and

procedures developed or adopted by a State

agency; the State agency remains an active

participant in the operation and evaluation of

the project on an ongoing basis; and the

system is used by multiple school food

authorities (at least five) within the State and

the State agency issues a public

announcement concerning the alternative

menu planning approach.

Effects of Implementing ‘‘Any Reasonable

Means’’

Benefits: The provision permitting the

use of ‘‘any reasonable approach’’ to

menu planning will provide school food

authorities with even greater flexibility

in developing a menu service which

meets the needs and preferences of local

children. The rule contains a provision

allowing school food authorities to

make minor modifications to existing

meal planning systems. The rule also

contains provisions which allow school

food authorities or States to make

extensive modifications to existing

menu planning systems or to develop

innovative systems that are not

currently established in program

regulations and guidance.

The rule proposes that certain minor

modifications by a school food authority to

one or another of the existing meal systems

would be allowed, at the discretion of the

State agency, without prior approval. An

example of the additional flexibility to be

gained by individual schools is the ability to

vary the amount of meat/meat alternate

served on daily basis. This provision

provides schools with an option that allows

them to produce a more appealing entree or

to reduce the amount of plate waste while

still meeting the minimum weekly serving

requirement of a meat/meat alternate.

A school food authority desiring to make

more than minor modifications would be

permitted to develop a proposal which

differs significantly from the existing meal

planning systems. The authority to develop

their own menu planning systems will allow

school food authorities to take into

consideration any unique local food

preferences or dietary needs when planning

such systems.

The provisions of this rule allow State

agencies to develop their own menu planning

alternatives and make them available to local

school food authorities. State agencies will

have the opportunity to develop, in

consultation with school food authorities

within their State, a menu planning system

designed to meet the specific needs of the

children of their State rather than one

designed for the tastes and needs of the

national student population.

The rule allows such a menu planning

system to use alternate weighting procedures

and software while continuing to operate

within normal regulatory authority, provided

that the system is used by at least five school

food authorities within the State, the State

agency remains an active participant in the
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27175

operation and evaluation of the system on an

ongoing basis and notifies the public about

their alternative menu planning approach.

This provision would provide State agencies

with increased flexibility in the selection of

software used to conduct the nutrient

analyses.

Costs: While it is entirely possible that

local menu planners may devise systems

which produce nutritious meals which are

appealing to children, these innovative

systems are, by their very nature, untested

and subject to unforeseen consequences. Any

unique meal planning system will be

required to serve meals which provide the

same level of key nutrients as any of the

prescribed meal patterns. It is possible that

a locally developed system might have

difficulty complying with the

recommendations. In these instances, school

food authorities and States might find it

necessary to provide additional training and

technical assistance to those schools failing

to meet the nutrition requirements. However,

it is also reasonable to expect that innovation

may result in lower costs methods being

devised. In either case, the nutrient standards

remain the same; and the anticipated impacts

on agriculture and the children’s health are

verifiable.

As noted previously, the percentage of total

calories from fat consumed by school aged

children in the late 1980’s and early 1990’s

was above what was recommended by the

Dietary Guidelines for Americans. Because

States will conduct reviews once every five

years, several years may pass before problems

in meeting the nutritional guidelines will be

detected. If schools fail to meet the nutrient

standards using innovative systems, it is

possible that the nutritional quality of some

school meals may be deficient for a period of

up to five years. However, FNS has anecdotal

evidence that school food authorities have

made improvements in their ability to meet

the Dietary Guidelines.

As with the traditional meal pattern, the

State agency will still be responsible for

monitoring the progress these locally

developed systems make toward complying

with the Dietary Guidelines and nutrition

standards. Should any such system or

systems fail to comply with these standards,

the State agency would need to work with

the school food authorities to devise

corrective action that would ensure that the

menu planning systems would make progress

towards, and eventually comply with, the

Dietary Guidelines. If locally developed

systems prove to have difficulty meeting the

required nutritional requirements, the State

agency would be faced with an increased

monitoring burden without a concomitant

reduction in any other monitoring burdens.

At this time it is impossible to determine

the additional burden that will be required of

State agencies as a result of school food

authorities developing their own menu

planning systems and failing to meet the

nutrition standards. As stated earlier, the

1996–1997 school year is the first one in

which States have been required to conduct

the nutrient analyses so no data is available

as to the number of schools failing to meet

the standards. Additionally, FNS has no

indications as to how many local agencies

might choose to develop their own menu

planning systems. It is also impossible to

determine the additional nutritional risk

placed on children in schools that have

difficulty meeting the Dietary Guidelines.

However, because there is a certain amount

of uncertainty regarding the ability of schools

to meet the nutritional requirements under

innovative systems, FNS acknowledges that

nutritional risk exists.

Miscellaneous Monitoring Provisions

Background: The Department is also

proposing a number of amendments to the

requirements for nutrition monitoring

designed to ensure appropriate State agency

oversight of all menu planning alternatives

and to clarify some existing provisions.

First, the nutrition monitoring provisions

pertaining to reviews of the enhanced foodbased menu planning option would be

extended to reviews of schools using the

traditional meal pattern and other reasonable

approaches. As part of these reviews, the

State agency must conduct a nutrient

analysis using the regulatory procedures

schools follow for NSMP.

Second, the Department is proposing to

redefine the review period for nutrition

reviews which is currently the last completed

week prior to the review in order to expedite

concurrent reviews of the nutrition standards

and reviews for compliance with serving

reimbursable meals and free/reduced price

application requirements as conducted under

coordinated review effort (CRE) reviews. The

proposal would permit reviewers to conduct

the nutrition review for any week prior to the

month of review as is allowed in other

reviews.

A third proposed provision would clarify

that State agencies must conduct at least one

review of every menu planning option

employed by the school food authority. The

proposal also clarifies that State agencies

would be required to review only the lunch

program unless the school food authority

uses a particular menu planning option for

breakfast but not for lunch, in which case at

least one school’s breakfast program would

need to be reviewed.

A fourth proposed change would require

State agencies to ensure that there are

appropriate methods for monitoring

compliance with the nutrition standards in

schools using approved reasonable

approaches. At a minimum, nutrition

monitoring in these schools would be

required to include a nutrient analysis by the

State agency using software approved for

NSMP.

Finally, the Department is proposing a

minor technical amendment to make the

cycle for nutrition reviews consistent with

the cycle for administrative reviews under

CRE. The cycle for conducting nutrition

standard reviews was intended to run

concurrently with the CRE cycle so that those

States electing to conduct nutrition reviews

at the same time as administrative reviews

could do so efficiently. While State agencies

are not required to conduct nutrition reviews

at the same time as administrative reviews,

the Department intended to make the two

review cycles coincide so that State agencies

could avail themselves of this option

efficiently. To achieve this goal, therefore,

the Department is proposing to establish an

initial cycle for nutrition reviews as seven

years, from July 1, 1996 through June 30,

2003. Thereafter, review cycles would be five

years in length. This expanded cycle would

allow State agencies more flexibility during

the implementation phase to complete

reviews and provide schools with necessary

assistance.

Effects of Miscellaneous Monitoring

Provisions

Benefits: The rule contains minor

provisions which provide State agencies with

greater flexibility in scheduling of nutrition

reviews. The rule allows States to conduct

the nutrient analysis based on one week in

the month prior to the month of review.

Current regulations require that the week

chosen for analysis be the last completed

week prior to review. Allowing the State

agency to choose a week in any month prior

to the month of review allows the States to

coordinate their nutrition review with the

CRE administrative reviews.

The rule proposes to alter the nutrition

review cycles so that States wishing to

conduct their nutrition reviews at the same

time as their CRE administrative reviews will

be able to do so. The June 13, 1995 final rule

established a five-year cycle for reviews of

nutrition compliance. The regulation

stipulated that the first five-year cycle could

begin as early as July 1, 1996 or as late as July

1, 1998. As a result, the first cycle could end

as soon as June 30, 2001, or as late as June

30, 2003, depending upon implementation.

The current CRE cycle ends on June 30, 1998

and the following cycle will end June 30,

2003. So that the two cycles might coincide,

the rule proposes to establish an initial cycle

for nutrition reviews of seven years, from

July 1, 1996 to June 30, 2003. The expanded

cycle would allow State agencies more

flexibility during the implementation phase

to complete reviews and provide schools

with necessary assistance.

Costs: When the June 13, 1995 final rule

established reviews of nutrition compliance,

the Department did not anticipate that the

traditional meal pattern would continue to be

an option after June 30, 1998, so no provision

was made requiring a nutrient analysis for

schools using this meal pattern. The

proposed rule extends nutrition monitoring

provisions pertaining to reviews of the

enhanced food-based menu planning option

to reviews of schools using the traditional

meal pattern. The requirement that a

nutritional analysis be conducted on schools

using the traditional meal plan does not

place any additional burden on State

agencies.

The rule requires that State agencies must

conduct at least one review of every menu

planning option employed by the school food

authority. This requirement could result in

more schools being reviewed for nutrition

compliance than would be required to be

reviewed under CRE. For each school it takes

one staff person approximately one and a half

days to complete a CRE review. This would

come at the approximate cost of $216 for
27176 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

2Cost calculated assuming 12 hours to review

each school at a wage rate of $18 an hour.

each additional school.2. The Department

believes this coverage is necessary to ensure

that the school food authority is employing

all menu planning systems correctly. The

only way for the State agency to identify

problems and provide technical assistance is

to examine the school food authorities

experience with all systems. It is impossible

to determine how many more schools State

agencies will have to review for nutrition

compliance than would be required for CRE

as the Department has no data on how many

school food authorities use multiple menu

planning systems.

Other Effects of the Proposed

Regulation

Effects of Rule on NSLP Participation

The provisions of this rule may have

a small effect on participation in the

National School Lunch Program. The

provisions of this rule may have the

effect of making meals more appealing

which may increase participation.

Implementation of the rule is not

expected to increase meal prices or

decrease meal acceptability. The rule

allows schools to continue to use the

current meal pattern. Additionally,

school food authorities and States are

now able to develop menu plans that

they feel would be even more appealing

to their student population than the

menu plans prescribed by the

Department.

Effects of Rule on Program Costs

The provisions in this proposed rule

will provide increased flexibility to

State or local program operators but

have no budgetary impact.

Effects on Small Entities

This proposal will not have

significant economic impact on a

substantial number of small entities.

This proposal does not add any new

requirements and there are no required

additional costs. School food authorities

and schools may experience some

positive effects from this proposed rule

as noted previously.

Summary of the Effects of the Proposed

Rule

The proposed rule provides school

food authorities and State agencies with

increased choices and flexibility in

selecting a menu planning system by

permanently reinstating the meal

pattern in effect during the 1994–1995

school year and providing guidelines for

approval of other reasonable approach

alternatives that schools may develop.

The proposed rule contains minor

monitoring provisions. It extends

monitoring provisions pertaining to

reviews of the enhanced food-based

menu planning option to reviews of

schools using the traditional meal

pattern. It provides State agencies with

greater flexibility in selection of the

week to be reviewed for nutrient

compliance. Further, the proposed rule

alters the nutrition review cycle so that

it coincides with the CRE administrative

review cycle. This will allow State

agencies to more easily conduct nutrient

reviews at the same time as

administrative reviews.

The proposed rule is not expected to

have any impact on program

participation, nor is the rule expected to

have any budgetary impact. The rule

will not have a significant economic

impact on a substantial number of small

entities.

5. Public Comments: This proposal

will provide a 180-day comment period.

List of Subjects

7 CFR Part 210

Commodity School Program, Food

assistance programs, Grant programs—

education, Grant programs—health,

Infants and children, Nutrition,

Reporting and recordkeeping

requirements, School breakfast and

lunch programs, Surplus agricultural

commodities.

7 CFR Part 220

Food assistance programs, Grant

programs—education, Grant programs—

health, Infants and children, Nutrition,

Reporting and recordkeeping

requirements, School breakfast and

lunch programs.

Accordingly, 7 CFR Parts 210 and 220

are proposed to be 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.

§ 210.2 [Amended]

2. In § 210.2:

a. the definition of ‘‘Food component’’

is amended by removing the words ‘‘or

one of the four food groups which

compose the reimbursable school lunch,

i.e., meat or meat alternate, milk, bread

or bread alternate, and vegetable/fruit

under § 210.10a’’;

b. the definition of ‘‘Food item’’ is

amended by removing the words ‘‘or

one of the five required foods that

compose the reimbursable school lunch,

i.e., meat or meat alternate, milk, bread

or bread alternate, and two (2) servings

of vegetables, fruits, or a combination of

both for the purposes of § 210.10a’’; and

c. the definition of ‘‘Lunch’’ is

amended by removing the words

‘‘§ 210.10(k)(2) or the school lunch

pattern for specified age/grade groups of

children as designated in § 210.10a’’ and

adding in their place the words

‘‘§ 210.10(k)(1) or § 210.10(k)(2),

whichever is applicable’’.

§ 210.4 [Amended]

3. In § 210.4, paragraph (b)(3)

introductory text is amended by

removing the words ‘‘§ 210.10(n)(1) or

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

and adding in their place a reference to

‘‘§ 210.10 (o)(1)’’.

§ 210.7 [Amended]

4. In § 210.7:

a. paragraph (c)(1)(v) is amended by

removing the words ‘‘or § 210.10a(b),

whichever is applicable,’’; and

b. paragraph (d) is amended by

removing the words ‘‘§ 210.10(n)(1) or

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

and adding in their place a reference to

‘‘§ 210.10(o)(1)’’.

§ 210.9 [Amended]

5. In § 210.9:

a. paragraph (b)(5) is amended by

removing the words ‘‘or 210.10a,

whichever is applicable’’;

b. paragraph (c) introductory text is

amended by removing the words

‘‘§ 210.10(n)(1) or § 210.10a(j)(1),

whichever is applicable’’ and adding in

their place a reference to

‘‘§ 210.10(o)(1)’’; and

c. paragraph (c)(1) is amended by

removing the words ‘‘or § 210.10a,

whichever is applicable’’.

6. In § 210.10:

a. paragraph (a)(1) is amended by

revising the first sentence and by adding

a new sentence at the end of the

paragraph;

b. the second sentence of paragraph

(a)(3) is amended by removing the word

‘‘or’’ and adding in its place a comma

and by adding the words ‘‘or those

developed under paragraph (l)’’ after the

reference to ‘‘paragraph (i)(1)’’; the third

sentence of paragraph (a)(3) is amended

by removing the third occurrence of the

word ‘‘or’’ and adding in its place a

comma, and adding the words ‘‘or those

developed under paragraph (l)’’ after the

reference to ‘‘paragraph (i)(1)’’;

c. paragraph (b)(1) is amended by

making the word ‘‘paragraph’’ plural, by

removing the second occurrence of the

word ‘‘or’’ and adding in its place a

comma and by adding the words ‘‘or (l)’’

after the reference to ‘‘(i)(1)’’;

d. paragraph (b)(2) is amended by

removing the second occurrence of the

word ‘‘or’’ and adding in its place a

comma, and by adding the words ‘‘or

(l)’’ after the reference to ‘‘(i)(1)’’;
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27177

e. paragraph (b)(3) is revised;

f. paragraph (b)(4) introductory text is

amended by removing the reference to

‘‘1990’’ and adding in its place a

reference to ‘‘1995’’;

g. the first sentence of paragraph (b)(5)

is revised;

h. the table in paragraph (c)(1) is

revised;

i. the table in paragraph (c)(2) is

revised;

j. paragraph (d) is revised;

k. the heading of paragraph (i)(4) and

paragraph (i)(9) are amended by

removing the words ‘‘National Nutrient

Database’’ and adding in their place the

words ‘‘Child Nutrition Database’’;

l. paragraphs (i)(4) and (i)(8) are

amended by removing the words

‘‘National Nutrient Database for the

Child Nutrition Programs’’ wherever

they appear and by adding the words

‘‘Child Nutrition Database’’ in their

place;

m. the heading of paragraph (k) is

revised and introductory text is added;

n. paragraph (k)(1) is revised;

o. the heading of paragraph (k)(2) and

the introductory text before the chart are

revised;

p. the first two sentences of paragraph

(k)(4) are redesignated as paragraph

(k)(4)(i) and the last sentence of

paragraph (k)(4) is redesignated as

paragraph (k)(4)(ii) and is revised;

q. paragraph (k)(5) is amended by

adding a new paragraph (k)(5)(iii);

r. paragraph (k)(5)(ii) is amended by

adding two new sentences between the

second and third sentences;

s. paragraphs (l) through (o) are

redesignated as paragraphs (m) through

(p), respectively, and a new paragraph

(l) is added;

t. newly redesignated paragraph

(o)(3)(iv) is amended by removing the

reference to ‘‘(n)(3)’’ and adding in its

place a reference to ‘‘(o)(3)’’; and

u. in newly redesignated paragraph

(p), the reference to ‘‘1990’’ is removed

and a reference to ‘‘1995’’ is added in

its place.

The additions and revisions read as

follows:

§ 210.10 Nutrition standards for lunches

and menu planning methods.

(a) General requirements for school

lunches. (1) In order to qualify for

reimbursement, all lunches served to

children age 2 and older, as offered by

participating schools, shall, at a

minimum, meet the nutrition standards

provided in paragraph (b) of this section

and the appropriate levels of calories

and nutrients provided in: paragraph (c)

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

nutrient standard menu planning and

assisted nutrient standard menu

planning; paragraph (d)(1) of this

section for the traditional food-based

menu planning alternative; paragraph

(d)(2) of this section for the enhanced

food-based menu planning alternative;

or as developed in accordance with the

provisions in paragraph (l) of this

section for other menu planning

alternatives, whichever is applicable.

* * * In addition, those school food

authorities that use menu planning

approaches as allowed under paragraph

(l) of this section shall ensure that

sufficient quantities of food are planned

and produced to meet the provisions in

paragraph (b) of this section and any

minimum standards for food/menu

items and quantities.

* * * * *

(b) Nutrition standards for

reimbursable lunches. * * *

(3) The applicable recommendations

of the 1995 Dietary Guidelines for

Americans which are:

(i) Eat a variety of foods;

(ii) Limit total fat to 30 percent of

calories;

(iii) Limit saturated fat to less than 10

percent of calories;

(iv) Choose a diet low in cholesterol;

(v) Choose a diet with plenty of grain

products, vegetables, and fruits;

(vi) Choose a diet moderate in salt and

sodium; and

(vii) Choose a diet moderate in sugars.

* * * * *

(5) School food authorities have

several alternatives for menu planning

in order to meet the nutrition standards

of this paragraph and the applicable

nutrient and calorie levels: nutrient

standard menu planning as provided for

in paragraph (i) of this section; assisted

nutrient standard menu planning as

provided for in paragraph (j) of this

section; traditional food-based menu

planning as provided for in paragraph

(d)(1) of this section; enhanced foodbased menu planning as provided for in

paragraph (d)(2) of this section; or other

menu planning approaches as provided

for in paragraph (l) of this section.

* * *

(c) Nutrient levels for school lunches/

nutrient analysis.
27178 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

(1) * * *

(2) * * *

(d) Minimum nutrient levels for

school lunches/food-based menu

planning alternatives.

(1) Traditional food-based menu

planning alternative. For the purposes

of the traditional food-based menu

planning alternative, as provided for in

paragraph (k)(1) of this section, the

following chart provides the minimum

levels, by grade group, for calorie and

nutrient levels for school lunches

offered over a school week:
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27179

(2) Enhanced food-based menu

planning alternative. For the purposes

of the enhanced food-based menu

planning alternative, as provided for in

paragraph (k)(2) of this section, the

following chart provides the miniumn

levels, by grade group, for calorie and

nutrient levels for school lunches over

a school week:
27180 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

* * * * *

(k) Food-based menu planning

alternatives. School food authorities

may choose to plan menus using either

the traditional or enhanced food-based

menu planning alternatives. Under

these alternatives, specific food

components shall be offered as provided

in either paragraphs (k)(1) or (k)(2) of

this section, whichever is applicable,

and in paragraphs (k)(3) through (k)(5)

of this section, as appropriate.

(1) Minimum quantities-traditional

food-based menu planning alternative.

(i) At a minimum, school food

authorities choosing to plan menus

using the traditional food-based menu

planning alternative shall offer all five

required food items in the quantities

provided in the following chart:

(ii) Schools able to provide the

appropriate quantities of food to

children of each age/grade group should

do so. Schools that cannot serve

children of each age or grade level shall

provide all school age children Group

IV portions as specified in the table

presented in this paragraph. Schools

serving lunches to children of more than

one age or grade level shall plan and

produce sufficient quantities of food to

provide Groups I–IV no less than the

amounts specified for those children in

the table presented in this paragraph,

and sufficient quantities of food to

provide Group V no less than the

specified amounts for Group IV. It is

recommended that such schools plan

and produce sufficient quantities of

food to provide Group V children the

larger amounts specified in the table.

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 shall plan and produce

sufficient quantities of food to at least

provide the serving sizes required for

Group IV.

(2) Minimum quantities-enhanced

food-based menu planning alternative.

At a minimum, school food authorities

choosing to plan menus using the

enhanced food-based menu planning

alternative shall offer all five required
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27181

food items in the quantities provided in

the following chart:

* * * * *

(4) Vegetables and fruits. * * *

(ii) Under the enhanced food-based

menu planning alternative, the

requirement for this component is based

on minimum daily servings plus an

additional one-half cup in any

combination over a five day period for

children in kindergarten through grade

six.

(5) Grains/breads. * * *

(ii) * * * Schools serving lunch 6 or

7 days per week should increase the

weekly quantity by approximately 20

percent (1/5) 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) for each day less than five.* * *

(iii) Under the traditional food-based

menu planning alternative, schools shall

serve daily at least one-half serving of

bread or bread alternate to children in

Group I and at least one serving to

children in Groups II-V. Schools which

serve lunch at least 5 days a week shall

serve a total of at least five servings of

bread or bread alternate to children in

Group I and eight servings per week to

children in Groups II-V.

* * * * *

(l) Other menu planning alternatives.

(1) Modifications. School food

authorities may adopt any or all of the

following menu planning alternatives.

State agencies may require prior

approval for adopting the alternatives,

may establish guidelines for their

adoption, or may permit their adoption

without prior approval.

(i) Under the traditional or enhanced

food-based menu planning alternatives

provided for in paragraph (k) of this

section, the meat/meat alternate

component may be provided as a

weekly total with a one ounce (or its

equivalent for certain meat alternates)

minimum daily amount, except that this

provision does not apply if the

minimum serving of meat/meat

alternate is less than one ounce; or

(ii) Under the traditional or enhanced

food-based menu planning alternatives,

if only one age or grade is outside the

established levels, schools may use the

levels for the majority of children for

both portions and the Recommended

Dietary Allowances and lunchtime

energy allowances.

(2) Major changes or new alternatives:

use and approval. Subject to the

applicable requirements of paragraph

(l)(3) of this section, school food

authorities or State agencies may modify

one of the menu planning alternatives

established in paragraphs (i) through (k)

of this section or may develop their own

menu planning approach. Any such

alternate menu planning approaches

shall be in writing for review and

monitoring purposes, as applicable. No

formal plan is required; the written

alternate approach may be in the form

of guidance, protocol, or the like. The

alternate approach shall address how

the provisions in paragraph (l)(3) shall

be met.

(i) Any school food authoritydeveloped menu planning approach

must have prior State agency review and

approval.

(ii) Except as noted in paragraph

(l)(2)(iii), any State agency-developed

menu planning approach must have

prior FNS approval.

(iii) Any State agency-developed

menu planning approach is not subject

to FNS review if:

(A) Five or more school food

authorities within the State use the

approach;

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

evaluation of the alternative menu

planning approach including making

adjustments to the approach’s policies

and procedures, as necessary, to ensure

compliance with the applicable

provisions in paragraph (l)(3) of this

section as needed; and

(C) The State agency issues an

announcement notifying the public

concerning the alternate menu planning

approach prior to the implementation of

the approach by any school food

authority; such announcement shall be

issued in a manner consistent with State

procedures for public notification.

(3) Major changes or new alternatives:

required elements. The following

requirements shall be met by any

alternate menu planning approach:

(i) The service of fluid milk, as

provided in paragraph (m) of this

section;

(ii) Offer versus serve for senior high

students. To the extent possible, the

offer versus serve procedures for an

alternate approach shall follow the

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

(k)(6) of this section, as appropriate.

Any alternate approach which deviates

from the provisions in paragraphs

(i)(2)(ii) or (k)(6) of this section shall, at

a minimum, indicate what age/grade

groups are included in offer versus serve

and establish the number and type of

items, (and, if applicable, the quantities

for the items) that constitute a

reimbursable meal under offer versus

serve. In addition, the alternate offer

versus serve procedures shall include an

explanation of how such procedures

will reduce plate waste and provide a

reasonable level of calories and

nutrients for the meal as taken;

(iii) The nutrition standards in

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

section. Any alternate approach shall

indicate the age/grade groups to be

served and how such approach is

designed to meet these requirements for

those age/grade groups;

(iv) The requirements for competitive

foods in § 210.11 and Appendix B to

this part.

(v) For alternate food-based menu

planning approaches, the requirements

for crediting food items and products

provided for in paragraphs (k)(3)

through (k)(5) and paragraph (m) of this

section, in the appendices to this part,

and in instructions and guidance issued

by FNS;

(vi) Identification of a reimbursable

meal at the point of service. To the

extent possible, the procedures

provided in paragraph (i)(2)(i) of this

section for nutrient standard or assisted

nutrient standard menu planning

alternatives or for food-based menu

planning alternatives provided in

paragraph (k) of this section shall be

followed. In addition, any instructions

or guidance issued by FNS that further

defines the elements of a reimbursable

meal shall be followed when using the

existing regulatory provisions. Any

alternate approach that deviates from

the provisions in paragraph (i)(2)(i) or

paragraph (k) of this section shall

indicate what constitutes a reimbursable

meal, including the number and type of

items (and, if applicable, the quantities

for the items) which comprise the meal,

and how a reimbursable meal is to be

identified at the point of service.

(vii) An explanation of how the

alternate approach can be monitored

under the applicable provisions of

§ 210.18 and § 210.19, including a

description of the records that will be

maintained to document compliance

with the program’s administrative and

nutrition requirements. However, to the

extent that the procedures under

§ 210.19 are inappropriate for

monitoring the alternate approach, the

alternate approach shall include a

description of review procedures which

will enable the State agency to assess

compliance with the nutrition standards

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

this section; and

(viii) the requirements for weighted

analysis and for approved software for

nutrient standard menu planning as

required by paragraphs (i)(4) and (i)(5)

of this section unless a State agencydeveloped approach meets the criteria

in paragraph (l)(2)(iii) of this section.

* * * * *
27182 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

§ 210.10a [Removed]

7. Section 210.10a is removed.

§ 210.15 [Amended]

8. In § 210.15:

a. paragraph (b)(2) is amended by

removing the words ‘‘menu records as

required under § 210.10a and

production and’’; and

b. paragraph (b)(3) is amended by

removing the words ‘‘or § 210.10a(b),

whichever is applicable’’.

§ 210.16 [Amended]

9. In § 210.16, paragraph (b)(1) is

amended by removing the words ‘‘or

§ 210.10a, whichever is applicable,’’

wherever they appear.

§ 210.18 [Amended]

10. In § 210.18:

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

b. the heading of paragraph (g)(2)

introductory text is amended by

removing the words ‘‘food items/

components as required by Program

regulations’’ and adding in their place

the words ‘‘meal elements (food items/

components, menu items or other items,

as applicable) as required under

§ 210.10’’;

c. Paragraph (g)(2)(i) is amended by

removing the words ‘‘required food

items/components’’ and adding in their

place the words ‘‘meal elements (food

items/components, menu items or other

items, as applicable) as required under

§ 210.10’’;

d. Paragraph (g)(2)(ii) is amended by

removing the words ‘‘the required

number of food items/components’’ and

adding in their place the words ‘‘the

number of meal elements (food items/

components, menu items or other items,

as applicable) as required under

§ 210.10’’;

e. Paragraph (g)(2)(iii) is amended by

removing the words ‘‘required food

items/components’’ and adding in their

place the words ‘‘meal elements (food

items/components, menu items or other

items, as applicable) as required under

§ 210.10’’;

f. paragraph (h)(2) is amended by

removing the words ‘‘food items/

components in the quantities required

under § 210.10 or § 210.10a, in

whichever is applicable’’ and adding in

their place the words ‘‘meal elements

(food items/components, menu items or

other items, as applicable) as required

under § 210.10’’; and

g. paragraph (i)(3)(ii) is amended by

removing the words ‘‘required food

items/components’’ and adding in their

place the words ‘‘meal elements (food

items/components, menu items or other

items, as applicable) as required under

§ 210.10’’.

The revision reads as follows:

§ 210.18. Administrative reviews.

* * * * *

(b) Definitions. * * *

(2) * * *

(ii) Performance Standard 2—Meal

Elements. Lunches claimed for

reimbursement within the school food

authority contain meal elements (food

items/components, menu items or other

items, as applicable) as required under

§ 210.10.

* * * * *

11. In § 210.19:

a. the first sentence of paragraph (a)(1)

introductory text is amended by

removing the reference to ‘‘§ 210.10(o)’’

and by adding in its place a reference to

‘‘§ 210.10(p)’’, and by removing the

words ‘‘or (d),’’ and adding in their

place the words ‘‘, (d), or (i)(1) or the

procedures developed under

§ 210.10(l),’’;

b. the second sentence of paragraph

(a)(1) introductory text is amended by

removing the words ‘‘At a minimum,

these evaluations shall be conducted

once every 5 years and’’ and adding in

their place the words ‘‘These

evaluations’’;

c. paragraph (a)(1) introductory text is

further amended by adding five

sentences at the end;

d. paragraphs (a)(1)(i), (a)(1)(ii),

(a)(1)(iii), and (a)(1)(iv) are redesignated

as paragraphs (a)(1)(ii), (a)(1)(iii),

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

new paragraphs (a)(1)(i) and (a)(1)(iv)

are added;

e. the first sentence of newly

redesignated paragraph (a)(1)(ii) is

revised;

f. newly redesignated paragraph

(a)(1)(iii) introductory text is revised;

g. paragraph (a)(3) is amended by

removing the words ‘‘or § 210.10a,

whichever is applicable,’’; and

h. paragraph (c)(6)(i) is amended by

removing the words ‘‘food item required

under the meal pattern in § 210.10a or

the food-based menu planning

alternative in § 210.10(k), whichever is

applicable’’ and adding in their place

the words ‘‘meal element (food item/

component, menu item or other items,

as applicable) as required under

§ 210.10’’.

The additions and revisions read as

follows:

§ 210.19 Additional responsibilities.

(a) General Program management.

* * *

(1) Compliance with nutrition

standards.* * * At a minimum, the

State agency shall review at least one

school for each type of menu planning

alternative used in the school food

authority. Review activity may be

confined to the National School Lunch

Program unless a menu planning

alternative is used exclusively in the

School Breakfast Program. The review

must examine compliance with the

nutrition standards in § 210.10(b) and

§ 210.10(c), (d), (i)(1), or (l), and § 220.8

(a), (c), (e)(1), or (h), as appropriate.

State agencies are encouraged to review

the School Breakfast Program as well if

the school food authority requires

technical assistance from the State

agency to meet the nutrition standards

or if corrective action is needed. Such

review shall determine compliance with

the appropriate requirements in § 220.8

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.

(i) At a minimum, State agencies shall

conduct evaluations of compliance with

the nutrition standards in § 210.10(b)

and § 210.10(c), (d), (i)(1), or (l), as

appropriate, 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 prior to the month in which such

evaluation is conducted. The week

selected must continue to represent the

current menu planning system.

(ii) For school food authorities

choosing the nutrient standard or

assisted nutrient standard menu

planning alternatives provided in

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

§ 220.8(f), or developed under the

procedures in § 210.10(l) or § 220.8(h),

the State agency shall assess the

nutrient analysis to determine if the

school food authority is properly

applying the methodology in § 220.8(e),

or § 220.8(f), or developed under the

procedures in § 210.10(l) or § 220.8(h),

as appropriate.* * *

(iii) For school food authorities

choosing the food-based menu planning

alternatives provided in § 210.10(k) or

§ 220.8(g) or developed under the

procedures in § 210.10(l) or § 220.8(h),

the State agency shall determine if the

nutrition standards set forth in

§ 210.10(b) and § 210.10(d) are met. The

State agency shall conduct a nutrient

analysis in accordance with the

procedures in § 210.10(i) or § 220.8(e),

as appropriate, except that the State

agency may:

* * * * *

(iv) For school food authorities

following an alternate approach as
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27183

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

that does not allow for use of the

monitoring procedures in paragraphs

(a)(1)(ii) or (a)(1)(iii), the State agency

shall monitor compliance following the

procedures developed in accordance

with § 210.10(l) or § 220.8(h), whichever

is appropriate.

* * * * *

Appendix A [Amended]

12. In Appendix A to Part 210—

Alternate Foods for Meals:

a. under Enriched Macaroni Products

with Fortified Protein, paragraph 1.(a) is

amended by removing the words ‘‘or

§ 210.10a, whichever is applicable,’’;

b. under Vegetable Protein Products,

paragraph 1. introductory text is

amended by removing the words ‘‘or

§ 210.10a, whichever is applicable’’;

c. under Vegetable Protein Products,

paragraph 1.(d) is amended by removing

the words ‘‘or § 210.10a, whichever is

applicable’’;

d. under Vegetable Protein Products,

paragraph 1.(e) is amended by removing

the words ‘‘or § 210.10a, whichever is

applicable’’;

e. under Vegetable Protein Products,

paragraph 3. is amended by removing

the words ‘‘or § 210.10a, whichever is

applicable’’.

Appendix C [Amended]

13. In Appendix C to Part 210-Child

Nutrition Labeling Program:

a. paragraph 2.(a) is amended by

removing the words ‘‘or § 210.10a,

whichever is applicable’’;

b. paragraph 3.(c)(2) is amended by

removing the words ‘‘or § 210.10a,

whichever is applicable’’ and by

removing the words ‘‘or § 220.8a,

whichever is applicable’’;

c. paragraph 6. introductory text is

amended by removing the words ‘‘or

§ 210.10a, whichever is applicable’’ and

by removing the words ‘‘or § 220.8a,

whichever is applicable’’.

PART 220—SCHOOL BREAKFAST

PROGRAM

1. The authority citation continues to

read as follows:

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

otherwise noted.

§ 220.2 [Amended]

2. In § 220.2:

a. paragraph (b) is amended by

removing the words ‘‘or § 220.8a,

whichever is applicable,’’; and

b. paragraph (t) is amended by

removing the words ‘‘or § 220.8,

whichever is applicable,’’.

§ 220.7 [Amended]

3. In § 220.7, paragraph (e)(2) is

amended by removing the words ‘‘or

§ 220.8a, whichever is applicable,’’.

4. In § 220.8:

a. paragraph (a)(1) is amended by

removing the second occurrence of the

word ‘‘or’’ and adding in its place a

comma and by adding the words ‘‘, or

(h)’’ after the reference to ‘‘(e)(1)’’;

b. paragraph (a)(2) is amended by

removing the second occurrence of the

word ‘‘or’’ and adding in its place the

words ‘‘or (h)’’ after the reference to

‘‘(e)(1)’’;

c. paragraph (a)(3) is revised;

d. paragraph (a)(4) is amended by

removing the reference to ‘‘1990’’ and

adding in its place a reference to

‘‘1995’’;

e. the first sentence of paragraph (a)(5)

is revised;

f. the first sentence of paragraph (a)(6)

is amended by removing the word ‘‘or’’

and adding in its place a comma and by

adding the words ‘‘or those developed

under paragraph (h)’’ after the reference

to ‘‘paragraph (e)(1)’’ and the second

sentence of paragraph (a)(6) is amended

by removing the third occurrence of the

word ‘‘or’’ and adding in its place a

comma and by adding the words ‘‘or

those developed under paragraph (h)’’

after the reference to ‘‘paragraph (e)(1)’’;

g. the table in paragraph (b)(1) is

revised;

h. the table in paragraph (b)(2) is

revised;

i. paragraph (c) is revised;

j. the heading of paragraph (e)(4) and

paragraph (e)(9) are amended by

removing the words ‘‘National Nutrient

Database’’ and adding in their place the

words ‘‘Child Nutrition Database’’;

k. paragraphs (e)(4) and (e)(8) are

amended by removing the words

‘‘National Nutrient Database for the

Child Nutrition Programs’’ wherever

they appear and by adding the words

‘‘Child Nutrition Database’’ in their

place;

l. the heading of paragraph (g) is

revised and introductory text is added;

m. the introductory text of paragraph

(g)(1) is amended by removing the

words ‘‘in the table in paragraph (g)(2)

of this section’’ and adding in their

place the words ‘‘either in the table in

paragraph (g)(2) or (g)(3) of this section,

whichever is applicable’’;

n. paragraph (g)(2) is revised;

o. paragraphs (h) through (m) are

redesignated as paragraphs (i) through

(n), respectively, and a new paragraph

(h) is added; and

p. in newly redesignated paragraph

(n), the reference to ‘‘1990’’ is removed

and a reference to ‘‘1995’’ is added in

its place.

The additions and revisions are as

follows:

§ 220.8 Nutrition standards for breakfast

and menu planning alternatives.

(a) Nutrition standards for breakfasts

for children age 2 and over. * * *

(3) The applicable recommendations

of the 1995 Dietary Guidelines for

Americans which are: eat a variety of

foods; limit total fat to 30 percent of

calories; limit saturated fat to less than

10 percent of calories; choose a diet low

in cholesterol; choose a diet with plenty

of grain products, vegetables, and fruits;

choose a diet moderate in salt and

sodium; and choose a diet moderate in

sugars.

* * * * *

(5) School food authorities have

several alternatives for menu planning

in order to meet the requirements of this

paragraph including the appropriate

nutrient and calorie levels: nutrient

standard menu planning as provided for

in paragraph (e) of this section; assisted

nutrient standard menu planning as

provided for in paragraph (f) of this

section; traditional food-based menu

planning as provided for in paragraph

(g)(1) of this section; enhanced foodbased menu planning as provided for in

paragraph (g)(2) of this section; or other

menu planning approaches as provided

for in paragraph (h) of this section.

* * *

* * * * *

(b) Nutrient levels/nutrient analysis.
27184 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

(1) * * *

(2) * * *

(c) Minimum nutrient levels for school

breakfasts/food-based menu planning

alternatives. (1) Traditional food-based

menu planning alternative. For the

purposes of the traditional food-based

menu planning alternative, as provided

for in paragraph (g)(2) of this section,

the following chart provides the

minimum levels, by grade group, for

calorie and nutrient levels for school

breakfasts offered over a school week:
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27185

(2) Enhanced food-based menu

planning alternative. For the purposes

of the enhanced food-based menu

planning alternative, as provided for in

paragraph (g)(1) of this section, the

following chart provides the minimum

levels, by grade group, for calorie and

nutrient levels for school breakfasts

offered over a school week:

* * * * *

(g) Food-based menu planning

alternatives. School food authorities

may choose to plan menus using either

the traditional or enhanced food-based

menu planning alternatives. Under

these alternatives, specific food

components shall be offered as provided

in either paragraphs (g)(1) or (g)(2) of

this section, whichever is applicable,

and in paragraphs (g)(3) and (g)(4) of

this section, as appropriate.

* * * * *
27186 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

(2) Minimum quantities-food-based

menu planning alternatives. (i) At a

minimum, schools using the traditional

food-based menu planning alternative

shall serve breakfasts in the quantities

provided in the following chart:
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules 27187

(ii) At a minimum, schools using the

enhanced food-based menu planning

alternative shall serve breakfasts in the

quantities provided in the following

chart:

* * * * *

(h) Other menu planning alternatives.

(1) Modification. Under the traditional

or enhanced food-based menu planning

alternatives, school food authorities

may, if only one age or grade is outside

the established levels, use the levels for

the majority of children for both

portions and the Recommended Dietary

Allowances and breakfast energy

allowances. State agencies may require

prior approval for adopting this

alternative, may establish guidelines for

its adoption, or may permit its adoption

without prior approval.

(2) Major changes or new alternatives:

use and approval. Subject to the

requirements of paragraphs (h)(3) of this

section, school food authorities or State

agencies may modify one of the menu

planning alternatives established in

paragraphs (e) through (g) of this section

or may develop their own menu

planning approach. Any such alternate

menu planning approaches shall be in

writing for review and monitoring

purposes, as applicable. No formal plan
27188 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed Rules

is required; the written alternate

approach may be in the form of

guidance, protocol, or the like. The

alternate approach shall address how

the provisions in paragraph (h)(3) shall

be met.

(i) Any school food authority

developed menu planning approach

shall have prior State agency review and

approval.

(ii) Except as noted in paragraph

(h)(2)(iii), any State agency-developed

menu planning alternative shall have

prior FNS approval.

(iii) Any State agency developed

alternative is not subject to FNS review

if:

(A) Five or more school food

authorities within the State use the

approach;

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

evaluation of the alternative menu

planning approach including making

adjustments to the approach’s policies

and procedures, as necessary, to ensure

compliance with the applicable

provisions in paragraph (h)(3) of this

section as needed; and

(C) The State agency issues an

announcement notifying the public

concerning the alternate menu planning

approach prior to the implementation of

the approach by any school food

authority; such announcement shall be

issued in a manner consistent with State

procedures for public notification.

(3) Major changes or new alternatives:

required elements. The following

requirements shall be met by any

alternate menu planning approach:

(i) Service of fluid milk, as provided

in paragraph (h)(1) of this section;

(ii) The nutrition standards in

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

section. Any alternate approach shall

indicate the age/grade groups to be

served and how such approach is

designed to meet these requirements for

those age/grade groups.

(iii) The requirements for competitive

foods in § 220.12 and appendix B to this

part;

(iv) For alternate food-based menu

planning approaches, the requirements

for crediting food items and products

provided for in paragraphs (g)(2) and (i)

of this section, in the appendices to this

part, in § 210.10(k)(3) through (k)(5),

§ 210.10 (m) and in the instructions and

guidance issued by FNS;

(v) Identification of a reimbursable

meal at the point of service. To the

extent possible, the procedures

provided in paragraph (e)(2)(i) of this

section for nutrient standard or assisted

nutrient standard-type menu planning

approaches or in paragraph (g) of this

section for food-based-type menu

planning approaches shall be followed.

In addition, any instructions or

guidance issued by FNS that further

defines the elements of a reimbursable

meal shall be followed when using the

existing regulatory provisions. Any

alternate approach that deviates from

the provisions in paragraph (e)(2)(i) or

paragraph (g) of this section shall

indicate what constitutes a reimbursable

meal, including the number and type of

items (and, if applicable, the quantities

for these items) which comprise the

meal, and how a reimbursable meal is

to be identified at the point of service.

Further, if the alternate approach

provides for offer versus serve as

allowed under paragraph (e)(2)(ii) of

this section for nutrient standard or

assisted nutrient standard-type menu

planning approaches or in paragraph

(g)(3) of this section for food-based-type

menu planning approaches, the

alternate approach shall follow those

provisions to the extent possible. Any

alternate approach that deviates from

the provisions in paragraph (e)(2)(ii) or

(g)(3) of this section shall, at a

minimum, indicate what age/grade

groups are included in offer versus serve

and establish the number and type of

items (and, if applicable, the quantities

for the items) that constitute a

reimbursable meal under offer versus

serve. In addition, the alternate offer

versus serve procedures shall include an

explanation of how such procedures

will reduce plate waste and provide a

reasonable level of calories and

nutrients for the meal as taken;

(vi) An explanation of how the

alternate approach can be monitored

under the applicable provisions of

§ 210.18 and § 210.19, including a

description of the records that will be

maintained to document compliance

with the program’s administrative and

nutrition requirements. However, to the

extent that the procedures under

§ 210.19 are inappropriate for

monitoring the alternate approach, the

alternate approach shall include 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; and

(vii) 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.

* * * * *

§ 220.8a [Removed]

5. Section 220.8a is removed.

§ 220.9 [Amended]

6. In § 220.9, paragraph (a) is

amended by removing the words ‘‘or

§ 220.8a, whichever is applicable,’’.

§ 220.14 [Amended]

7. In § 220.14, paragraph (h) is

amended by removing the words ‘‘or

§ 220.8a(a)(1), (b)(2), and (b)(3),

whichever is applicable’’.

Appendix A [Amended]

8. In Appendix A to Part 220—

Alternate Foods for Meals, paragraph

1.(a) is amended by removing the words

‘‘or 220.8a, whichever is applicable’’.

Appendix C [Amended]

9. In Appendix C to Part 220—Child

Nutrition (CN) Labeling Program:

a. paragraph 2.(a) is amended by

removing the words ‘‘or 210.10a,

whichever is applicable’’;

b. paragraph 3.(c)(2) is amended by

removing the words ‘‘or 210.10a,

whichever is applicable’’ and is further

amended by removing the words ‘‘or

220.8a, whichever is applicable’’; and

c. paragraph 6. is amended by

removing the words ‘‘or 210.10a,

whichever is applicable’’ and is further

amended by removing the words ‘‘or

220.8a, whichever is applicable’’.

* * * * *

Dated: April 27, 1998.

Shirley R. Watkins,

Under Secretary for Food, Nutrition and

Consumer Services.

Editorial Note: FR Doc. 98–11654 was

originally published at 63 FR 24686–24709 in

the issue of Monday, May 4, 1998. Due to

numerous errors, the document is being

republished in its entirety. The comment

dates have changed. Also, disregard the

correction document published at 63 FR

25569 May 8, 1998.

[FR Doc. 98–11654 Filed 5–1–98; 8:45 am]

BILLING CODE 1505–01–F