[Federal Register Volume 60, Number 113 (Tuesday, June 13, 1995)]
[Rules and Regulations]
[Pages 31188-31222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14292]




[[Page 31187]]

_______________________________________________________________________

Part II





Department of Agriculture





_______________________________________________________________________



Food and Consumer Service



_______________________________________________________________________



7 CFR Parts 210 and 220



Child Nutrition Programs: School Meal Initiatives for Healthy Children; 
Final Rule

  Federal Register / Vol. 60, No. 113 / Tuesday, June 13, 1995 / Rules 
and Regulations   
[[Page 31188]] 

DEPARTMENT OF AGRICULTURE

Food and Consumer Service

7 CFR Parts 210 and 220


National School Lunch Program and School Breakfast Program: 
School Meals Initiative for Healthy Children

AGENCY: Food and Consumer Service, USDA.

ACTION: Final rule

-----------------------------------------------------------------------

SUMMARY: This final rule amends the regulations governing the nutrition 
standards for the National School Lunch and School Breakfast Programs. 
It is part of 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 and tools to meet 
these standards. On June 10, 1994, the Department proposed 
improvements, including a provision to incorporate the Dietary 
Guidelines for Americans into the program regulations. The Dietary 
Guidelines for Americans set forth medical and scientific consensus on 
proper nutrition as a vital element in disease prevention and long-term 
health promotion. That proposal would have also established a method of 
meal planning and preparation based on computerized nutrient analysis. 
On January 27, 1995, the Department published a supplemental proposal 
to provide local food authorities with an additional meal planning 
option--a food-based menu system. This final rule implements provisions 
of both proposals and reflects the Department's review of the comments 
received on those proposals. The foundation of this final rule is the 
requirement that, by School Year 1996/1997, school lunches and 
breakfasts comply with the recommendations of the Dietary Guidelines 
for Americans. This rule also establishes specific minimum standards 
for key nutrients and calories which school meals must meet. To 
facilitate implementation of the updated standards, the regulation 
provides schools with three meal planning options and streamlines some 
administrative requirements to enhance flexibility for schools and 
State agencies. This rule also incorporates some provisions of the 
Healthy Meals for Healthy Americans Act of 1994. The effect of this 
rule will be to provide more healthful and nutritious meals to the 
Nation's school children.

EFFECTIVE DATE: July 13, 1995

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Eadie, Chief, Policy and 
Program Development Branch, Child Nutrition Division, Food and Consumer 
Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 22302; 
telephone: 703-305-2620.
SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This final rule has been determined to be significant and was 
reviewed by the Office of Management and Budget under Executive Order 
12866.

Regulatory Flexibility Act

    This final rule has been reviewed with regard to the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The 
Administrator of the Food and Consumer Service (FCS) has certified that 
this rule will not have a significant economic impact on a substantial 
number of small entities. In the interest of furthering efforts to 
reinvent government, this rule reduces current State agency 
administrative burdens and makes a technical adjustment in the 
recordkeeping burdens. In addition, the Department of Agriculture (the 
Department or USDA) does not anticipate any adverse fiscal impact on 
local schools. Analyses by FCS and the Department's Economic Research 
Service found that the menu planning aspects can be met at the current 
cost of food in the National School Lunch and School Breakfast 
Programs. Further, these analyses indicate that the reimbursement 
structure of the Programs, along with student payments for meals 
served, provide sufficient subsidy.

Catalog of Federal Assistance

    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 Federal Register (FR) 29112, June 24, 1983.)

Executive Order 12778

    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This final rule is intended to have preemptive 
effect with respect to any State or local laws, regulations or policies 
which conflict with its provisions or which would otherwise impede its 
full implementation. This final rule is not intended to have 
retroactive effect unless so specified in the Effective Date section of 
this preamble. Prior to any judicial challenge to the provisions of 
this final rule or the application of the provisions, all applicable 
administrative procedures must be exhausted. In the 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 FCS findings as a result of an administrative review must 
follow FCS 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 FCS 
Administrative Review Process as established pursuant to 7 CFR 
235.11(f).

Information Collection

    This final rule contains information collection requirements which 
are subject to review by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35). The 
title, description, and respondent description of the information 
collections are shown below with an estimate of the annual reporting 
and 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: National School Lunch Program and School Breakfast Program: 
School Meals Initiative for Healthy Children.
    Description: Under this final rule, some existing recordkeeping 
activities contained in 7 CFR parts 210 and 220 would be affected. The 
OMB control numbers are 0584-0006 and 0584-0012, respectively.
    Description of Respondents: State agencies, school food authorities 
and schools doing on-site preparation of meals.

                                                                        
[[Page 31189]]
                                      Estimated Annual Recordkeeping Burden                                     
----------------------------------------------------------------------------------------------------------------
                                                                                       Average                  
                                                              Annual       Annual     burden per   Annual burden
                    7 CFR 210.8 (a)(3)                      number of    frequency     response        hours    
                                                           respondents                 (hours)                  
----------------------------------------------------------------------------------------------------------------
Existing.................................................       20,249           12            2         485,976
New......................................................      * 3,442           12            2          82,608
Difference...............................................  ...........  ...........  ...........       -403,368 
----------------------------------------------------------------------------------------------------------------
* These respondents represent the 17% of school food authorities which are found through administrative reviews 
  conducted under Sec.  210.18 to have counting and claiming deficiencies and therefore must continue using the 
  current edit checks.                                                                                          


----------------------------------------------------------------------------------------------------------------
                                                              Annual                   Average                  
       7 CFR 210.10/nutrient analysis menu planning         number of      Annual     burden per   Annual burden
                                                           respondents   frequency     response        hours    
----------------------------------------------------------------------------------------------------------------
Existing.................................................  ...........  ...........  ...........  ..............
New......................................................     * 14,235          180         .333         853,246
Difference...............................................  ...........  ...........  ...........        +853,246
----------------------------------------------------------------------------------------------------------------
* This estimate uses approximately 20% of schools. Please note that the current OMB approved burden is based on 
  70,455 schools. However, for the purposes of a more accurate comparison, the current burden has been adjusted 
  here to include the same number of schools used to determine the new burden.                                  


----------------------------------------------------------------------------------------------------------------
                                                          Annual                       Average                  
        7 CFR 210.10/ food-based menu planning          number of   Annualfrequency   burden per   Annual burden
                                                       respondents                     response        hours    
----------------------------------------------------------------------------------------------------------------
Existing.............................................     * 71,176            180            .25       3,202,920
 New.................................................    ** 56,941            180            .25       2,562,345
Difference...........................................  ...........  ...............  ...........        -640,575
----------------------------------------------------------------------------------------------------------------
* Please note that the current OMB approved burden is based on 70,455 schools. However, for the purposes of a   
  more accurate comparison, the current burden has been adjusted here to include the same number of schools used
  to determine the new burden.                                                                                  
** This estimate uses approximately 80% of schools.                                                             


----------------------------------------------------------------------------------------------------------------
                                                              Annual                   Average                  
                    7 CFR 210.15(b)(4)                      number of      Annual     burden per   Annual burden
                                                           respondents   frequency     response        hours    
----------------------------------------------------------------------------------------------------------------
Existing.................................................       20,249           12       52.333      12,716,291
New......................................................  ...........  ...........  ...........  ..............
Difference...............................................  ...........  ...........  ...........     -12,716,291
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                              Annual                   Average                  
              7 CFR 220.8/nutrient analysis                 number of      Annual     burden per   Annual burden
                                                           respondents   frequency     response        hours    
----------------------------------------------------------------------------------------------------------------
Existing.................................................  ...........  ...........  ...........  ..............
New......................................................     * 12,117          180         .117         255,184
Difference...............................................  ...........  ...........  ...........        +255,184
----------------------------------------------------------------------------------------------------------------
* This estimate uses approximately 20% of schools. Please note that the current OMB approved burden is based on 
  49,962 schools. However, for the purposes of a more accurate comparison, the current burden has been adjusted 
  here to include the same number of schools used to determine the new burden.                                  


----------------------------------------------------------------------------------------------------------------
                                                              Annual                   Average                  
           7 CFR 220.8/food-based menu planning             number of      Annual     burden per   Annual burden
                                                           respondents   frequency     response        hours    
----------------------------------------------------------------------------------------------------------------
Existing.................................................     * 60,585          180         .083         905,140
New......................................................    ** 48,468          180         .083         724,112
Difference...............................................  ...........  ...........  ...........        -181,028
----------------------------------------------------------------------------------------------------------------
* Please note that the current OMB approved burden is based on 49,962 schools. However, for the purposes of a   
  more accurate comparison, the current burden has been adjusted here to include the same number of schools used
  to determine the new burden.                                                                                  
** This estimate uses approximately 80% of schools.                                                             


----------------------------------------------------------------------------------------------------------------
                                                              Annual                   Average                  
                     7 CFR 220.13(i)                        number of      Annual     burden per   Annual burden
                                                           respondents   frequency     response        hours    
----------------------------------------------------------------------------------------------------------------
Existing.................................................        5,658           12           34       2,308,464
New......................................................  ...........  ...........  ...........  ..............
Difference...............................................  ...........  ...........  ...........      -2,308,464
----------------------------------------------------------------------------------------------------------------


[[Page 31190]]

    As required by section 3504(h) of the Paperwork Reduction Act of 
1980, 44 U.S.C. 3504(h), FCS has submitted a copy of this final rule to 
OMB for review of these information collection requirements. Other 
organizations and individuals desiring to submit comments regarding 
this burden estimate or any aspects of these information collection 
requirements, including suggestions for reducing the burdens, should 
direct them to the Policy and Program Development Branch, Child 
Nutrition Division, (address above) and to the Office of Information 
and Regulatory Affairs, OMB, Room 3208, New Executive Office Building, 
Washington, DC 20503, Attention: Laura Oliven, Desk Officer for FCS.
Background

    The primary purpose of the National School Lunch Program (NSLP), as 
instituted by Congress in 1946, was ``to safeguard the health and well-
being of the Nation's children. * * *'' (Section 2 of the National 
School Lunch Act (NSLA), 42 U.S.C. 1751). At that time, nutritional 
concerns in the United States centered on nutrient deficiencies and 
issues of underconsumption. Therefore, over time, meal requirements for 
the NSLP (7 CFR 210.10) were designed to provide foods sufficient to 
approximate one-third of the National Academy of Sciences' Recommended 
Dietary Allowances (RDA). Participating schools were required to offer 
meals that complied with general patterns established by the 
Department. These patterns were developed to provide balanced meals by 
focusing on minimum amounts of specific components (meat/meat 
alternate, bread/bread alternate, vegetables, fruits and milk) rather 
than on the nutrient content of the entire meal. Virtually no 
substantive changes have been made to these patterns since the 
program's inception.
    Over the past 50 years, an array of scientific knowledge has been 
developed which documents that excesses in consumption are a major 
concern because of their relationship to the incidence of chronic 
disease. The typical diet in the United States is high in fat, 
saturated fat and sodium and low in complex carbohydrates and fiber. As 
a result of this accumulating body of scientific research, dietary 
recommendations for the population of the United States were developed 
in the late 1970's. These recommendations were followed in 1980 by the 
Dietary Guidelines for Americans (or Dietary Guidelines), issued 
jointly by the Department of Agriculture and the Department of Health 
and Human Services. These Dietary Guidelines were subsequently updated 
in 1985 and again in 1990. Also in that year, Title III of the National 
Nutrition Monitoring and Related Research Act of 1990 (Public Law (Pub. 
L.) 101-445, 7 U.S.C. 5301, et. seq.) was enacted. This law requires 
that the Dietary Guidelines be reviewed by a panel of experts every 
five years to determine whether the existing standards need to be 
altered and, if so, to recommend changes. As a result of this process, 
the Dietary Guidelines are based on the best available scientific and 
medical knowledge. (Readers wishing a more detailed discussion of the 
development of the Dietary Guidelines should refer to the preamble of 
the June 10, 1994, proposal at 59 FR 30219.)
    The current Dietary Guidelines recommend that people eat a variety 
of foods; maintain a healthy weight; choose a diet with plenty of 
vegetables, fruits, and grain products; and use sugar and sodium in 
moderation. The Dietary Guidelines also recommend diets that are low in 
fat, saturated fat, and cholesterol so that over time, fat comprises 30 
percent or less of caloric intake and saturated fat less than 10 
percent of total calories for persons two years of age and older.
    Information available to the Department consistently shows that 
children's diets, including meals served in schools, do not conform to 
the recommendations of the Dietary Guidelines. Especially significant 
were the findings of a nationally representative USDA study entitled 
the School Nutrition Dietary Assessment (SNDA) study. Released in 
October, 1993, the SNDA study presented findings on the nutrients and 
foods provided in school meals and described the dietary intakes of 
students on a typical school day. The study compared nutrients provided 
in school meals with the recommendations of the Dietary Guidelines on 
fat and saturated fat, the National Research Council's (NRC) Diet and 
Health recommendations on sodium, cholesterol and carbohydrate intake, 
and the current objectives that the nutrients provided in the NSLP meet 
one-third of the RDA and that the School Breakfast Program (SBP) meet 
one-fourth of the RDA.
    The findings from the SNDA study showed that school lunches meet 
the nutrition standards established at the start of the NSLP in the 
late 1940's, but the study also showed that school lunches exceed the 
recommended levels of fat and saturated fat established by the Dietary 
Guidelines. Specifically, the average percentage of calories from total 
fat was 38 per cent compared with the recommended goal of 30 per cent 
or less; and the percentage from saturated fat was 15 per cent, 
compared with the recommended goal of less than 10 per cent. The study 
also found that children who ate the school lunch consumed a 
significantly higher amount of calories from fat than children who 
brought their lunch from home or obtained a lunch from vending machines 
or elsewhere at school. The SNDA study also showed that while school 
meals met the NRC recommendation on cholesterol, the meals did not meet 
the NRC recommendations on sodium or carbohydrate levels. In fact, the 
level for sodium, at 1,479 milligrams, was nearly two times the NRC 
lunch target of 800 milligrams. Even though the SBP did meet most of 
the recommendations in the Dietary Guidelines, the number of lunches 
served in schools far exceeds the number of breakfasts served. It is 
clear, therefore, that school meals do not conform overall to current 
scientific knowledge of what constitutes a healthful diet.
    The SNDA study underscored the fact that the meal patterns have not 
kept up over the years with scientific knowledge about diet. This 
situation is cause for concern because it demonstrates the need for 
significant improvement if the school nutrition programs are to meet 
the objective of the NSLA to safeguard the health and well-being of the 
nation's children.
    As the first step toward achieving meaningful improvement in 
children's diets and, thus, their health and future well being, the 
Department considers it necessary to update the regulations by setting 
specific nutrition criteria for reimbursable school meals including 
incorporating the RDA for key nutrients, energy allowances for 
calories, and the most current nutritional standards as outlined in the 
Dietary Guidelines as requirements for the NSLP and SBP. Before 
proceeding with a rulemaking, however, the Department recognized the 
importance of public input. To obtain this input, the Department 
solicited comments on nutrition objectives for school meals through 
public hearings and written comments. In a notice published in the 
Federal Register (58 FR 47853, September 13, 1993), the Department 
announced a series of four public hearings. Any person who was 
interested could register to speak at any of the hearings. Persons 
unable to testify in person were invited to submit written comments.
    A total of 363 witnesses testified at the hearings, and an 
additional 2,013 written comments were received by the Department, 
representing medical [[Page 31191]] professionals, nutritionists or 
dietitians, public health, nutrition or food organizations (21%); the 
general public (21%); parents and students (21%); school food service 
personnel, school food service organizations and State education/child 
nutrition agencies (16%); teachers, school officials and school 
associations (11%); food industry (7%); and other State or Federal 
agencies or members of Congress.
    In general, commenters voiced support for the goal of more 
nutritious meals which meet the current Dietary Guidelines. However, 
the comments also raised some concerns about paperwork burden, the 
quality of USDA donated commodities and the need for enhanced training 
and education. (Readers wishing a complete analysis of the themes and 
concerns raised by commenters should refer to the preamble of the June 
10, 1994, proposal at 59 FR 30221-30225.)
    From the testimony and written comments, the Department developed 
Guiding Principles and a Framework for Action to address the need for a 
comprehensive, integrated plan to improve school meals. The five 
Guiding Principles are:
    Healthy children--Our goal is to provide our Nation's children with 
access to school meal programs that promote their health, prevent 
disease, and meet the Dietary Guidelines for Americans. 
    Customer appeal--We understand that if food doesn't look good or 
taste good, children will not eat it. We must involve students, 
parents, teachers and the food and agriculture community in any change 
through a national nutrition education campaign, using the media that 
children and parents understand and the language that they speak.
    Flexibility--We have to reduce paperwork, streamline reporting 
systems, recognize regional and economic differences and offer schools 
different approaches to designing menus that meet the Dietary 
Guidelines. To do this, we must use technology more effectively.
    Investing in people--We must provide schools and school food 
service directors with the training and technical assistance they need 
to bring about nutrition changes in the school meal programs and build 
the nutrition skills of our nation's children, and thereby improve 
their health.
    Building partnerships--To meet our national health responsibility 
to American children and to increase cost effectiveness, we must forge 
partnerships throughout the public and private sectors. This includes 
continuing collaborative efforts with our Federal partners at the 
Departments of Education and Health and Human Services and building 
bridges to consumer and industry groups.
    Guided by these five principles, USDA constructed a comprehensive, 
integrated framework for action:
    I. Eating for Health: Meeting the Dietary Guidelines. School meals' 
nutrition standards will be updated and expanded to include the Dietary 
Guidelines for Americans with standards for fat and saturated fat as 
well as required nutrients.
    II. Making Food Choices: Nutrition Education, Training and 
Technical Assistance. It is not enough to change the food on the plate. 
We must also provide the knowledge and the skills that enable children 
to make choices that lead to a nutritious diet and improved health. It 
also is vital that local meal providers receive training on how to 
improve meal quality. This dual initiative to educate children and 
assist meal providers offers many opportunities to influence both what 
foods are offered by schools and what foods are eaten by children.
    III. Maximizing Resources: Getting the Best Value. By marshalling 
all available resources and strengthening partnerships with our State 
and local cooperators, we will stretch food dollars and cut costs while 
improving the nutritional profile of commodities. We will enhance 
access to locally grown commodities and better use regional 
agricultural resources. And we will provide assistance, training and 
the power of Federal purchases to help school administrators manage 
school meal programs in a more cost-effective way.
    IV. Managing for the Future: Streamlined Administration. It is 
necessary to reduce the paperwork and administrative burdens of local 
administrators. We will streamline procedures and emphasize 
administrative flexibility to free State and local food program 
managers to concentrate on nutrition.

June 10, 1994, Proposed Rulemaking

    As an important part of this overall initiative, the Department 
published a proposed rule on June 10, 1994, to update and expand the 
nutrition standards for the school meal programs, to incorporate the 
Dietary Guidelines into the NSLP and SBP regulations and to require 
that school meals meet the applicable recommendations of the Dietary 
Guidelines, including the quantified standards established for fat and 
saturated fat. This proposal also sought to establish new menu planning 
systems that would facilitate compliance with the proposed updated 
nutrition standards, and it included proposals to reduce paperwork and 
streamline program administration at both the State and local levels.
    Under this proposal, school lunches would be required to provide, 
over a school week's menu cycle, one-third of the RDA for protein, 
vitamin A, vitamin C, iron and calcium as well as one-third of the 
energy allowances for calories for the appropriate age/grade group. 
Breakfasts would be required to provide one-fourth of the RDA for the 
same nutrients and for calories over a school week's menu cycle. In 
addition, under the June 10th proposal, by School Year 1998/1999, at 
the latest, both breakfasts and lunches would have been required to 
comply with the recommendations of the Dietary Guidelines, including 
the limitations on fat (30% of total calories) and saturated fat (less 
than 10% of total calories).
    To provide local food service directors with flexibility to meet 
these nutrition goals, the Department proposed to replace the current 
rigid meal patterns with a method of menu planning and preparation 
called Nutrient Standard Menu Planning (NuMenus). Under NuMenus, a 
nutrient analysis is conducted on all foods offered as part of 
reimbursable meals over a school week, and appropriate adjustments are 
made to ensure that the meals meet the nutrition standards. In 
recognition of the fact that some school food authorities may not have 
the computer capability or the access to technical support necessary to 
conduct NuMenus independently, the proposal allowed school food 
authorities to use a modified form of NuMenus, called Assisted NuMenus, 
under which schools could arrange for menu development and nutrition 
analysis by other entities, such as State agencies, consortiums of 
school food authorities or consultants.
    Since meals would no longer have had to conform to the traditional 
five-item meal pattern structure, the Department proposed that a 
reimbursable lunch must include a minimum of three menu items, one of 
which had to be an entree and another which had to be fluid milk. 
(Fluid milk is required by section 9(a)(2)(A) of the NSLA, 42 U.S.C. 
1758(a)(2)(A).) Moreover, if a school participates in ``offer-versus-
serve'' (defined in current regulations at 7 CFR 210.10(e) and 
220.8(a)(3)), the child must select at least two menu items, one of 
which would be an entree. (The Department did not propose to extend the 
requirement concerning entrees to the breakfast program.) Under the 
proposed [[Page 31192]] rule, the nutrients in all menu items or other 
foods offered as part of the reimbursable meal would be analyzed to 
determine whether or not the nutrition standards were being met. 
However, the nutrient analysis would have to be weighted to reflect the 
nutrient and calorie levels that each menu item or food offered 
actually contributed to the meals. Weighting is necessary to indicate 
the proportion the menu items and foods actually represent in the meal 
service offered, rather than simply being an average of the nutrients 
in all of the items listed on the menu.
    The Department also proposed to establish a nutrition monitoring 
system for State agencies which would be coordinated with other 
oversight activities. Under this system, State agency reviewers would 
assess the school's nutrient analysis for the last completed school 
week to determine if the school was applying the correct methodology 
and was properly conducting the analysis. If the State agency's review 
indicated that the school was not conducting NuMenus accurately or was 
not applying Assisted NuMenus properly, or if the meals, as offered, 
did not comply with nutrition standards, the school food authority 
would be required to take appropriate corrective action to achieve 
compliance. The State agency would monitor the school's corrective 
action efforts to ensure that progress was being made toward 
compliance. The State agency would be required to impose fiscal 
sanctions only if the school's violation was intentional or the school 
refused to comply with the corrective action plan.
    Finally, the Department proposed three provisions to streamline 
program administration. The first of these would extend the Coordinated 
Review Effort (CRE) review cycle from four to five years, thereby 
providing State agencies with additional flexibility to undertake 
technical assistance and corrective action efforts. The second 
provision would eliminate the regulatory requirement for a specific 
type of edit check on daily meal counts if no meal counting or claiming 
problems were identified on the most recent CRE review. Instead, a 
school food authority could develop and implement its own system of 
internal controls to ensure the accuracy of claims. Lastly, the 
Department proposed removing the regulatory requirement that school 
food authorities maintain records specifically to document the 
nonprofit status of their food service. Rather, the records kept as a 
normal part of operating a business would suffice.
    The Department established a 90-day comment period on this 
proposal, which expired on September 8, 1994. During this period, the 
Department received over 14,000 comments. The following shows the 
number of commenters by class which were received on the June 10, 1994, 
proposed rule as well as those received on the January 27, 1995, 
proposal which is discussed in more detail below:

------------------------------------------------------------------------
                                                                 January
                                                      June 10,     27,  
                                                        1994,     1995, 
                                                      proposed  proposed
                                                        rule      rule  
------------------------------------------------------------------------
General public/others...............................     1,112         9
Parents/Grandparents/students.......................     1,967         0
School food service.................................     9,894       199
Medical/Registered dieticians/Public health/Food                        
 organizations......................................       262        26
Teachers/Professors/School organizations............       661        79
Food industry/Chefs.................................       180        50
Federal agencies/Congress...........................        16         0
                                                     -------------------
      Totals........................................    14,092       363
------------------------------------------------------------------------

    All of these comments were considered, and a detailed discussion of 
the major issues and concerns raised by commenters occurs later in this 
preamble.
Public Law 103-448 and the January 27, 1995, Proposed Rulemaking

    Before the Department could finalize the June 10, 1994, proposal, 
Pub. L. 103-448, the Healthy Meals for Healthy Americans Act of 1994, 
was enacted on November 2, 1994. This law essentially codified the 
major provisions of the June 10th proposed rule. However, the law did 
mandate compliance with the Dietary Guidelines by School Year 1996/
1997--two years earlier than the Department had proposed--although 
State agencies are authorized to waive implementation on a case-by-case 
basis until School Year 1998/1999. Public Law 103-448 also provided 
that schools could elect to use a ``food-based'' system of menu 
planning and preparation in lieu of NuMenus or Assisted NuMenus. The 
law further directed the Department to hold a public meeting with 
affected parties within 45 days of publication of a proposed rule to 
implement the nutrition-related provisions of Pub. L. 103-448. Because 
of the need to expedite the rulemaking activity, the law (section 
112(c) of Pub. L. 103-448, 42 U.S.C. 1760(k)(2)) specifically exempted 
this meeting from the procedures normally required under the 
Administrative Procedure Act.
    On January 27, 1995, the Department published a rule (60 FR 5514) 
proposing to incorporate the statutory requirement of section 106(b) of 
Pub. L. 103-448 (42 U.S.C. 1758(f)(1)) that school meals conform to the 
Dietary Guidelines by School Year 1996/1997, unless a waiver of up to 
two years is authorized by the State agency. The rule also proposed 
revisions to the existing meal pattern to enable schools using a 
``food-based'' menu planning system to comply with the updated 
nutrition standards including the recommendations of the Dietary 
Guidelines. Finally, the proposal included a provision for State agency 
monitoring of food-based menu planning systems to ensure compliance 
with the nutrition standards, similar to the monitoring provisions 
proposed for NuMenus and Assisted NuMenus.
    In developing the proposed food-based menu planning system, the 
Department retained the component structure of the current meal 
patterns for lunches and breakfasts because their familiarity would 
facilitate implementation at the local level. However, the Department 
proposed revisions to the age/grade groups: Two mandatory age/grade 
groupings: kindergarten through grade 6, and grade 7 through grade 12, 
with an optional grouping for kindergarten through grade 3. These 
groups are designed to reflect the need to distinguish the nutrient and 
caloric needs of younger and older children while also accommodating 
the grade structures of the majority of schools.
    Moreover, the Department did not propose any reductions to the 
current minimum quantity requirements for any components. The principal 
differences between the proposed food-based menu planning system and 
the current meal patterns reflect increases in the quantities of 
vegetables/fruits and breads/grains products for reimbursable lunches. 
This change was intended to maintain calories while reducing fat. For 
children in kindergarten through grade 6, the Department proposed that 
the serving of fruits/vegetables be three-quarters of a cup per lunch 
plus an additional one-half cup served over a five-day period. The 
proposal set the minimum quantity of vegetables/fruits to one cup per 
lunch for children in grades 7 through 12.
    With respect to grains/breads, the proposal would require that the 
number of lunch period servings per week for children in kindergarten 
through grade 6 be increased from the current 8 to 12. For children in 
grades 7 through 12, the number of servings would be increased from 8 
(10 recommended) to 15 per week. To provide schools with 
[[Page 31193]] flexibility in meeting this requirement, the proposal 
further allowed one serving per day to be in the form of a grain-based 
dessert, such as rice pudding.
    The Department proposed no changes to the quantity and component 
requirements for breakfasts. However, the proposal encouraged school 
food authorities to offer children in grades 7 through 12 an additional 
serving of the grains/breads component each day. This optional increase 
was intended to provide sufficient calories to meet the needs of 
adolescent children, especially males, when the fat content was 
modified to conform to the Dietary Guidelines.
    Finally, to provide sufficient State agency oversight of meal 
services employing a food-based menu planning system, the Department 
proposed to have State agencies conduct a nutrient analysis of one 
week's meals using the school's menus and supporting production 
records. Under the proposal, the State agency would be required to do 
the nutrient analysis once every five years and could combine the 
analysis with administrative review activity. As noted above, all 
school food authorities will be required, beginning with School Year 
1996/1997, unless the requirement is temporarily waived, to comply with 
the Department's nutrition standards, including the Dietary Guidelines. 
Since schools using a food-based planning system will not generally be 
conducting routine analyses of their meals and, therefore, will have no 
records documenting compliance, it will be necessary for the State 
agency to determine whether or not the way the school is using the 
food-based menu planning system actually produces meals that meet the 
nutrition standards. In the interests of flexibility, however, the 
proposal also would have authorized the Department to approve 
alternative review methodologies proposed by a State agency if they 
provided the same degree of assurance that school meals are in 
compliance with all nutrition standards.
    The Department allowed a 45-day comment period, during which 363 
comment letters were received. (See chart earlier in this preamble for 
a detailed list of the number of commenters by type.) Moreover, on 
February 17, 1995, the Department conducted a public meeting and 
invited representatives of the health, nutrition, education, food 
service and food industry communities to participate. Members of the 
general public were also invited to attend and address the meeting. 
Twenty-six persons spoke at this meeting, and their comments were also 
analyzed and considered in developing this final regulation.

Development of the Final Rule

    This final rule incorporates provisions from both the June 10, 
1994, and the January 27, 1995, proposed rules. In finalizing the two 
proposals, the Department established the same nutrition standards for 
all menu planning approaches, including the key nutrients that must be 
met. In essence, this rule provides an array of menu planning methods 
for school food authorities to choose from to meet the Dietary 
Guidelines. The remainder of this preamble addresses the key issues 
raised by commenters on both proposals.
Nutrition Standards: Dietary Guidelines, RDA and Calories

    As mentioned earlier, both proposals would have incorporated the 
Dietary Guidelines as well as specific standards for RDA and calories 
into the NSLP and SBP regulations. Under the proposals, school lunches 
would be required to meet one-third of the RDA for protein, vitamin A, 
vitamin C, iron and calcium as well as one-third of the Recommended 
Energy Intake (calories). School breakfasts would be required to 
provide one-fourth of the RDA for the same nutrients and calories. 
Moreover, in the June 10, 1994, rulemaking, the Department proposed 
incorporation of the recommendations of the 1990 Dietary Guidelines 
appropriate for school meals and announced its intention to review 
modifications or additions in subsequent issues of the Dietary 
Guidelines for possible future inclusions in the applicable program 
regulations. The proposed rulemaking also would have required full 
implementation by School Year 1998/1999.
    However, section 106(b) of Pub. L. 103-448, the Healthy Meals for 
Healthy Americans Act of 1994, amended section 9 of the NSLA, 42 U.S.C. 
1758(f)(2)(C), to require that school meals meet the recommendations of 
the Dietary Guidelines in School Year 1996/97. The January 27, 1995, 
proposal, therefore, included this requirement along with the statutory 
authority for State agencies (provided by section 106(b) (42 U.S.C. 
1758(f)(2)(B)) to waive implementation on a case-by-case basis until no 
later than School Year 1998/1999. Section 106(b) of Pub. L. 103-448 (42 
U.S.C. 1758(f)(1)(B)) also requires compliance with the Dietary 
Guidelines as they evolve. That is, the Department will adjust the 
nutritional standards of the NSLP and SBP if and when changes are made 
to the Dietary Guidelines.
    Over 2,000 of the more than 14,000 commenters on the June 10, 1994, 
proposal addressed the Dietary Guidelines; of these, nearly 1,800 
supported their use as the basis for the nutrition standards for school 
meals. In addition, over 900 commenters from the school food service 
community felt that the Dietary Guidelines could be implemented faster 
if they had the option to plan and prepare meals using a food-based 
menu planning system. Also, these commenters felt that a food-based 
menu planning system would support the goal of the Dietary Guidelines 
to increase consumption of fruits and vegetables. The basis for this 
latter comment was a perception that nutrient analysis seemed to focus 
on the nutrient content of individual foods rather than emphasizing the 
food groups, especially as depicted by the Food Guide Pyramid, jointly 
issued by the Department of Health and Human Services and USDA. The 
Department wishes to note that both proposals, as well as this final 
rule, reflect the Dietary Guidelines which the Food Guide Pyramid 
presents visually. The Department fully intends to continue using the 
Pyramid to promote nutritionally sound diets for the American people, 
and the Department expects the Pyramid to continue making a major 
contribution to nutrition education in the school meal programs and 
among the general public.
    In view of the support by commenters, the scientific consensus 
recommending the Dietary Guidelines and the subsequent statutory 
provisions, the Department is incorporating the appropriate 
recommendations of the Dietary Guidelines into this final rule at 
Sec. 210.10(b) (3) and (b)(4) and Sec. 220.8(a) (3) and (4), and is 
requiring compliance with these recommendations by School Year 1996/97 
unless a waiver not to exceed two years (to School Year 1998/99 at the 
latest) is authorized by the State agency (Sec. 210.10(o) and 
Sec. 220.8(m)). The law does provide the Department with the authority 
to establish a later date for compliance (42 U.S.C. 1758(f)(2)(B)), but 
the Department does not consider a general extension appropriate given 
the importance of implementing the Dietary Guidelines as expeditiously 
as possible. As noted above, the statute (42 U.S.C. 1758(f)(1)(B)) also 
requires compliance with the most recent Dietary Guidelines. Therefore, 
this final regulation specifies compliance with the 1990 Dietary 
Guidelines, the most recent version to date. The Department will revise 
the school nutrition standards as necessary in the future to 
incorporate any [[Page 31194]] appropriate updates to the Dietary 
Guidelines.
    Over 1,700 commenters specifically addressed the proposed 
provisions to implement the Dietary Guidelines' recommendation on 
limiting the levels of calories from fat and saturated fat. The 
majority of these commenters were parents and students. Many parents 
were concerned that the levels established by the Dietary Guidelines 
were too low for children and that overemphasizing the need to limit 
fat would lead to eating disorders. Other commenters suggested that the 
level for fat be set at 32 per cent, not 30 per cent, because they 
believed that student participation might decline if fat is reduced too 
much. The Department notes, however, that approximately three-quarters 
of the comments received from the public health sector agreed with the 
proposed levels.
    The final regulation includes the current recommendations of the 
Dietary Guidelines for fat and saturated fat as proposed because the 
Dietary Guidelines represent the best scientific knowledge on nutrition 
currently available for everyone above the age of two. Moreover, 
Congress mandated that school meals comply with the Dietary Guidelines 
in recognition of the fact that they represent scientific consensus. 
Given this statutory mandate, the Department has no authority to alter 
the current recommendations regarding limits on fat and saturated fat.
    The Department recognizes the importance of encouraging children to 
accept meals with reduced fat content. Merely enacting policies will 
not accomplish change. That is why USDA established Team Nutrition to 
implement ``Making Food Choices,'' our nutrition education, training 
and technical assistance effort. The mission of Team Nutrition is to 
improve the health of children by creating innovative public and 
private partnerships that promote healthy food choices through the 
media, schools, at home and the community.
    As part of this overall effort, the Department has established the 
Children's Nutrition Campaign--a multi-faceted education program 
delivered through the media, in schools and at home that builds skills 
and motivates children to make healthy food choices. The campaign will 
bring proven, focused, science-based nutrition messages to children in 
a language that they understand while strengthening social support for 
children's healthy food choices among parents, educators and food 
service professionals. To accomplish this goal, the Department is 
building partnerships with public and private sector organizations, 
such as the Walt Disney Company, Scholastic Inc. and the National PTA 
to name only a few.
    The Department is also promoting a Training Plan for Healthy School 
Meals--a strategic plan for ``change-driven'' training to provide 
support to school food service personnel implementing the Dietary 
Guidelines. Through this plan, the Department will ensure that school 
nutrition and food service personnel have the education, motivation, 
training, and skills necessary to provide healthy meals that are 
appealing to the children and meet the nutrition standards established 
by this rule. As initial steps in this approach, the Department has 
developed improved recipes for schools and is working with the American 
Culinary Federation to share recipes and techniques in food preparation 
with the school food service community.
    In Fiscal Year 1995, the Department is also awarding $4.4 million 
in Team Nutrition Grants to enable States to start or expand training 
and technical assistance activities for local food service personnel. 
The Department expects these grants to result in more expeditious 
compliance with the Dietary Guidelines.
    The Department considers that providing accurate information about 
nutrition through the Children's Nutrition Campaign, as well as 
assistance with meal planning and preparation offered through the 
Training Plan for Healthy School Meals, will go far toward maintaining, 
or even increasing, participation in more healthful school meal 
programs.
    To comply with the Dietary Guidelines, schools will also need to 
decrease the levels of sodium and cholesterol and increase the amount 
of dietary fiber and total carbohydrates in school meals. The 
Department did not propose specific levels for these components because 
numeric targets are not established by the current Dietary Guidelines. 
However, progress in this area will be assessed in a variety of ways 
including gradual reductions in sodium, and if necessary, cholesterol 
levels, and increased use of vegetables, fruits and grain products.
    In addition, the Department did not propose measuring sugar or 
carbohydrate levels or the school's success in offering a variety of 
foods. As stated in the June 10th proposal, specific levels are not 
established by the current Dietary Guidelines for these components. The 
Department believes, however, that the provisions of this final rule 
actively promote an increase in the amount and variety of fruits, 
vegetables and grain products in school meals.
    Approximately 2,600 comments addressed one or more of the above 
issues. The large majority of these were from school food service 
personnel, although more than 250 were from the public health 
community, with the majority of these agreeing with the Department's 
decision not to establish numeric levels. With respect to the 
recommendations on sodium, dietary fiber, and cholesterol, the number 
who supported including the recommendations without specific limits was 
about the same as the number who wanted a specific limit. For sugar and 
other carbohydrates, the majority suggested that the Department 
establish numeric levels. At this time, the Dietary Guidelines do not 
recommend quantitative levels of sodium, fiber, cholesterol, sugar or 
carbohydrates. Therefore, the final rule does not establish any numeric 
standards for any of these nutrients or dietary components. The 
provisions on the Dietary Guidelines are found at Sec. 210.10(b) and 
Sec. 220.8(a).

Additional RDA/Tolerances for RDA
    Over 300 commenters, approximately half from the school food 
service community, addressed the minimum standards for RDA and 
calories. Some commenters recommended additional nutrients that should 
be measured such as: potassium, thiamine, riboflavin, copper, 
magnesium, zinc and B vitamins. Others asked that tolerance levels for 
meeting the required nutrients and calorie levels be established. As 
stated in the June 10th proposal, the included nutrients were chosen 
because they are the key nutrients that promote growth and development. 
Moreover, the presence of some of these nutrients is an indication that 
other important nutrients such as those suggested by commenters are 
present as well. Further, they are consistent with those required in 
the Nutrition Labeling and Education Act of 1990 (Pub. L. 101-535) and, 
thus, are clearly identified on labels or food specifications. The 
Department considers that measurement of nutrients would be too complex 
and burdensome if they are not included on labels. Therefore, the 
Department does not intend to add any other nutrients to those already 
proposed. Finally, with respect to tolerances, the Department does not 
consider it appropriate to include them as part of the regulatory 
standards, since those standards represent minimums which school food 
authorities should always strive to meet. The Department also notes 
that, as will be discussed later in this preamble, 
[[Page 31195]] schools which are making good faith efforts to comply 
will not be held fiscally accountable if they do not meet the standard 
precisely. The RDA requirements are found at Sec. 210.10(b) and 
Sec. 220.8(a).

Menu Planning Systems

    As discussed above, the June 10, 1994, proposal would have required 
all school food authorities to plan and prepare meals using Nutrient 
Standard Menu Planning (NuMenus) or its corollary, Assisted Nutrient 
Standard Menu Planning (Assisted NuMenus). Over 8,600 commenters 
addressed the concept of NuMenus. The large majority were from school 
food service personnel. Many of these comments stated that the NuMenus 
concept was too complex and inflexible and that it, and Assisted 
NuMenus, should just be options for menu planning. Some commenters felt 
that the proposed system would have the effect of reducing choices for 
students and would lower the quality of meals served because of 
perceived increases in costs associated with implementation and 
training.
    Further, over 2,500 commenters addressed the concept of Assisted 
NuMenus. Approximately half of these commenters were from the school 
food service area, while more than 700 were students or their families, 
over 250 were teachers or other school officials, and over 300 from 
other sources. Nearly 900 commenters believed Assisted NuMenus was 
inflexible, and about 450 found the system too complex. More than 200 
commenters specifically recommended that schools without the resources 
for NuMenus be allowed to continue using a meal pattern. Other 
significant issues involved concerns about costs, possible outside 
control over menus and lack of responsiveness to local needs. Finally, 
a few commenters requested that the Department provide a set of menus, 
recipes, procurement specifications and preparation techniques.
    In addition to the issues raised about menu choices and costs, the 
Department notes that many commenters were primarily concerned about 
being required to adopt NuMenus or Assisted NuMenus. The Department 
would like to point out that many commenters underestimated the 
flexibility of nutrient standard menu planning. In fact, this system is 
inherently flexible since meals would no longer be restricted to 
specific components and quantities. In addition, nutrient standard menu 
planning supports accommodation of ethnic, regional, and vegetarian 
choices. The concern about limiting menu planning options was addressed 
by the January 27, 1995, proposal that allows schools to elect a food-
based menu planning system in lieu of NuMenus or Assisted NuMenus. The 
Department is retaining NuMenus and Assisted NuMenus in this final 
regulation (at Sec. 210.10 (i) and (j) and Sec. 220.8 (e) and (f)) 
because it continues to believe that these two systems can be valuable 
menu planning options in that they allow maximum flexibility. In fact, 
these are the only systems that the Department has identified which 
allow menu planners to assess their actual compliance with the 
quantified recommendations of the Dietary Guidelines and the other 
nutrition standards. The Department also notes that section 
9(f)(2)(C)(i)(II) of the NSLA, as amended by section 106(b) of Pub. L. 
103-448, requires that these two systems be available to local school 
food authorities. The Department acknowledges that Assisted NuMenus may 
be less responsive to local conditions than NuMenus, but it still 
provides a viable option for schools which are unable to conduct 
nutrient analysis themselves, but do not wish to continue with a more 
rigid meal pattern approach. Furthermore, unlike the food-based system, 
Assisted NuMenus will provide schools with accurate analyses of the 
nutrient content of the meals they are serving so that schools will be 
better able to determine their level of compliance with the Dietary 
Guidelines and other nutrition standards, thus alerting schools to 
needed menu adjustments. A more detailed discussion of the proposed 
methodology occurs later in this preamble.

National Nutrient Database for the Child Nutrition Programs

    Successful conduct of nutrient analysis requires accurate 
information about the nutrient content of foods. To meet this need, the 
Department has developed a centralized National Nutrient Database that 
provides standard reference information on the foods and recipes used 
in the NSLP and SBP. As described in the preamble to the June 10, 1994, 
proposal (59 FR at 30229-30), this database contains information on the 
nutritional composition of (1) commodities supplied by the Department, 
(2) standard reference food items used in the NSLP and SBP, (3) 
Quantity Recipes for School Food Service developed by the Department 
and (4) commercial products for which the manufacturer has submitted 
nutrient analysis. The proposal, at Sec. 210.10(k)(1) and 
Sec. 220.8(j)(1), required that this database be incorporated into all 
software systems used to support NuMenus and Assisted NuMenus, and the 
Department gave assurance that the database would be made available 
free of charge to software companies and would be regularly updated to 
ensure that the database is as accurate and current as possible.
    The Department received about 150 comments specifically on the 
database, primarily from school food service personnel. Most of the 
commenters were concerned that it might be too difficult to add local 
recipes to the database, while a few believed it would prove difficult 
to add locally available processed foods. Finally, there was some 
concern that food processors might be required to pay a fee to have 
their products included in the database.
    The Department recognizes that the effectiveness of this database 
is partially dependent on the willingness of the food industry to 
submit data about their processed products. To ensure that processed 
foods are well represented in the database, the Department has met with 
food industry representatives to resolve issues related to the 
submission of processed food information. As a result of these 
meetings, the Department has taken a number of actions to improve the 
submission process. For example, the data submission disk has been 
revised to make data entry easier, and the Department is accepting 
unrounded data generated by the food industry and some provisional 
data. The Department has also reduced the details which must be 
reported for quality control purposes and has given industry greater 
flexibility in submitting samples of their laboratory results. The 
Department will continue to work with the food industry to improve the 
system for including processed foods in the database. The Department 
also wishes to emphasize that, while processors may pay to have their 
products analyzed, there is no fee for having the product included in 
the database. Finally, while the Department's database will not include 
local recipes and locally available processed foods, the software being 
developed for schools to use in nutrient analysis will have a feature 
allowing the incorporation of local recipes and products.

School Food Service Software Systems

    The Department acknowledges that computer software is essential to 
NuMenus and Assisted NuMenus, since without effective software it would 
be nearly impossible for school food authorities to conduct the 
mathematical and analytical tasks associated with nutrient analysis. 
Therefore, the June 10, 1994, proposal required school food 
[[Page 31196]] authorities to use a software system that FCS had 
determined met a set of minimum requirements. The Department is 
undertaking software evaluation as a means of providing technical 
assistance to local schools seeking to implement NuMenus or Assisted 
NuMenus. While the determination would not constitute an endorsement by 
either FCS or the Department, it would ensure that the software used by 
local school food authorities has been proven to support the program 
requirements for NuMenus and Assisted NuMenus. All approved software 
will perform the following specific operations: (1) Compute a weighted 
nutritional analysis of meals, (2) weight and average the RDA to 
establish new nutrient standards, (3) convert the nutritional analysis 
information on any label to 100 grams, (4) create and analyze recipes 
and (5) print a calendar format. Also, the software will provide for a 
local database into which local recipes and locally available processed 
foods can be loaded for analysis. The Department intends to continue 
working with the computer software industry to develop and improve 
software applications for nutrient analysis. The Department is also 
currently working with the software industry to modify their packages 
to allow for a combined weighted breakfast/lunch analysis for those 
schools wishing to take advantage of this menu planning option. The 
database requirements are found at Sec. 210.10(i)(4) and 
Sec. 220.8(e)(4).
    The Department received approximately 4,800 comments on the 
software requirements. Nearly 3,700 commenters, primarily from those in 
school food service, raised concerns about the cost of computers and 
software needed for NuMenus and Assisted NuMenus. Over 950 commenters 
believed the Department should provide or pay for the software, while 
over 2,700 maintained that the equipment and software would be too 
costly for local schools. The remainder raised concerns about the 
complexity of these systems and the need for adequate training.
    The Department appreciates these concerns but does not believe it 
would be appropriate or practical for the Department to develop 
software because local schools must have flexibility to select the 
software that is best for their particular circumstances. If the 
Department were to provide a specific package, it would not be 
compatible with the variety of computer systems currently in use, and 
in many cases would not include additional applications which the local 
school might want. The Department notes that the price of computer 
hardware and software will vary widely, depending on several factors, 
including the ability of the software to perform additional functions 
such as maintaining inventory. Nevertheless, some approved software is 
already available at nominal cost. The Department anticipates that, as 
competition in this field increases, market forces will make approved 
software even more affordable. It also must be recognized that, when 
averaged over the life of the software and the number of meals being 
served, the acquisition cost should be quite modest.
    Finally, given the range of software which the Department 
anticipates being available for local schools to choose from, it would 
not be possible for the Department to provide uniform training. 
However, software companies routinely provide detailed training as part 
of the cost of software, so local schools should not experience any 
significant extra cost for training.

Weighted Averages

    Sections 210.10(k)(2) and 220.8(j)(2) of the June 10, 1994, 
proposal would have required school food authorities to determine 
compliance with the nutrition standards by conducting a weighted 
analysis of all foods served to children as part of their reimbursable 
meals. Thus, if children are offered a choice of more than one entree 
(e.g., pizza and fish sticks) the analysis would give more weight to 
the nutrients in the more popular item and correspondingly less weight 
to those in the less popular item. For example, if 75 percent of the 
children select pizza and 25 percent select fish sticks, the nutrients, 
calories and other components of the pizza would count for three times 
as much as those in the fish sticks. The purpose of this procedure is 
to ensure that the menu planner receives an accurate picture of the 
entire food service's compliance with the nutrition standards and to 
avoid situations in which token items on a menu could make the meal 
service appear to be in compliance even though these items are rarely 
selected.
    The Department received nearly 3,000 comments on this provision, 
over 2,700 from school food service personnel. While a few commenters 
agreed with the proposal, nearly 1,300 maintained that the procedure 
would be too complex, and nearly 100 specifically cited the difficulty 
of separating out the a la carte service of items that are also part of 
a reimbursable meal. Approximately 1,000 commenters raised concerns 
about potential increases in paperwork and meal costs as well as the 
possibility that schools would limit choices, thereby reducing 
participation. Many commenters contended that school food authorities 
would be held accountable for children's food preferences, but that 
children frequently do not select foods that are best for them. Some 
commenters recommended alternatives to weighted analysis, such as 
averaging the nutrients in all of the menu items regardless of whether 
or not the items are routinely selected or averaging the nutrients in 
the most popular entrees (up to a maximum of three if more than three 
are offered), the method employed in a Nutrient Standard Menu Planning 
demonstration project in California.
    The Department appreciates commenters concerns and recommendations. 
With respect to concerns about cost and complexity, the Department 
notes that the software designed to accommodate NuMenus and Assisted 
NuMenus will have the capacity to perform a weighted nutrient analysis 
just as it performs other calculations. Food service personnel, 
therefore, should experience much less difficulty with weighted 
nutrient analyses than they predicted in their comments. Moreover, 
while it may be necessary in some cases for schools to account for menu 
and a la carte items separately, in most cases school food service 
personnel will be able to make reliable estimates of the proportion of 
menu items that will be sold a la carte based on their experience. The 
Department does acknowledge that menu planners in centralized food 
services may experience some complexity in dealing with different 
preference patterns in different schools. The Department is confident, 
however, that school districts will be able to work out appropriate 
procedures that will not be overly burdensome to individual schools.
    In addition, the Department stresses that the value of nutrient 
analysis is that it provides a tool for accurately measuring the degree 
to which the meals provided to children meet the nutrition standards. 
This measurement does not, in itself, penalize the schools. In fact, 
the Department believes that it is in the school's interest to have an 
accurate picture of its meal service. Without a weighted average, 
schools will be unable to track the relationship between what they 
offer and what is accepted, or the effects of introducing new foods or 
using modified cooking techniques. In the absence of the complete 
picture that weighted analysis provides, there is little incentive for 
the school to make changes in its menus or to know how best to 
undertake nutrition education. [[Page 31197]] 
    Finally, the Department does not consider that the alternatives 
proposed by commenters would represent improvements over the proposed 
methodology. While a straight average of the nutrient values of all 
menu items would measure the nutrients in the foods available to the 
children, there would be little, if any, correlation between the 
nutrient analysis and the actual nutrition value of the meals consumed 
by the children. The Department's experience with the Nutrient Standard 
Menu Planning pilot project conducted during School Years 1983-1985 
suggests that an unweighted analysis can, in fact, bias the results. 
Although that project did not track fat or saturated fat, certain foods 
with high iron content were sometimes offered but were rarely taken by 
students. Consequently, an unweighted analysis of menu items made it 
appear that children were receiving meals that met the standards for 
iron when, in fact, they were not.
    These disadvantages apply equally to an analysis which averages the 
three most popular entrees. While on the surface, this method appears 
to provide a middle ground between weighting everything that is 
produced and averaging everything that is on the menu, in fact it does 
not provide accurate information about the overall meal service. For 
example, if a school served 100 helpings of pizza, 25 helpings of fish 
sticks and 5 chef salads, a simple averaging of the three items would 
not accurately reflect the actual meal service. Moreover, schools using 
this method would need to develop a way of accounting for the nutrients 
in side dishes and milk. Finally, it would not enable schools to track 
changes in children's food habits and would provide no incentive for 
introducing new foods or modifying cooking methods.
    Nutrition analysis is significantly weakened without a weighting 
component. It is only through weighting that schools can develop more 
healthful and nutritious meals and track improvements in children's 
diets. The Department believes approved software packages will 
alleviate many of the concerns of local personnel, especially as they 
become more familiar with the software applications over time. 
Therefore, this final rule incorporates, at Sec. 210.10(i)(5) for the 
NSLP and Sec. 220.8(e)(5) for the SBP, the proposed requirements that 
NuMenus and Assisted NuMenus be based upon a weighted analysis of the 
foods produced.

Menu Adjustments Under Assisted NuMenus
    The Department also wishes to address a proposed provision of 
Assisted NuMenus which was widely misunderstood. This provision 
(Sec. 210.10(l)(4) and Sec. 220.8(k)(4) of the proposed rule) required 
a reanalysis of the Assisted NuMenus cycles when adjustments to menu 
offerings are needed to reflect changes in student preferences and 
participation or increased emphasis on meeting nutrition standards. It 
is important that the school food authority be alert to shifts in 
participation trends, as well as such factors as modifications to USDA 
commodities or food purchased in the market, since these changes can 
affect the degree to which menus continue to meet the nutrition 
standards. This information must be conveyed to whomever prepares the 
menus so that the recipes and menus can be reanalyzed and appropriate 
adjustments made. In accepting a set of menus from an outside source, 
the school food authority needs to confirm that there is a ready 
mechanism for making the necessary adjustments to the menu cycle and 
its accompanying segments. The Department emphasizes, however, that 
such adjustments do not have to be made routinely to reflect minor 
changes in participation or preference. On the contrary, the Department 
believes that adjustments would be necessary only when the school 
experiences significant fluctuations in student consumption patterns or 
as the school continues to improve meal quality by changing its menus. 
Therefore, this proposed provision is retained at Sec. 210.10(j)(4) and 
Sec. 220.8(f)(4).
    Finally, the Department recognizes that Assisted NuMenus may not be 
suitable for all schools. However, for those schools whose 
circumstances lend themselves to this menu planning option, the 
Department will be providing technical assistance materials. In 
accordance with section 9(f)(2)(C)(i)(II) of the NSLA (as amended by 
section 106(b) of Pub. L. 103-448), the Department is developing a 
cycle menu with accompanying recipes, food product specifications and 
recommended food preparation methods. These guidance materials will 
enable local schools to prepare meals which meet the nutrition 
standards.

Combining Analysis of Breakfasts and Lunches

    The June 10, 1994, proposal would have required school food 
authorities to conduct separate analyses of lunches and breakfasts. 
This requirement was based on the fact that breakfasts, as documented 
by the SNDA study, are generally in compliance with the Dietary 
Guidelines. A combined analysis, therefore, might tend to disguise 
situations in which no significant improvements were being made to the 
nutritional quality of lunches. Moreover, since the number of children 
participating in the breakfast program is a fraction of the children 
eating school lunches, a straight average of the two meal services 
would not provide an accurate reflection of the food service for the 
majority of children.
    The Department received nearly 900 comments on this proposed 
provision. Over two-thirds came from school food service professionals, 
although more than 130 of the comments were from the general public. 
All but three comments recommended combining the analyses of breakfast 
and lunch, generally on the grounds that the Dietary Guidelines are 
intended to apply to total consumption rather than to individual meals.
    The Department agrees that it can be useful to measure the 
compliance of the entire food service. Therefore, the final rule is 
being revised to give schools the option of conducting a combined 
analysis provided the meal services are properly weighted for 
participation (Sec. 210.10(i)(5)(iii) and Sec. 220.8(e)(5)(iii)). The 
Department notes, however, that even though the software will handle 
the additional calculations, menu planners may find that this method 
does not have any significant practical effect on their ability to 
achieve the required nutrition standards, since breakfast represents a 
relatively small portion of the overall meal service.

Reimbursable Meals Under NuMenus and Assisted NuMenus

    Currently, school food authorities receive reimbursement for each 
meal served to children that meets the meal pattern requirements for 
lunch or breakfast. Basically, the minimum quantity of all the required 
components (meat/meat alternate, bread/bread alternate, two different 
fruits/vegetables and fluid milk) must be offered, and a minimum number 
of items (at least three if the school employs ``offer-versus-serve'' 
(OVS)) must be selected. In order to determine if the meal chosen by 
the child is reimbursable, the cashier observes, at the point of 
service, if the proper number of components has been taken.
    Under NuMenus and Assisted NuMenus, however, schools will have the 
flexibility to vary the amounts and quantities of individual foods as 
needed to achieve compliance with the nutrition standards. 
Nevertheless, it will [[Page 31198]] still be important that each 
reimbursable meal include a minimum number of food items for the 
following reasons. First, there needs to be a reasonable standard for 
Federal reimbursement. Secondly, a reimbursable meal must be easily 
recognizable at the point of service so that it can be counted 
accurately. Finally, it is preferable that children receive a minimum 
amount of nutrients from every meal rather than experiencing large 
fluctuations from day to day.
    Therefore, the Department proposed that under NuMenus and Assisted 
NuMenus, a lunch would be reimbursable if at least three menu items 
(one must be an entree and one fluid milk) were offered, and, if the 
school does not participate in OVS, all menu items are taken. If the 
school participates in OVS, a lunch would be reimbursable if at least 
three menu items were offered (again, one must be an entree and one 
must be fluid milk), and at least two menu items (including the entree) 
were selected. For the SBP, at least three menu items had to be offered 
and at least two taken under OVS. The entree requirement was not 
extended to the SBP. The proposal ensured that children would receive 
appropriate daily levels of nutrition and that cashiers would continue 
to be able to determine easily if the meal selected by the child was 
reimbursable.
    The Department received nearly 1,300 comments stating that a 
minimum of two items for OVS was not adequate. About 700 of these 
commenters were concerned that allowing children to take as few as two 
items would not support nutrition education efforts or provide 
sufficient calories. Further, they felt that only two items under OVS 
would undermine efforts to have meals comply with the Dietary 
Guidelines.
    The Department agrees that the number of items which children may 
decline should be limited. Therefore, this final rule revises the 
proposed definition of a reimbursable lunch when schools using NuMenus 
or Assisted NuMenus also participate in OVS. For lunches in these 
situations (at Sec. 210.10(i)(2)(ii)), the child must select at least 
two items (the entree and one other) and may decline no more than two 
items. Thus, when a school offers a meal with five or more items, the 
student may decline only two items and must take three or more. Under 
the proposal, the student would have been required to accept only two 
items and could have declined three or four items in a five or six item 
meal. The entree, of course, could not have been declined. For the SBP, 
the current requirement that the child may decline only one item is 
retained at Sec. 220.8(e)(2)(ii). Consequently, the amount of food 
taken by the child under NuMenus and Assisted NuMenus will at least 
equal, and in many cases will exceed, the amount taken under the old 
meal pattern requirements.
    The Department does wish to address what appears to be a 
misunderstanding on the part of some commenters regarding the term 
``menu item'' as it is used in NuMenus and Assisted NuMenus. Under a 
meal pattern system, food items are generally viewed as satisfying one 
or more components. For example, a helping of spaghetti and meatballs 
will supply the meat/meat alternate and grain/bread components of the 
meal as well as one of the fruit/vegetable components. The same holds 
true for many popular foods, such as lasagna, pizza or chef salads. If 
schools use a meal pattern menu system and participate in OVS, the 
child would have to take the spaghetti and meatballs, since 
collectively that dish includes three components, but could decline the 
second vegetable/fruit item or the milk.
    Under a system of nutrient analysis, however, spaghetti and 
meatballs is a single menu item (in this case, an entree) which 
contributes specific nutrients. If, therefore, the school offered this 
dish along with two other items (e.g., milk and fruit), the meal would 
actually provide more nutrients than under OVS in schools using a meal 
pattern, since the child would have to select the entree and at least 
one other item. If the school offered this dish along with three other 
items (e.g., green beans, fruit and milk), the child would also receive 
a more substantial meal than under the meal pattern since s/he could 
decline only two of the remaining three items.
    The proposed requirement (at Sec. 210.10(e)(4)(ii)) that the child 
select the entree stemmed from the Department's concern that the school 
lunches children consume provide an adequate amount of calories and 
other essential nutrients. Traditionally, the most significant 
nutrition contribution in a school lunch has come from the entree. 
Therefore, this provision was proposed as a way of ensuring that 
children participating in OVS receive the most nutritious lunch 
possible.
    The Department recognized that the proposal deviated from current 
requirements which do not stipulate any particular item that the child 
must select. Therefore, the Department specifically solicited comments 
on this requirement. Only about 30 commenters supported the 
requirement, while 644 commenters expressed some objection. Some 
commenters were concerned that requiring students to select an entree 
would lead to reduced participation since students would have less 
opportunity for personal choice. Others thought that fewer fruits and 
vegetables would be selected. Finally there was concern that requiring 
selection of the entree would increase meal service costs.
    The Department appreciates the concerns expressed by the commenters 
but continues to believe that it is necessary to require that the 
entree be selected for lunch in order for the meal to be reimbursable. 
Because the meal is built around the entree, that dish will generally 
make the most significant calorie contribution to the meal and also 
will be likelier than other items to provide a variety of nutrients. 
The Department also notes that schools have considerable flexibility in 
determining what the entree will be. For example, a school could serve 
a chef's salad or a vegetable and fruit platter as an entree. The 
Department emphasizes that the final provisions on NuMenus and Assisted 
NuMenus require the child to take the entree and at least one other 
item. Therefore, the child may actually receive more food than would 
necessarily be the case under the former meal pattern. Finally, data 
from the SNDA study shows that children overwhelmingly select entrees 
under the current system. Therefore, the Department does not believe 
that requiring children to select the entree will result in greater 
plate waste. For these reasons, this final regulation, at 
Sec. 210.10(i)(2)(ii), requires that one of the items selected by the 
child under OVS be an entree.
    While the Department believes that the OVS requirement for an 
entree is necessary to ensure that children receive proper nutrition 
from school meals, it is concerned about the possibility of plate 
waste. Consequently, the Department requests that school food service 
personnel submit comments based on their operational experience with 
OVS under NuMenus and Assisted NuMenus. If operational experience with 
OVS as required by this rule indicates an increase in plate waste, the 
Department will consider future rulemaking, including issuance of a 
proposed rule, to change the regulatory requirement.

Complexity/Inflexibility of NuMenus/Assisted NuMenus

    Over 2,200 commenters maintained that NuMenus and Assisted NuMenus 
were too complex, and more than 3,400 believed these menu planning 
systems would be inflexible. The Department notes that, since NuMenus 
is not bound [[Page 31199]] by the component and quantity requirements 
of a food-based menu planning system, it gives schools more flexibility 
to vary their menus and to introduce different foods than they have 
under a meal pattern. The Department does agree that some additional 
effort will be necessary when NuMenus is initially implemented. As 
schools acquire more experience with the software and learn to take 
full advantage of NuMenus, this alternative can actually reduce the 
amount of time spent on menu planning.
    Many commenters were specifically concerned about what they viewed 
as the inflexibility of Assisted NuMenus. Most of these commenters 
believed that Assisted NuMenus would impose outside controls over local 
menus, would be unresponsive to local preferences and would result in 
limited food choices which, in turn, would lead to reduced 
participation. The Department agrees that Assisted NuMenus is less 
flexible than NuMenus because the basic analysis is not performed on 
site, but that Assisted NuMenus still provides a better method to 
determine compliance with the Dietary Guidelines and other nutrition 
standards and provides more flexibility than the current meal pattern 
approach. This option was proposed in response to concerns that some 
schools may not have the resources to conduct NuMenus themselves. The 
Department notes, however, that schools electing to use Assisted 
NuMenus will still be able to control the kinds and variety of foods 
they serve. To account for local preferences or the purchase of local 
foods, schools will provide the appropriate information or 
specifications to whomever conducts the analysis. Subsequent 
modifications also would need to be referred to the analyst for 
adjustments. Thus, under Assisted NuMenus, local schools will continue 
to exercise latitude over the meals they serve and will not be subject 
to the analyst's decisions unless they choose to be.

Food-Based Menu Systems

    A total of 363 commenters addressed one or more aspects of the 
January 27, 1995, proposed rule, either at the public hearing or in 
writing. About 200 comments were submitted by State and local food 
service professionals, and 79 were from other school personnel not 
connected with the food service. Fifty representatives of the food 
industry commented as did 26 nutritionists and food advocates or 
groups. Of these, 95 commenters generally approved of the proposed 
food-based system, while 78 generally disagreed. The remainder tended 
to approve of some aspects of the rule and disapprove of others. The 
chief areas addressed by commenters were the quantities specified for 
each of the four components, the age/grade groupings, and the 
monitoring requirements.
    Before discussing these issues, however, the Department wishes to 
address a widespread misperception that the State agency would decide 
which menu planning alternative (food-based or nutrient analysis) would 
be used by local schools. Section 9(f)(2)(D) of the NSLA, as amended by 
section 106(b) of Pub. L. 103-448, specifically makes the choice of a 
menu planning system a local school option. While the State agency can 
(and, in the Department's view, should) provide advice on which system 
might prove to be most effective for an individual school food 
authority, the final decision rests with the local school food 
authority.

Component and Quantity Requirements

    Eleven commenters gave general approval to the proposed meal 
patterns, while 13 disagreed completely with the proposal. For the most 
part, however, commenters discussed specific issues without entirely 
approving or disapproving. The most prevalent concern was that 
increased servings of vegetables/fruits and grains/breads would lead to 
increased plate waste (69 comments) and cost (115 comments). With 
respect to the meat/meat alternate component, 58 comments recommended 
reducing the quantity but were not specific. Another 64 commenters 
recommended specific reductions, and about the same number recommended 
crediting various alternatives, including yogurt. The Department 
received 142 comments on the proposed vegetables/fruits portions. Forty 
of these were concerned with increased plate waste and costs. The 
remainder generally raised technical questions or proposed revisions to 
the quantity requirements. The Department received 232 comments on the 
proposed grains/breads requirements. About half of these recommended 
revisions to the quantity requirements (80 comments) or raised 
crediting issues (47 comments). The remaining comments were concerned 
with a variety of technical issues, the most important of which was the 
proposed provision to allow one serving of dessert per day to be 
credited toward meeting the grains/breads requirement. Finally, 73 
comments addressed the milk component. Most of these comments (52) 
recommended that yogurt be credited as meeting the milk requirement.
    The Department appreciates commenters' recommendations for 
adjustments to the proposed quantity requirements. The Department did 
not propose to reduce the quantity requirement for the meat/meat 
alternate component because, while it is true that this component will 
generally be higher in fat than the other components, the meat/meat 
alternate contributes a substantial portion of the calories and protein 
in the meal. If this component were to be reduced, the quantities of 
fruits/vegetables and grains/breads would need to be significantly 
greater than was proposed in order to replace the calories lost from 
this source. The proposed food-based menu planning alternative was 
designed to enable schools to comply with all of the meal standards, 
including the requirement that lunches provide one-third of the 
calories needed by growing children. Therefore, the Department does not 
believe it is feasible to reduce the meat/meat alternate component 
without a correspondingly large increase in the other components. The 
Department continues to recommend, however, that schools use lower-fat 
protein sources and employ preparation techniques that will minimize 
the levels of fat and saturated fat.
    As noted above, the Department proposed to increase the quantities 
of fruits/ vegetables and grains/bread to increase dietary fiber and 
calories from low-fat or nonfat sources. The Department appreciates 
commenters' concerns about possible increases in food costs. However, 
it would not be possible to reduce the servings of these components and 
still have a meal pattern that meets the Dietary Guidelines. Moreover, 
in designing the proposed patterns, the Department considered the cost 
ramifications. As discussed elsewhere in this preamble, the Department 
compared the costs currently incurred by school food authorities with 
the costs of items in the meal pattern and concluded that the current 
cost-per-component-serving for food can be maintained through the 
selection of lower-cost grains/breads. For a complete discussion of the 
nutrition basis and cost implications of the proposed revisions to the 
meal pattern, readers should refer to the preamble and regulatory 
assessment for the proposed rule at 60 FR 5514.
    The Department also shares commenters' concerns about plate waste. 
However, as noted elsewhere in this preamble, the Department is 
undertaking a major initiative to educate children and their families 
about good nutrition and to provide school food authorities with 
recipes and techniques [[Page 31200]] that can make more healthful 
meals that are also appealing to children. The Department continues to 
believe that there is no inherent reason why fruits/vegetables and 
grains/breads should not be appealing if they are properly prepared and 
presented.
    In the January 27th proposed rule, the Department sought to include 
the crediting of one dessert per day to provide schools with 
flexibility in meeting the enhanced grains/breads requirement in the 
proposed rule. The Department appreciates commenters' concerns about 
possible sugar content of desserts. The Department emphasizes, however, 
that if desserts are served as part of the reimbursable meal service, 
all of the elements in these food items will be analyzed by the State 
agency as part of its review of the school's compliance with the 
nutrition standards. To assist schools in preparing desserts that make 
a balanced contribution to the meal, the Department has developed 
modified dessert recipes which reduce fat content and increase the use 
of whole grain products. Such popular desserts as orange rice pudding, 
whole grain cookies and fruit-filled items will provide many of the 
children's other needs, such as dietary fiber, without overemphasizing 
sugar and fat. For the above reasons, the Department is adopting in 
this final rule, at Sec. 210.10(k) and Sec. 220.8(g), the proposed 
food-based menu planning meal patterns.

Age/Grade Groupings

    One concern cited by commenters to the January 27th proposed rule 
was the difference between the age/grade groups for NuMenus and those 
for the food-based menu planning systems. In the June 10, 1994, 
proposal, the Department advocated establishing minimum levels of 
calories and nutrients for four age groups: (1) Ages 3-6, (2) ages 7-
10, (3) ages 11-13 and (4) ages 14-17. These groupings were designed to 
take into account the ages at which children tend to need greater 
amounts of nutrients and calories to ensure proper growth. The specific 
levels represented weighted averages of the levels of nutrients and 
calories needed by children in those groups with the greatest increase 
coming at approximately age 11. Under a system of nutrient analysis, 
such as NuMenus or Assisted NuMenus, the computer software enables the 
menu planner to calculate the required nutrient levels easily and to 
adjust the menu and portion sizes to reflect the nutrient profile of 
the children when more than one age group is being served.
    With a food-based menu planning system, however, the components and 
portion sizes are prescribed for menu planners to ensure that 
sufficient food is provided to meet the children's calorie and nutrient 
needs. Consequently, this system, which is not as flexible as nutrient 
analysis, does not allow for the tailoring that is possible under a 
system of nutrient analysis. In recognition of this limitation, the 
Department proposed to establish minimum portion sizes (accompanied by 
the appropriate levels of calories and nutrients for these grade 
levels) for two grade groupings in the January 27, 1995, rulemaking: 
Kindergarten-grade 6 and grades 7-12 for the NSLP while retaining the 
current single grade group of kindergarten-grade 12 for the SBP. In 
addition, optional levels were established in the NSLP for 
kindergarten-grade 3 and in the SBP for grades 7-12. These groups were 
selected because they reflect the age breakouts commonly used for 
individual schools and because they recognize the need for significant 
increases in nutrients and calories for adolescents.
    The Department received over 500 comments on the age/grade 
groupings proposed in the June 10, 1994, rule, the vast majority of 
which were from school food service personnel. While a few commenters 
agreed with the four age groupings for nutrient analysis, most raised 
questions or concerns. About a third of the commenters asserted that 
the groupings were too complicated and too costly and would require too 
much paperwork. Some commenters were concerned that the groupings did 
not reflect the actual age/grade groups in some schools, and some 
maintained that these groupings would not work in schools with 
kindergarten-grade 12. A small number recommended that a single generic 
standard be established for all ages/grades. Over half of the 
commenters, again mainly representing school food service, addressed 
miscellaneous concerns about applying these groupings in different 
local situations and recommended modifications such as applying one age 
category based upon the majority of students or establishing standards 
for pre-school, elementary, middle and high schools.
    The Department received 53 comments addressing the age/grade 
groupings of the January 27, 1995, proposed rule for the food-based 
menu planning system. Three commenters agreed with the proposed 
groupings, while eight disagreed without raising specific issues. Over 
forty commenters suggested changes to the groupings because of concerns 
about the applicability of the two groupings to their particular 
situations.
    The Department does recognize that no set of age/grade groupings 
will apply precisely to every school's structure, nor will they satisfy 
the nutrition and calorie needs of every child. Moreover, it recognizes 
that not all systems will be able to tailor meals to the optimum. 
Therefore, the final rule adopts the same grade groups for both NuMenus 
and Assisted NuMenus as were proposed for the food-based menu planning 
alternative as the minimum requirement. In addition, the regulation 
also provides a number of alternatives for age/grade groupings for the 
nutrient analysis alternatives. Schools may use the age levels provided 
in the January 27, 1995, proposed regulation (ages 3-6, 7-10, 11-13 and 
14 and above) as an option or may develop their own age/grade 
groupings. The Department continues to believe it is important to 
recognize the age related nutrient needs of children and provides the 
option of these more age appropriate levels for schools that are able 
to implement them. The software will readily allow for these 
variations, and FCS will be providing guidance on how to develop 
individual groupings and levels. The age/grade groupings for NuMenus 
and Assisted NuMenus may be found at Sec. 210.10(c) and (i)(1) and at 
Sec. 220.8(b) and (k)(1).
    The January 27, 1995, proposal was structured to take into account 
that, in many cases, school food authorities using the food-based menu 
planning alternative would not have access to computer technology and 
would, therefore, need a simpler pattern. Consequently, as noted above, 
the Department proposed two grade groupings for both the nutrition 
standards and portion sizes which essentially overlap the four age 
groupings of the June 10, 1994, proposal. Since these groupings 
generally reflect the grade structures of most schools, the Department 
considers that school food authorities using these patterns should 
experience little, if any, difficulty in complying with the 
requirements. In fact, the grade groups in this rule conform more 
closely to the standard structures of elementary and secondary schools 
than did the groupings in the existing patterns (kindergarten-grade 3 
and grades 4-12). Finally, the Department notes that school food 
authorities may always increase the portion sizes to accommodate older 
children, but to require schools to do so would introduce an 
unreasonable complexity into the system. For these reasons, the age/
grade groupings of the January 27th proposal are adopted without change 
at [[Page 31201]] Sec. 210.10(d) and (k)(2) and at Sec. 220.08(c) and 
(g)(2).
Monitoring Compliance With Nutrition Standards

    In both proposals, the Department proposed modifications to the 
review requirements so that compliance with the updated nutrition 
standards would be monitored properly. Currently, State agencies 
monitor compliance with meal pattern components and quantities on a 
per-meal basis through observation of the meal service. If there is 
reason to believe that a school is consistently offering meals which 
are deficient, State agencies may examine menus and production records 
to ensure that all components were available, and that sufficient 
quantities were offered.
    Under both the June 10, 1994, and the January 27, 1995, proposals, 
reimbursable meals offered over a school week must collectively meet 
the updated nutrition standards, including the Dietary Guidelines, as 
well as provide the minimum number of food items required for a 
reimbursable meal. Therefore, both proposals would have continued to 
require reviewers to determine that, on the day of review, the minimum 
number of menu items (NuMenus or Assisted NuMenus) or components (the 
food-based alternative) are offered and accepted. Meals lacking the 
required items or components would be disallowed. To determine 
compliance with the overall nutrition standards, the Department 
proposed to implement a review mechanism outside of the administrative 
review procedure set forth in Sec. 210.18(g).
    In the June 10, 1994, proposal, the Department sought to establish 
a separate nutrition analysis review requirement to supplement the 
administrative review requirements. Under this requirement (proposed at 
Sec. 210.19(a)(1)), the State agency would review the school's nutrient 
analysis to determine that NuMenus or Assisted NuMenus are being 
properly conducted and that the meals provided do, in fact, comply with 
the program's nutrition standards. Under food-based systems, however, 
there generally would be no local nutrition analysis records to review. 
Therefore, the January 27, 1995, proposal would have required the State 
agency to conduct a nutrient analysis of one week's meals using the 
school's production records. That proposal (again Sec. 210.19(a)(1)) 
also permitted State agencies to develop an alternate review 
methodology to nutrient analysis, subject to Departmental approval, or 
to examine local records of nutrient analysis should there be any. 
Nutrient analysis is needed because, even with a food-based system that 
incorporates enhanced meal pattern requirements, there is no guarantee 
that meals will comply with the Dietary Guidelines. Food selection, 
preparation techniques and student choices will have a significant 
effect. Periodic nutrient analysis, even if only at five-year 
intervals, will be the only way of gauging the school's compliance with 
the nutrition standards or of identifying ways to improve performance.
    Both proposals stressed the Department's commitment to technical 
assistance and corrective action in non-compliance situations as an 
alternative to taking fiscal action. In both proposals, State agencies 
would require corrective action when meals collectively fail to meet 
the nutrition standards. However, reimbursement for those meals would 
not be disallowed. School food authorities would be required to develop 
an acceptable corrective action plan in collaboration with the State 
agency. For school food authorities making good faith efforts to comply 
with the terms of the corrective action plan, the State agency would 
provide technical assistance and training to help them meet the 
nutrition standards. However, if the school food authority had not been 
acting in good faith to meet the terms of the corrective action plan 
and refused to renegotiate the plan, the State agency would be required 
to determine if a disallowance of reimbursement was warranted.
    Over 800 commenters addressed the monitoring requirements in the 
June 10, 1994, proposal. Most of these were parents/students (350), 
school food service personnel (316) and teachers and other school 
officials (101). In general, commenters agreed with the proposed 
compliance procedure; 140 commenters expressed overall approval, while 
only 36 completely disapproved. Commenters were concerned, however, 
about the provision requiring school food authorities to develop 
corrective action plans with the concurrence of the State agency and 
the provision requiring disallowance of funds if the school food 
authority does not act in good faith to achieve corrective action. For 
the most part, these concerns were technical in nature and involved 
such issues as defining ``intentional'' failure to take corrective 
action or requesting a methodology for calculating a fiscal penalty. 
Some commenters believed there should be no fiscal penalties, while 
others believed the State agency should have greater authority to take 
fiscal action for non-compliance.
    The Department received 148 comments on the proposed monitoring 
requirement for school food authorities electing to use food-based menu 
planning systems. The principal concern was with the proposed 
requirement that State agencies conduct a nutrient analysis of one 
week's food service using the school's menus and supporting production 
records. Thirty commenters opposed the provision, while most of the 
others raised technical concerns or suggested alternate methodologies 
such as analyzing only menus.
    The Department proposed to monitor compliance with the nutrition 
standards outside of the normal CRE process because of the belief that 
State agencies should have maximum flexibility to provide training and 
technical assistance to their schools. Therefore, both proposals 
stressed corrective action over automatic disallowances (except when 
the State agency observes that meals are not complete) because the 
Department does not wish to penalize school food authorities which are 
making good faith efforts to move toward compliance.
    The Department believes that State agencies are in the best 
position to determine what corrective actions must be taken, what the 
time frames for completion will be and whether or not the school food 
authority is making a good faith effort to comply. Because 
circumstances will vary from one situation to another, the Department 
does not believe rigid criteria can adequately determine a ``good 
faith'' effort, although progress toward compliance with the nutrition 
standards would certainly be one major indicator. Moreover, the 
Department does not envision that disallowances would occur routinely. 
The timing and amount of any disallowances are entirely at the State 
agency's discretion, but the Department intends that they would be 
imposed only when the school is not taking the agreed upon corrective 
action and is not making progress toward compliance.
    Finally, the Department proposed to have State agencies conduct a 
nutrient analysis as part of the review of schools using food-based 
menu systems because there is no other way to demonstrate that these 
school food authorities are actually meeting the nutrition standards, 
including the Dietary Guidelines. As noted elsewhere in this preamble, 
section 9(f) of the NSLA now requires that all schools comply with the 
Dietary Guidelines, and the Department's proposed meal patterns will 
allow schools using a food-based menu planning system to achieve these 
goals. However, there is a wide variation in the foods schools select 
to meet the component requirements. Consequently, 
[[Page 31202]] without nutrient analysis of the foods produced, it is 
impossible to document that the meals do, in fact, meet the Dietary 
Guidelines and the standards for RDA and calories.
    By law (42 U.S.C. 1758(f)(2)(D)), schools electing to use a food-
based menu planning system are not required to conduct such an 
analysis. Consequently, unlike schools using NuMenus or Assisted 
NuMenus, these schools will have no records of nutrient analysis for 
the State agency to review. Therefore, the State agency must conduct 
such an analysis to determine compliance. Moreover, the State agency 
must analyze the school's production records in conjunction with the 
menus. As discussed elsewhere in this preamble, a weighted analysis 
which takes into account the actual production trends is the only 
reliable method for determining the quality of the meal service. Simply 
averaging the items offered without regard to their acceptance would 
provide results which have little, if any, correlation to the overall 
meal service.
    Finally, as with reviews of schools using the nutrient based 
system, the Department is emphasizing technical assistance and 
corrective action rather than fiscal action. While State agencies would 
continue to disallow meals which are incomplete at the point of 
service, the school's failure to meet the overall nutrition standards 
would not automatically result in disallowances. Instead, the State 
agency would work with schools to develop a corrective action plan and 
would monitor the school's progress toward the nutrition standards. 
Fiscal sanctions would need to be imposed only if the school does not 
make a good faith effort to work toward improvement. For these reasons, 
this final rule adopts the monitoring requirements at Sec. 210.19(a)(1) 
as proposed in the June 10, 1994, and January 27, 1995, rules.

Streamlining: Paperwork Reduction/Nonprofit Status

    As part of the Department's continuing efforts to streamline the 
administration of Child Nutrition Programs, the June 10, 1994, proposal 
also offered State agencies and local school food authorities 
flexibility and reduced administrative burden in three important areas. 
The first provision would have extended the CRE cycle from 4 to 5 
years. This change, which would result in a 20 percent decrease in 
annual reviews, would provide State agencies with additional 
flexibility and resources to enable them to work with schools to 
improve meals. The second provision would have eliminated the current 
requirement for a specific daily edit check on meal counts for those 
school food authorities that have been found through CRE reviews to 
have accurate meal counts and claims. These school food authorities 
would have the option of establishing their own systems of internal 
controls without the Department's specified edits. Finally, the 
Department's proposal would have removed the requirement in 
Sec. 210.15(b)(4) that distinct records be maintained to document the 
nonprofit status of the school food service. The Department determined 
that it was not necessary for the program regulations to mandate this 
recordkeeping requirement because these records (e.g., receipts, 
expenditures, etc.) are the accounts which any enterprise needs to 
maintain in the normal course of conducting business. These kinds of 
records are a necessary part of a school food authority's own 
accountability system and, in many cases, are required by State laws. 
It is important to emphasize that the school food authority would still 
have to be operated on a nonprofit basis; the proposed amendment would 
have only eliminated the requirements for documentation of nonprofit 
status. It is still incumbent upon the school food authority to 
demonstrate that the school food service is being operated on a 
nonprofit basis if a question arises during an audit or other oversight 
activity.
    Slightly over 500 of the more than 14,000 commenters discussed the 
change in the administrative review cycle. Of these, 430 agreed with 
the extension to 5 years, although 23 commenters stated that the new 
cycle would not make much difference to the State agencies and a few 
opposed the change altogether. The Department continues to believe that 
the proposed reduction in the number of annual reviews will not 
compromise program accountability, but will enable State agencies to 
increase their commitments to training and technical assistance so 
necessary to the efficient implementation of the nutrition standards 
and is, therefore, adopting this amendment to Sec. 210.18(c) as 
proposed. State agencies are, of course, encouraged to exceed the 
regulatory requirements when resources permit, and they will continue 
to be required to conduct follow-up reviews of school food authorities 
which are found to exceed error thresholds on the initial reviews.
    Slightly fewer than 500 commenters addressed the proposal to 
eliminate specific edit checks for school food authorities found to 
have accurate counting and claiming systems. Essentially, commenters 
tended to assert that this change would not really reduce paperwork or 
that it could impose an additional burden on State agencies to approve 
alternative systems. Several commenters recommended other areas such as 
elimination of verification requirements of free and reduced-price 
applications or the process of determining ``severe need'' status in 
the SBP.
    When the Department proposed to require edit checks several years 
ago, many commenters stated that school food authorities should have 
the flexibility of devising their own systems of internal controls. 
However, at that time, the Department believed that school food 
authorities must, at a minimum, compare their meal counts, by type, to 
the number of eligible children in each category multiplied by an 
attendance factor. A few years later, in the regulation implementing 
CRE, the Department broadened State agencies' authority to authorize 
alternative systems of edits. The Department now believes that States 
and local school food authorities have had several years of experience 
with internal controls and are in the best position to modify these 
systems to meet their own needs. Therefore, this final rule adopts the 
amendment to Sec. 210.8 (a)(2) and (a)(3) as proposed.
    Only 150 commenters addressed the issue of documentation of 
nonprofit status. Most of these were from those in school food service. 
While over 30 commenters agreed with the proposed provision, about 100 
commenters stated that it was not a real reduction in paperwork at the 
local level. Some commenters felt ``real'' reduction in paperwork could 
be accomplished through elimination of the verification procedures, on-
site reviews and other requirements. However, the Department continues 
to believe that this provision will reduce the paperwork burden on 
schools because they will no longer need to maintain records using 
Federal specifications; records would be maintained in the manner 
preferred by the school district or required by State laws. Therefore, 
the proposed amendments to Sec. 210.14(c) and Sec. 210.15(b) are 
adopted as final without change. It is not possible for the Department 
to implement other changes suggested by commenters at this time since 
they were not a part of the original proposal. The Department will, 
however, retain them for future consideration.

[[Page 31203]]

Related Topics of Concern

Competitive Foods

    Approximately 640 commenters addressed the sale of foods in 
competition with school meals. Nearly 400 commenters recommended that 
all foods sold in the cafeteria, including a la carte items, be 
included in the analysis to determine whether or not the food service 
meets the Dietary Guidelines. More than 500 commenters recommended that 
the Department go even further and regulate the food items that may be 
sold in vending machines throughout the school or ban vending machines 
altogether.
    The Department appreciates and shares many of these concerns. 
Currently, the program regulations (Sec. 210.11(a) and Sec. 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. Other foods may be sold in competition with reimbursable 
meals provided that the proceeds inure to the benefit of the schools or 
of student organizations. These items would include foods sold a la 
carte.
    The Department has no authority to regulate the sale of foods 
outside the food service area. The current regulations governing the 
sale of competitive foods result from a Federal court's ruling in a 
lawsuit filed against the Department by a soft drink manufacturers' 
association. In that ruling, the court found that the Department had no 
authority to regulate the sale of competitive foods beyond the food 
service area. The court also limited the Department's jurisdiction over 
the food service area after the meal service has ended. Therefore, the 
Department cannot address the issue of vending machines elsewhere in 
the school in this rulemaking. The Department notes, however, that 
State agencies and local school food authorities have complete 
authority to impose more stringent limitations on the sale of 
competitive foods. This authority is underscored in Pub. L. 103-448, 
which directs the Department to provide States with a copy of the 
current regulations dealing with competitive foods and to provide 
States with model language prohibiting the sale of foods of minimal 
nutritional value anywhere on elementary school grounds between the 
start of the school day and the last lunch period. The Department 
intends to provide these materials to States for distribution to school 
food authorities in the near future.
    The Department shares commenters' concerns about a la carte items. 
The Department notes that these items are generally not intended to be 
part of a complete, balanced meal. A la carte sales can range from a 
second helping of a food item prepared as part of a reimbursable meal 
to items from a separate salad bar. Consequently, an analysis which 
includes a la carte items would shift the focus to individual foods, 
something which the Dietary Guidelines do not intend. Moreover, in the 
case of prepackaged items, the school would need to establish a 
separate system of records to track their selection and would need to 
identify their nutrient content. The Department believes, therefore, 
that requiring schools to apply the principles of the Dietary 
Guidelines to these items would greatly increase the complexity and 
burden of nutrient analysis.

Fortification

    The preamble to the June 10, 1994, proposal solicited comments 
regarding the use of fortified foods in school meal programs. The 
Department was particularly interested in whether there are practical 
ways to control excessive use of fortification, the degree to which 
this should be a concern, and the potential impact on the character of 
school meals.
    No regulatory proposals were made on this subject because the 
Department was unaware of any practical method for controlling the use 
of highly fortified foods. It was our understanding at the time of the 
proposal that it was virtually impossible to distinguish those 
nutrients that have been added to a product from those that are 
naturally occurring, especially for food items with numerous 
ingredients. Nevertheless, the Department was committed to the 
principle that meals be comprised of a variety of conventional foods, 
as recommended in the Dietary Guidelines, rather than ones containing 
formulated fortified foods.
    More than 2,300 commenters responded to our request for comments, 
some of whom recommended adoption of the fortification policy developed 
by USDA and employed in the USDA nutrient standard pilots in the mid-
1980's. This method, which is also a part of pilot projects currently 
operating in California, permits nutrients which are added to foods to 
be counted toward the nutrient standards only if they were added in 
accord with one of the following criteria: (1) a standard of identity 
or standard for enrichment issued by the Food and Drug Administration 
(FDA), (2) a USDA purchase specification for a donated commodity, (3) a 
standard for an Alternative Food for Meals under Appendix A of Parts 
210 and 220, excluding formulated grain/fruit products, and (4) in a 
breakfast cereal available on the commercial market.
    The Department had seriously considered adopting this policy as a 
part of the June 10, 1994, proposal. However, following discussions 
with the FDA, the food industry, the nutrient data laboratory of the 
USDA's Agriculture Research Service and local school food service 
personnel, the Department concluded that it could not be implemented at 
the local level for several reasons.
    First, there is no simple way to distinguish between the amount of 
synthetic nutrients added to a food and the level which occurs 
naturally because FDA does not require such distinctions to be made on 
food labels. Moreover, the Department has found that FDA standards of 
identity are not a particularly helpful source of information because 
they are only available for a limited number of products (under 40). 
Standards do not exist, for example, for many fruit juices commonly 
fortified and sold on the market. It would be difficult and costly to 
require the food industry to identify the primary source of nutrients 
on the label because such a requirement would exceed the requirements 
of the Nutrition Labeling and Education Act. It should be noted that 
further inquiries to the California State agency concerning this policy 
confirmed that it had not been successfully implemented in the pilot 
sites.
    Some commenters also suggested that USDA use the fortification 
standards established by FDA. These standards (21 CFR 101.14) only 
apply to those instances in which a health claim is being made in 
connection with the use of a particular food product. Therefore, such 
standards would have little applicability to the school meal programs. 
Since commenters did not provide new information that could be used to 
fashion a practical method for regulating the use of fortified products 
in the school meal programs, this final regulation contains no new 
regulatory proscriptions. The Department does wish to stress its 
continued commitment to the principle that school meals should be 
comprised of a variety of foods which provide naturally occurring 
nutrients rather than formulated foods which have been artificially 
fortified. The training and technical assistance the Department plans 
to provide on implementing the Dietary Guidelines will stress the 
importance of serving a variety of foods as well as the potential 
dangers of serving highly fortified foods.

[[Page 31204]]

    The Department also wishes to reiterate that the nutrition 
standards for school meals include standards for calories as well as 
for key nutrients. Moreover, the nutrient analysis alternatives 
continues to require that a minimum of three food items, one of which 
must be an entree, be available as part of every reimbursable meal. 
Finally, the Department notes that engineered foods generally cost more 
than foods that are not artificially fortified. All these factors are 
disincentives to the use of heavily fortified foods and should serve to 
minimize their use. The Department will be monitoring the 
implementation of the nutrient analysis menu planning alternatives and 
will continue to consider this issue should a feasible method of 
monitoring fortification levels become available in the future.

Alternate Foods for Meals

    The regulations governing Alternate Foods for Meals for the school 
lunch program are found in Appendix A of 7 CFR Part 210. This Appendix 
sets forth the requirements for enriched macaroni products with 
fortified protein, cheese alternate products and vegetable protein 
products. These regulations were developed to define and clarify the 
use of new products in the Child Nutrition Programs. Advances in food 
processing have allowed food producers to engineer ingredients into 
fabricated or formulated foods, usually in answer to a specific need or 
problem. Cheese alternate products, for example, were developed to 
supplement the natural cheese supply at a time when the availability of 
natural cheese had decreased and the price had increased. The alternate 
foods regulations were designed to maintain nutritional quality in 
school meals while providing schools with flexibility in menu planning, 
convenience in food preparation and an economic advantage. Because the 
Department proposed no changes to these regulations, the current 
requirements for alternative foods in Appendix A will remain in effect. 
However, the Department recognizes that more recent developments in 
food processing may necessitate revisions and that some products not 
currently allowable may provide schools with additional low-fat 
options. Therefore, the Department is considering proposing changes to 
these regulations in the near future. Prior to making any decisions, 
however, the Department will be consulting with an expert panel, as 
appropriate, to develop options.

Lunch Periods

    In the June 10, 1994, proposal, the Department indicated its 
concern that schools have an adequate number of lunch periods to 
accommodate all of their students and that the lunch periods provide 
sufficient time for children to eat the entire meal. Therefore, the 
Department proposed a recommendation at Sec. 210.10(i) that school food 
authorities make every effort to provide adequate meal service times 
and periods to ensure that children can effectively participate in the 
school lunch program.
    Nine hundred and forty-five commenters addressed this provision; 
over 850 were from school food service personnel, teachers, other 
school officials, parents and teachers. Overwhelmingly, they asserted 
that lunch periods need to be longer, especially if additional foods 
are served, and nearly 600 maintained that the Department should 
regulate this aspect of the food service. The Department appreciates 
these concerns. However, as noted in the preamble to the proposed rule, 
the Department has no authority to regulate meal times. Nevertheless, 
we intend to continue working with our partners in the Department of 
Education to solicit support in the education community to ensure that 
educators and school administrators understand the importance of giving 
students adequate time to eat. The Department also emphasizes that this 
is an issue that can be dealt with effectively at the local level, and 
the Department strongly encourages school food service directors to 
work with other school officials. Therefore, this final rule adopts the 
recommendation included in the proposed rule at Sec. 210.10(f).

Nutrition Disclosure

    The June 10, 1994, proposal included a provision at Sec. 210.10(n) 
encouraging school authorities to make a public disclosure of the 
nutrients contained in their meals. The Department intended that such a 
provision would promote an increased awareness on the part of students 
and their families of the nutrients in their meals, enhance the ability 
of children and their parents to make healthful food choices and 
increase support for school meals through public recognition of 
improved meal quality. However, in recognition of the differing needs 
of school food authorities, the Department did not mandate disclosure, 
nor was a particular method of making the disclosure prescribed, 
although the proposal did indicate that the information should be 
readily available to children and their families.
    The Department received over 260 comments on this issue, over 200 
of them from school food service personnel. Approximately 190 
commenters agreed that nutrition disclosure should be optional, and 
only 15 believed the Department should require disclosure. The 
remaining comments addressed narrower issues, such as suggesting that 
information be sent home with elementary students. Because the 
Department did not propose mandatory disclosure, the Department is 
adopting the provision as it was proposed at Sec. 210.10(h) and 
Sec. 220.8(l). The Department appreciates the overall support for 
voluntary disclosure. However, section 9(f)(1)(A) of the NSLA, as 
amended by section 106(b) of Pub. L. 103-448, 42 U.S.C. 1758(f)(1), 
includes a provision requiring schools to make a public disclosure of 
the nutrient content of their meals. The Department is assessing 
various methods of disclosure and intends to issue a proposed rule on 
this subject at a later time.
Compliance Over a School Week

    The June 10, 1994, proposal would have required nutrient analysis 
of the reimbursable meals served over the course of a school week, as 
defined in proposed Sec. 210.2 as a period of three to seven days. The 
normal school week would, of course, be five consecutive days. To 
accommodate situations when school is not in session for a complete 
week, the Department intended that weeks in which school lunches are 
offered fewer than three times would be combined with either the 
previous or the following week. The Department's proposal for weekly 
compliance and the proposed definition of ``school week'' were repeated 
in the January 27, 1995, rule, in keeping with a provision of Pub. L. 
103-448 (section 106(a), 42 U.S.C. 1758(a)(1)(A)(ii)) requiring that, 
at a minimum, compliance with the nutrition standards be based on the 
weekly average of the nutrient content of school lunches. This proposal 
was intended to provide schools with a manageable time period in which 
to vary menus and make meaningful calculations and adjustments. The 
range of three to seven days was intended to provide school food 
authorities with flexibility in planning menus when the school is not 
in session for an entire week.
    The Department received over 600 comments on this provision in the 
June 10, 1994, proposal. Nearly 400 of the comments were from school 
food service personnel, and approximately 130 were from parents and 
students. [[Page 31205]] Over half of the comments agreed with weekly 
analyses. Those who disagreed generally suggested a different length of 
time, although some believed there should be no specific time period at 
all, since the Dietary Guidelines have none. Generally commenters 
recommended that planning and analysis be done on a daily, bi-weekly or 
monthly basis, although some commenters recommended averaging over the 
length of the menu cycle or even the entire school year. Approximately 
50 commenters were also concerned that requiring weekly compliance 
could result in less variety in meals overall, since schools might tend 
simply to repeat a qualifying menu every week.
    The Department received 25 comments on this provision as applied to 
the proposed food-based menu planning system in the January 27, 1995, 
rulemaking. The largest number of these came from persons in school 
food service. Generally, these commenters recommended that the school 
week be defined strictly as five days or raised technical concerns 
about shorter periods.
    The Department appreciates commenters' suggestions for changing the 
length of the planning cycle. The Department continues to believe, 
however, that a school week represents the optimum length of time for 
determining nutrient content, as long as flexibility is built in to 
accommodate days when schools are not in session. A school week allows 
enough time for schools to vary menus but still ensures that nutrients 
are reasonably concentrated. Moreover, since the law now mandates 
compliance with the nutrition standards over the school week, the 
Department is adopting this provision as proposed at Sec. 210.2 and 
Sec. 220.2(w-1).

Operational Obstacles

    Over 9,000 commenters addressed perceived operational obstacles to 
implementation of the June 10, 1994, proposal. Nearly 7,000 commenters 
were from those in school food service, and more than 100 others were 
teachers or school officials. Commenters were chiefly concerned about 
the potential for increased administrative and paperwork burdens, the 
possibility that schools would drop out of the program because of the 
complexity of the requirements, the need for additional staff to 
conduct nutrient analysis and the difficulty in balancing good 
nutrition with student acceptance.
    The Department has given due consideration to these concerns. The 
Department believes, however, that the complexities of NuMenus and 
Assisted NuMenus are not as great as commenters have represented them 
to be. While it is true that nutrition analysis will measure nutrients 
and calories more precisely than in the past, this analysis will be 
done entirely by computer. Once the information has been entered, there 
is little additional burden on the school. Much the same is true of 
menu adjustments. Creating the initial menu may require more time than 
is currently the case with the meal pattern. However, once the recipe 
and product data has been entered and the menu cycle has been adjusted 
to comply with the nutrition standards, wholesale changes with 
resulting new analysis should not generally be needed. The Department 
also notes that the computer software approved for NuMenus will have 
the capability of searching for food sources of high nutrient density 
when a particular nutrient must be provided.
    The Department also believes that the amount of paperwork resulting 
from NuMenus will not be as great as commenters have stated. The 
nutrient analysis, itself, will remain in the computer unless a report 
is generated by the school or at the request of the State agency. The 
Department also wishes to emphasize that the analysis need not be 
performed individually by every school. If the school food authority 
wishes, the analysis can be performed centrally. For these reasons, it 
will not be necessary for schools' food authorities to add additional 
personnel to conduct NuMenus.
    Also, the Department does not consider appealing meals as 
incompatible with good nutrition. The Department has undertaken Team 
Nutrition--a comprehensive initiative to help meal planners produce 
meals that are appealing as well as nutritious and to foster an 
awareness on the part of children that good meals do taste good. The 
Department is promoting an array of technical assistance programs among 
State and local school food agencies. One prominent example is our 
partnership with the American Culinary Federation and others to develop 
recipes and provide information on how to make the meal presentation 
more appealing. In addition, the Department believes that the 
Children's Nutrition Campaign, which concentrates on bringing the 
message of good nutrition to children and their parents, will make 
nutritious foods more popular. Thus, the Department anticipates that 
these efforts to assist and educate will lead to increased 
participation.

Cost Implications

    Over 5,500 commenters, many from school food service personnel, 
were concerned that the changes set forth in the June 10, 1994, 
proposal would significantly increase the cost of their food 
operations. These concerns were based on the perception that they would 
need to purchase more expensive lower-fat foods and employ costlier 
preparation techniques along with the expense of acquiring computer 
equipment and software for NuMenus. Approximately 145 commenters raised 
cost concerns about the January 27, 1995, proposal because of the 
increased quantity requirements for fruits/vegetables and grains/
breads.
    The Department extensively studied the cost implications of both 
proposals as part of the Regulatory Assessments published with the 
proposals. The analysis published on June 10, 1994, found that the 
nutrient requirements of NuMenus can be met at about the current cost 
of food in the National School Lunch Program. Moreover, the Department 
does not anticipate the need for significant changes in meal 
preparation practices that would affect the cost of meals. While 
schools without computer resources might experience one-time 
acquisition costs, these costs must be considered in light of the 
length of time the schools will be using that equipment. Moreover, 
software to conduct NuMenus can have other food service applications as 
well, thereby providing some administrative efficiencies. For a 
complete discussion of the cost analysis, readers should refer to the 
June 10, 1994, issue of the Federal Register (59 FR 30250).
    In the cost/benefit analysis for the January 27, 1995, proposed 
rule, the Department noted that its school lunch model did experience 
slight increases in costs for leaner meat and for fruits/vegetables. 
These increases, however, can be effectively offset by selecting less 
expensive items from the grains/breads component. In fact, the analysis 
found that the nutrient requirements of the food-based menu planning 
system can be met at about the current cost of food in the program. 
Again, readers wishing a complete discussion of costs should refer to 
the January 27, 1995, issue of the Federal Register (60 FR 5525-26).

General Comments on Meal Content

    The Department received over 4,200 comments on various issues 
related to the content of school meals. More than 2,500 were from 
persons in school food service, while nearly 800 were from students or 
their families and over 250 were from the medical, public health and 
food advocacy communities. Some of these comments were general 
observations on the quality of existing meal services or reflected 
concerns [[Page 31206]] about plate waste. For the most part, however, 
commenters discussed increasing or decreasing specific food components. 
Approximately 1,000 commenters recommended increasing the amounts of 
fruits and vegetables, and another 500 wanted more breads and grain 
products. On the other hand, approximately 400 commenters recommended 
using either lower fat meats or meat substitutes such as soy, while 
over 1,200 opposed the milk requirement.
    The Department appreciates commenters' concerns. The Department 
agrees that it is important for children to receive plenty of fruits 
and vegetables as well as grain products. Although there are no 
component or quantity requirements under NuMenus and Assisted NuMenus, 
the Department believes that menu planners will use more of these food 
groups since they are prime sources of low-fat, nutrient-dense foods 
needed to meet the recommendations of the Dietary Guidelines. The 
Department's January 27, 1995, proposal did, in fact, significantly 
increase the quantity requirements for both fruits/vegetables and 
grains/breads. In addition, the Department believes that the nutrition 
standards established for school meals will ensure that a wide variety 
and ample amount of these items will be served.
    With respect to meats, the Department reiterates that it is 
important to obtain essential nutrients from a variety of foods. The 
Department agrees that foods, particularly those high in fat, must be 
eaten in moderation, but the Department does not share the view that 
any given foods are necessarily ``good'' or ``bad.'' For this reason, 
the January 27, 1995, proposal retained the quantity requirements for 
meats/meat alternates currently in effect, and the Department does not 
plan to limit or eliminate items from this food group in any future 
rulemakings. It is also important to note that meat is a significant 
source of iron, a nutrient that was not adequately met for some 
participants in the school meal programs reviewed in the 1993 SNDA 
study. As one final note, the Department is aware that yogurt can be a 
useful meat alternate, and the Department is considering a future 
action which would allow meal planners to substitute yogurt for meat.
    The Department also appreciates commenters' suggestions to 
eliminate the whole milk requirement or permit alternatives to milk. 
The requirement that schools offer fluid milk as part of a reimbursable 
lunch is statutory (42 U.S.C. 1758(a)(2)(A)(i)). The Department notes, 
however, that section 107 of Pub. L. 103-448 did modify this 
requirement. In the past, schools were required to offer fluid whole 
milk and fluid unflavored low-fat milk. Schools now are required to 
offer a variety of fluid milk consistent with children's preferences in 
the prior year. Schools also may cease offering any variety which 
constituted less than one percent of the total milk consumed in the 
prior year (42 U.S.C 1758(a)(2)(A)(ii)). Therefore, while schools must 
still make milk available as part of all reimbursable lunches, they 
will have somewhat more flexibility than in the past to reflect their 
children's changing preferences. This provision is found at 
Sec. 210.10(l)(1).

NuMenus and Assisted NuMenus for Meals Served Under the Child and Adult 
Care Food Program and the Summer Food Service Program

    A few commenters recommended that schools using NuMenus or Assisted 
NuMenus should be allowed to use these systems when the school is 
providing meals under the Child and Adult Care Food Program (CACFP) or 
the Summer Food Service Program (SFSP). Otherwise, the school food 
service could be placed in the position of following multiple sets of 
meal requirements. The Department agrees that schools should be able to 
use the same menu planning system for all meals it prepares and serves. 
Moreover, once the analysis has been properly completed and appropriate 
adjustments made, meals served under NuMenus or Assisted NuMenus will 
generally be more healthful and nutritious than meals planned and 
prepared under the old meal patterns. Therefore, although NuMenus and 
Assisted NuMenus has not yet been proposed for the CACFP or the SFSP, 
the Department is providing in this final rule (Sec. 210.10 (i)(12) and 
(j)(7); Sec. 220.8 (e)(12) and (f)(7)) that schools, with State agency 
approval, may use, in addition to the food-based menu planning systems, 
nutrient analysis for all of the meal programs receiving USDA 
reimbursement that they operate. These exceptions are consistent with 
the current requirements in the regulations governing the CACFP and the 
SFSP. The Department emphasizes, however, that schools would still be 
required to follow the existing meal patterns for snacks and for meals 
served to children under two years of age.
Implementation Schedules

    The June 10, 1994, proposal would have required all schools to 
comply with the Dietary Guidelines and nutrition standards established 
by that proposal by School Year 1998. Over 750 commenters agreed with 
the proposed implementation schedule, although 40 commenters believed 
implementation should be sooner. Over 200 commenters, however, believed 
that School Year 1998 would be too early for full implementation or 
requested that waivers be authorized for schools unable to comply. 
Subsequently, Congress amended the NSLA to require that school meals 
comply with the Dietary Guidelines by School Year 1996/97, unless a 
waiver not to exceed two years is authorized by the State agency. This 
provision (42 U.S.C. 1758 (f)(2)) affirms the importance of having 
school meals that comply with the best scientific research regarding 
nutrition, and the Department appreciates Congressional support on this 
issue. Therefore, this final regulation, at Sec. 210.10(o) and 
Sec. 220.8(m), will require implementation by School Year 1996, 
although State agencies may authorize schools to delay implementation 
on a case by case basis until a later date, but not later than School 
Year 1998/1999. This provision of the law will accommodate schools that 
have training or resource needs that require delayed implementation. 
However, State agencies and school food authorities may implement the 
provisions in this rule, such as the streamlining/paperwork reduction 
provisions including the extension of the CRE review period, prior to 
that date. Nonetheless, while the revised menu planning alternatives 
may be implemented early, they must be implemented in their entirety.

List of Subjects

7 CFR Part 210

    Children, Commodity School Program, Food assistance programs, 
Grants programs-social programs, National School Lunch Program, 
Nutrition, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

7 CFR Part 220

    Children, Food assistance programs, Grant programs-social programs, 
Nutrition, Reporting and recordkeeping requirements, School Breakfast 
Program.

    Accordingly, 7 CFR Parts 210 and 220 are amended as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

    1. The authority citation for 7 CFR Part 210 continues to read as 
follows:

    Authority: 42 U.S.C. 1751-1760, 1779.

    2. In Sec. 210.2: [[Page 31207]] 
    a. the definition of ``Food component'' is revised;
    b. the definition of ``Food item'' is revised;
    c. the definition of ``Lunch'' is revised;
    d. a new definition of ``Menu item'' is added;
    e. a new definition of ``Nutrient Standard Menu Planning/Assisted 
Nutrient Standard Menu Planning'' is added;
    f. the definition of ``Reimbursement'' is amended by adding the 
words ``or Sec. 210.10a, whichever is applicable,'' after 
``Sec. 210.10''; and
    g. a new definition of ``School Week'' is added.
    The revisions and additions read as follows:


Sec. 210.2  Definitions.

* * * * *
    Food component means one of the four food groups which compose the 
reimbursable school lunch, i.e., meat or meat alternate, milk, grains/
breads and vegetables/fruits for the purposes of Sec. 210.10(k) 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 Sec. 210.10a.
    Food item means one of the five required foods that compose the 
reimbursable school lunch, i.e., meat or meat alternate, milk, grains/
breads, and two (2) servings of vegetables, fruits, or a combination of 
both for the purposes of Sec. 210.10(k) 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 
Sec. 210.10a.
* * * * *
    Lunch means a meal which meets the nutrition standards and the 
appropriate nutrient and calorie levels designated in Sec. 210.10. In 
addition, if applicable, a lunch shall meet the requirements by age/
grade groupings in Sec. 210.10(k)(2) or the school lunch pattern for 
specified age/grade groups of children as designated in Sec. 210.10a.
    Menu item means, under Nutrient Standard Menu Planning or Assisted 
Nutrient Standard Menu Planning, any single food or combination of 
foods. All menu items or foods offered as part of the reimbursable meal 
may be considered as contributing towards meeting the nutrition 
standards provided in Sec. 210.10, except for those foods that are 
considered as foods of minimal nutritional value as provided for in 
Sec. 210.11(a)(2) which are not offered as part of a menu item in a 
reimbursable meal. For the purposes of a reimbursable lunch, a minimum 
of three menu items must be offered, one of which must be an entree (a 
combination of foods or a single food item that is offered as the main 
course) and one of which must be fluid milk. Under offer versus serve, 
a student shall select, at a minimum, an entree and one other menu 
item. If more than three menu items are offered, the student may 
decline up to two menu items; however, the entree cannot be declined.
* * * * *
    Nutrient Standard Menu Planning/Assisted Nutrient Standard Menu 
Planning mean ways to develop menus based on the analysis for nutrients 
in the menu items and foods offered over a school week to determine if 
specific levels for a set of key nutrients and calories were met. Such 
analysis is based on averages weighted in accordance with the criteria 
in Sec. 210.10(i)(5). Such analysis is normally done by a school or a 
school food authority. However, for the purposes of Assisted Nutrient 
Standard Menu Planning, menu planning and analysis are completed by 
other entities and shall incorporate the production quantities needed 
to accommodate the specific service requirements of a particular school 
or school food authority.
* * * * *
    School week means the period of time used to determine compliance 
with the nutrition standards and the appropriate calorie and nutrient 
levels in Sec. 210.10. Further, if applicable, school week is the basis 
for conducting Nutrient Standard Menu Planning or Assisted Nutrient 
Standard Menu Planning for lunches as provided in Sec. 210.10(i) and 
Sec. 210.10(j). The period shall be a normal school week of five 
consecutive days; however, to accommodate shortened weeks resulting 
from holidays and other scheduling needs, the period shall be a minimum 
of three consecutive days and a maximum of seven consecutive days. 
Weeks in which school lunches are offered less than three times shall 
be combined with either the previous or the coming week.
* * * * *


Sec. 210.4  [Amended]

    3. In Sec. 210.4, paragraph (b)(3) introductory text is amended by 
removing the words ``Sec. 210.10(j)(1) of this part'' and adding in 
their place the words ``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), 
whichever is applicable''.


Sec. 210.7  [Amended]

    4. In Sec. 210.7:
    a. paragraph (c)(1)(v) is amended by removing the reference to 
``Sec. 210.10(b) of this part'' and adding in its place the words 
``Sec. 210.10(a)(2) or Sec. 210.10a(b), whichever is applicable,''; and
    b. paragraph (d) is amended by removing the reference to 
``Sec. 210.10(j)(1) of this part'' and adding in its place the words 
``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is applicable''.
    5. In Sec. 210.8:
    a. the third sentence of paragraph (a)(2) is removed and new 
paragraphs (a)(2)(i) and (a)(2)(ii) are added at the end;
    b. Paragraph (a)(3) is revised;
    c. the first sentence of paragraph (a)(4) is revised;
    d. the first sentence of paragraph (b)(2)(i) is amended by removing 
the reference to ``paragraph (a)(2)'' and adding in its place a 
reference to ``paragraph (a)(3)'' and by adding at the end of the 
sentence the words ``or the internal controls used by schools in 
accordance with paragraph (a)(2)(i) of this section.'' The revisions 
and additions read as follows:


Sec. 210.8  Claims for reimbursement.

    (a) Internal controls. * * *
    (2) School food authority claims review process. * * *
    (i) Any school food authority that was found by its most recent 
administrative review conducted in accordance with Sec. 210.18, to have 
no meal counting and claiming violations may:
    (A) Develop internal control procedures that ensure accurate meal 
counts. The school food authority shall submit any internal controls 
developed in accordance with this paragraph to the State agency for 
approval and, in the absence of specific disapproval from the State 
agency, shall implement such internal controls. The State agency shall 
establish procedures to promptly notify school food authorities of any 
modifications needed to their proposed internal controls or of denial 
of unacceptable submissions. If the State agency disapproves the 
proposed internal controls of any school food authority, it reserves 
the right to require the school food authority to comply with the 
provisions of paragraph (a)(3) of this section; or
    (B) Comply with the requirements of paragraph (a)(3) of this 
section.
    (ii) Any school food authority that was identified in the most 
recent administrative review conducted in accordance with Sec. 210.18, 
or in any other oversight activity, as having meal counting and 
claiming violations shall comply with the requirements in paragraph 
(a)(3) of this section.
    (3) Edit checks. (i) The following procedure shall be followed for 
school [[Page 31208]] food authorities identified in paragraph 
(a)(2)(ii) of this section, by other school food authorities at State 
agency option, or, at their own option, by school food authorities 
identified in paragraph (a)(2)(i) of this section: the school food 
authority shall compare each school's daily counts of free, reduced 
price and paid lunches against the product of the number of children in 
that school currently eligible for free, reduced price and paid 
lunches, respectively, times an attendance factor.
    (ii) School food authorities that are identified in subsequent 
administrative reviews conducted in accordance with Sec. 210.18 as not 
having meal counting and claiming violations and that are correctly 
complying with the procedures in paragraph (a)(3)(i) of this section 
have the option of developing internal controls in accordance with 
paragraph (a)(2)(i) of this section.
    (4) Follow-up activity. The school food authority shall promptly 
follow-up through phone contact, on-site visits or other means when the 
internal controls used by schools in accordance with paragraph 
(a)(2)(i) of this section or the claims review process used by schools 
in accordance with paragraphs (a)(2)(ii) and (a)(3) of this section 
suggest the likelihood of lunch count problems. * * *
* * * * *


Sec. 210.9  [Amended]

    6. In Sec. 210.9:
    a. paragraph (b)(5) is amended by adding the words ``or 
Sec. 210.10a, whichever is applicable'' at the end of the paragraph;
    b. paragraph (c) introductory text is amended by removing the 
reference to ``Sec. 210.10(j)(1) of this part'' and adding in its place 
the words ``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is 
applicable''; and
    c. paragraph (c)(1) is amended by adding the words ``or 
Sec. 210.10a, whichever is applicable'' after the reference to 
``Sec. 210.10.''
    7. Section 210.10 is redesignated as Sec. 210.10a.
    8. A new Sec. 210.10 is added to read as follows:


Sec. 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 level of calories and nutrients 
provided for in either paragraph (c) or paragraph (i)(1) of this 
section for nutrient standard menu planning and assisted nutrient 
standard menu planning or in paragraph (d) of this section for food-
based menu planning, whichever is applicable. Compliance with the 
nutrition standards and the nutrient and calorie levels shall be 
determined by averaging lunches offered over a school week. Except as 
otherwise provided herein, school food authorities shall ensure that 
sufficient quantities of foods are planned and produced to meet, at a 
minimum, the nutrition standards in paragraph (b) of this section, the 
appropriate nutrient and calorie levels in paragraphs (c), (d), or 
(i)(1) of this section, whichever is applicable, and to either contain 
all the required food items in at least the amounts indicated in 
paragraph (k) of this section or to supply sufficient quantities of 
menu items and foods as provided in paragraphs (i) or (j) of this 
section.
    (2) School food authorities shall ensure that each lunch is priced 
as a unit and that lunches are planned and produced on the basis of 
participation trends, with the objective of providing one reimbursable 
lunch per child per day. Any excess lunches that are produced may be 
offered, but shall not be claimed for general or special cash 
assistance provided under Sec. 210.4. The component requirements for 
meal supplements served under the Child and Adult Care Food Program 
authorized under part 225 of this chapter shall also apply to meal 
supplements served by eligible school food authorities in afterschool 
care programs under the NSLP.
    (3) Production and menu records shall be maintained to demonstrate 
that the required number of food components and food items or menu 
items are offered on a given day. Production records shall include 
sufficient information to evaluate the menu's contribution to the 
requirements on nutrition standards in paragraph (b) of this section 
and the appropriate levels of nutrients and calories in paragraphs (c), 
(d) or (i)(1) of this section, whichever is applicable. If applicable, 
schools or school food authorities shall maintain nutritional analysis 
records to demonstrate that lunches meet, when averaged over each 
school week, the nutrition standards provided in paragraph (b) of this 
section and the nutrient and calorie levels for the appropriate age or 
grade group as provided for in paragraphs (c) or (i)(1) of this 
section, whichever is applicable.
    (b) Nutrition standards for reimbursable lunches. School food 
authorities shall ensure that participating schools provide nutritious 
and well-balanced meals to children. In addition, for children ages 2 
and above meals shall be provided based on the nutrition standards 
provided in this section.
    (1) Provision of one-third of the Recommended Dietary Allowances 
(RDA) of protein, calcium, iron, vitamin A and vitamin C to the 
applicable age or grade groups in accordance with the appropriate 
levels provided in paragraph (c), (d) or (i)(1) of this section, 
whichever is applicable;
    (2) Provision of the lunchtime energy allowances for children based 
on the appropriate age or grade groups in accordance with the levels 
provided in paragraphs (c), (d) or (i)(1) of this section, whichever is 
applicable;
    (3) The applicable recommendations of the 1990 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 vegetables, fruits, and grain 
products; and
    (vi) Use salt and sodium in moderation.
    (4) The following measures of compliance with the applicable 
recommendations of the 1990 Dietary Guidelines for Americans:
    (i) A limit on the percent of calories from total fat to 30 percent 
based on the actual number of calories offered;
    (ii) A limit on the percent of calories from saturated fat to less 
than 10 percent based on the actual number of calories offered;
    (iii) A reduction of the levels of sodium and cholesterol; and
    (iv) An increase in the level of dietary fiber.
    (5) School food authorities have three alternatives for menu 
planning in order to meet the requirements of this paragraph and the 
appropriate nutrient and calorie levels in paragraphs (c), (d) or 
(i)(1) of this section, whichever is applicable: 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, or food-based menu planning as provided for in paragraph 
(k) of this section. The actual minimum calorie levels vary depending 
upon the alternative followed due to differences in age/grade groupings 
of each alternative.
    (c) Nutrient levels for school lunches/nutrient analysis. (1) For 
the purposes of nutrient standard and assisted nutrient 
[[Page 31209]] standard menu planning, as provided for in paragraphs 
(i) and (j), respectively, of this section, schools shall, at a 
minimum, provide calorie and nutrient levels for school lunches 
(offered over a school week) for the required grade groups specified in 
the chart following:

  Minimum Requirements for Nutrient Levels for School Lunches/Nutrient  
                     Analysis (School Week Averages)                    
------------------------------------------------------------------------
                               Minimum requirements            Optional 
Nutrients and energy ---------------------------------------------------
     allowances        Preschool    Grades K-6  Grades 7-12   Grades K-3
------------------------------------------------------------------------
Energy allowance/                                                       
 calories...........          517          664          825          633
Total fat (as a                                                         
 percent of actual                                                      
 total food energy).        (\1\)        (\1\)        (\1\)        (\1\)
Saturated fat (as a                                                     
 percent of actual                                                      
 total food energy).        (\2\)        (\2\)        (\2\)        (\2\)
RDA for protein.....            7           10           16            9
RDA for calcium (mg)          267          286          400          267
RDA for iron (mg)...          3.3          3.5          4.5          3.3
RDA for vitamin A                                                       
 (RE)...............          150          224          300          200
RDA for vitamin C                                                       
 (mg)...............           14           15           18           15
------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.                        
\2\ Less than 10 percent over a school week.                            

    (2) At their option, schools may provide for the calorie and 
nutrient levels for school lunches (offered over a school week) for the 
age groups specified in the following chart or may develop their own 
age groups and their corresponding levels in accordance with paragraph 
(i)(1) of this section.

  Optional Minimum Nutrient Levels for School Lunches/Nutrient Analysis 
                         (School Week Averages)                         
------------------------------------------------------------------------
Nutrients and energy                                         Ages 14 and
     allowances         Ages 3-6    Ages 7-10    Ages 11-13     above   
------------------------------------------------------------------------
Energy allowance/                                                       
 calories...........          558          667          783          846
Total fat (as a                                                         
 percent of actual                                                      
 total food energy).        (\1\)        (\1\)        (\1\)        (\1\)
Saturated fat (as a                                                     
 percent of actual                                                      
 total food energy).        (\2\)        (\2\)        (\2\)        (\2\)
RDA for protein (g).          7.3          9.3         15.0         16.7
RDA for calcium (mg)          267          267          400          400
RDA for iron (mg)...          3.3          3.3          4.5          4.5
RDA for vitamin A                                                       
 (RE)...............          158          233          300          300
RDA for vitamin C                                                       
 (mg)...............         14.6         15.0         16.7        19.2 
------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.                        
\2\ Less than 10 percent over a school week.                            

    (d) Minimum nutrient levels for school lunches/food-based menu 
planning. For the purposes of food-based menu planning, as provided for 
in paragraph (k) 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:

   Minimum Nutrient Levels for School Lunches/Food-Based Menu Planning  
                         (School Week Averages)                         
------------------------------------------------------------------------
                                                              Grades K-3
                       Preschool    Grades K-6  Grades 7-12     option  
------------------------------------------------------------------------
Energy allowances                                                       
 (Calories).........          517          664          825          633
Total fat (as a                                                         
 percentage of                                                          
 actual total food                                                      
 energy)............        (\1\)        (\1\)        (\1\)        (\1\)
Total saturated fat                                                     
 (as a percentage of                                                    
 actual total food                                                      
 energy)............        (\2\)        (\2\)        (\2\)        (\2\)
Protein (g).........            7           10           16            9
Calcium (mg)........          267          286          400          267
Iron (mg)...........          3.3          3.5          4.5          3.3
Vitamin A (RE)......          150          224          300          200
Vitamin C (mg)......           14           15           18           15
------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.                        
\2\ Less than 10 percent over a school week.                            

    (e) Choice. To provide variety and to encourage consumption and 
participation, schools should, whenever possible, offer a selection of 
menu items and foods from which children may make choices. When a 
school offers a selection of more than one type of lunch or when it 
offers a variety of menu items, foods or milk for choice within a 
reimbursable lunch, the school shall offer all children the same 
selection regardless of whether the children are eligible for free or 
reduced price lunches or pay the school food authority's designated 
full price. The school may establish different unit prices for each 
type of lunch offered provided that the benefits made available to 
children eligible for free or reduced price lunches are not affected.
    (f) Lunch period. At or about mid-day schools shall offer lunches 
which meet the requirements of this section during a period designated 
as the lunch period by the school food authority. Such lunch periods 
shall occur between 10:00 a.m. and 2:00 p.m., unless otherwise exempted 
by FCS. With State agency approval, schools that serve children 1-5 
years old are encouraged to divide the [[Page 31210]] service of the 
meal into two distinct service periods. Such schools may divide the 
quantities, and/or menu items, foods or food items offered between 
these service periods in any combination that they choose. Schools are 
also encouraged to provide an adequate number of lunch periods of 
sufficient length to ensure that all students have an opportunity to be 
served and have ample time to consume their meals.
    (g) Exceptions. Lunches claimed for reimbursement shall meet the 
nutrition requirements for reimbursable meals specified in this 
section. However, lunches served which accommodate the exceptions and 
variations authorized under this paragraph are also reimbursable. 
Exceptions and variations are restricted to the following:
    (1) Medical or dietary needs. Schools shall make substitutions in 
foods listed in this section for students who are considered to have a 
disability under 7 CFR part 15b and whose disability restricts their 
diet. Schools may also make substitutions for students who do not have 
a disability but who are unable to consume the regular lunch because of 
medical or other special dietary needs. Substitutions shall be made on 
a case by case basis only when supported by a statement of the need for 
substitutions that includes recommended alternate foods, unless 
otherwise exempted by FCS. Such statement shall, in the case of a 
student with a disability, be signed by a physician or, in the case of 
a student who is not disabled, by a recognized medical authority.
    (2) Ethnic, religious or economic variations. FCS encourages school 
food authorities to consider ethnic and religious preferences when 
planning and preparing meals. For the purposes of the food-based menu 
planning alternative as provided for in paragraph (k) of this section, 
FCS may approve variations in the food components of the lunch on an 
experimental or on a continuing basis in any school where there is 
evidence that such variations are nutritionally sound and are necessary 
to meet ethnic, religious, or economic needs.
    (3) Natural disaster. In the event of a natural disaster or other 
catastrophe, FCS may temporarily allow schools to serve lunches for 
reimbursement that do not meet the requirements of this section.
    (h) Nutrition disclosure. School food authorities are encouraged to 
make information available indicating efforts to meet the nutrition 
standards in paragraph (b) of this section.
    (i) Nutrient standard menu planning. (1) Adjusted nutrient levels. 
(i) At a minimum, schools with children age 2 that choose the nutrient 
standard menu planning alternative shall ensure that the nutrition 
standards in paragraph (b) and the required preschool level in 
paragraph (c)(1) of this section are met over a school week except 
that, such schools have the option of either using the nutrient and 
calorie levels for preschool children in paragraph (c)(2) of this 
section or developing separate nutrient and calorie levels for this age 
group. The methodology for determining such levels will be available in 
menu planning guidance material provided by FCS.
    (ii) At a minimum, schools shall offer meals to children based on 
the required grade groups in the table, Minimum Nutrient Levels for 
School Lunches/Nutrient Analysis, in paragraph (c)(1) of this section. 
However, schools may, at their option, offer meals to children using 
the age groups and their corresponding calorie and nutrient levels in 
paragraph (c)(2) of this section or, following guidance provided by 
FCS, develop their own age or grade groups and their corresponding 
nutrient and calorie levels. However, if only one age or grade is 
outside the established levels, schools may use the levels for the 
majority of children regardless of the option selected.
    (2) Contents of reimbursable meal and offer versus serve. (i) 
Minimum requirements. For the purposes of this menu planning 
alternative, a reimbursable lunch shall include a minimum of three menu 
items as defined in Sec. 210.2; one menu item shall be an entree and 
one shall be fluid milk as a beverage. An entree may be a combination 
of foods or a single food item that is offered as the main course. All 
menu items or foods offered as part of the reimbursable meal may be 
considered as contributing towards meeting the nutrition standards in 
paragraph (b) of this section and the appropriate nutrient and calorie 
levels in paragraph (c) or (i)(1) of this section, whichever is 
applicable, except for those foods that are considered foods of minimal 
nutritional value as provided for in Sec. 210.11(a)(2) which are not 
offered as part of a menu item in a reimbursable meal. Such 
reimbursable lunches, as offered, shall meet the established nutrition 
standards in paragraph (b) and the appropriate nutrient and calorie 
levels in paragraphs (c) or (i)(1) of this section, whichever is 
applicable, when averaged over a school week.
    (ii) Offer versus serve. Each participating school shall offer its 
students at least three menu items as required by paragraph (i)(2)(i) 
of this section. Under offer versus serve, senior high students must 
select at least two menu items and may decline a maximum of two menu 
items; one menu item selected must be an entree. At the discretion of 
the school food authority, students below the senior high level may 
also participate in offer versus serve. The price of a reimbursable 
lunch shall not be affected if a student declines a menu item or 
requests smaller portions. State educational agencies shall define 
``senior high.''
    (3) Nutrient analysis under Nutrient Standard Menu Planning. School 
food authorities choosing the nutrient analysis alternative shall 
conduct nutrient analysis on all menu items or foods offered as part of 
the reimbursable meal. However, those foods that are considered as 
foods of minimal nutritional value as provided for in Sec. 210.11(a)(2) 
which are not offered as part of a menu item in a reimbursable meal 
shall not be included. Such analysis shall be over the course of each 
school week.
    (4) The National Nutrient Database and software specifications. (i) 
Nutrient analysis shall be based on information provided in the 
National Nutrient Database for Child Nutrition Programs. This database 
shall be incorporated into software used to conduct nutrient analysis. 
Upon request, FCS will provide information about the database to 
software companies and others that wish to develop school food service 
software systems.
    (ii) Any software used to conduct nutrient analysis shall be 
evaluated by FCS or by an FCS designee beforehand and, as submitted, 
has been determined to meet the minimum requirements established by 
FCS. However, such review does not constitute endorsement by FCS or 
USDA. Such software shall provide the capability to perform all 
functions required after the basic data has been entered including 
calculation of weighted averages and the optional combining of analysis 
of the lunch and breakfast programs as provided in paragraph (i)(5) of 
this section.
    (5) Determination of weighted averages. (i) Menu items and foods 
offered as part of a reimbursable meal shall be analyzed based on 
portion sizes and projected serving amounts and shall be weighted based 
on their proportionate contribution to the meals. Therefore, in 
determining whether meals satisfy nutritional requirements, menu items 
or foods more frequently offered will be weighted more heavily than 
menu items or foods which are less frequently offered. Such weighting 
shall be done in accordance with guidance [[Page 31211]] issued by FCS 
as well as that provided by the software used.
    (ii) An analysis of all menu items and foods offered in the menu 
over each school week shall be computed for calories and for each of 
the following nutrients: protein; vitamin A; vitamin C; iron; calcium; 
total fat; saturated fat; and sodium. The analysis shall also include 
the dietary components of cholesterol and dietary fiber.
    (iii) At its option, a school food authority may combine analysis 
of the National School Lunch and School Breakfast Programs. Such 
analysis shall be proportionate to the levels of participation in the 
two programs in accordance with guidance issued by FCS.
    (6) Comparing average nutrient levels. Once the appropriate 
procedures of paragraph (i)(5) of this section have been completed, the 
results shall be compared to the appropriate nutrient and calorie 
levels, by age/grade groups, in paragraph (c)(1) or (c)(2) of this 
section or to the levels developed in accordance with paragraph (i)(1) 
of this section, whichever is applicable, to determine the school 
week's average. In addition, comparisons shall be made to the nutrition 
standards provided in paragraph (b) of this section in order to 
determine the degree of conformity over the school week.
    (7) Adjustments based on students' selections. The results obtained 
under paragraph (i)(5) and (i)(6) of this section shall be used to 
adjust future menu cycles to accurately reflect production and the 
frequency with which menu items and foods are offered. Menus may 
require further analysis and comparison, depending on the results 
obtained in paragraph (i)(6) of this section, when production and 
selection patterns of students change. The school food authority may 
need to consider modifications to the menu items and foods offered 
based on student selections as well as modifications to recipes and 
other specifications to ensure that the nutrition standards provided in 
paragraph (b) of this section and paragraphs (c) or (i)(1) of this 
section, whichever is applicable, are met.
    (8) Standardized recipes. Under Nutrient Standard Menu Planning, 
standardized recipes shall be developed and followed. A standardized 
recipe is one that was tested to provide an established yield and 
quantity through the use of ingredients that remain constant in both 
measurement and preparation methods. USDA/FCS standardized recipes are 
included in the National Nutrient Database for the Child Nutrition 
Programs. In addition, local standardized recipes used by school food 
authorities shall be analyzed for their calories, nutrients and dietary 
components, as provided in paragraph (i)(5)(ii) of this section, and 
added to the local databases by school food authorities in accordance 
with guidance provided by FCS.
    (9) Processed foods. Unless already included in the National 
Nutrient Database, the calorie amounts, nutrients and dietary 
components, as provided in paragraph (i)(5)(ii) of this section, of 
purchased processed foods and menu items used by the school food 
authority shall be obtained by the school food authority or State 
agency and incorporated into the database at the local level in 
accordance with FCS guidance.
    (10) Menu substitutions. If the need for serving a substitute 
food(s) or menu item(s) occurs at least two weeks prior to serving the 
planned menu, the revised menu shall be reanalyzed based on the 
changes. If the need for serving a substitute food(s) or menu item(s) 
occurs two weeks or less prior to serving the planned menu, no 
reanalysis is required. However, to the extent possible, substitutions 
should be made using similar foods.
    (11) Compliance with the nutrition standards. If the analysis 
conducted in accordance with paragraphs (i)(1) through (i)(10) of this 
section shows that the menus offered are not meeting the nutrition 
standards in paragraph (b) of this section and the appropriate levels 
of nutrients and calories in paragraph (c)(1) or (c)(2) of this section 
or the levels developed in accordance with paragraph (i)(1) of this 
section, whichever is applicable, actions, including technical 
assistance and training, shall be taken by the State agency, school 
food authority, or school, as appropriate, to ensure that the lunches 
offered to children comply with the nutrition standards established by 
paragraph (b) and the appropriate levels of nutrients and calories in 
paragraphs (c) or (i)(1) of this section, whichever is applicable.
    (12) Other programs. Any school food authority that operates the 
Summer Food Service Program authorized under part 225 of this chapter 
and/or the Child and Adult Care Food Program under part 226 of this 
chapter may, at its option and with State agency approval, prepare 
meals provided for those programs using the nutrient standard menu 
planning alternative, except for children under two years of age. For 
school food authorities providing meals for adults, FCS will provide 
guidance on the level of nutrients and calories needed. Meal 
supplements shall continue to be provided based on the appropriate 
program's meal pattern.
    (j) Assisted Nutrient Standard Menu Planning.
    (1) School food authorities without the capability to conduct 
Nutrient Standard Menu Planning, as provided in paragraph (i) of this 
section, may choose an alternative which uses menu cycles developed by 
other sources. Such sources may include, but are not limited to the 
State agency, other school food authorities, consultants, or food 
service management companies. This alternative is Assisted Nutrient 
Standard Menu Planning.
    (2) Assisted Nutrient Standard Menu Planning shall establish menu 
cycles that have been developed in accordance with paragraphs (i)(1) 
through (i)(10) of this section as well as local food preferences and 
local food service operations. These menu cycles shall incorporate the 
nutrition standards in paragraph (b) of this section and the 
appropriate nutrient and calorie levels in paragraphs (c) or (i)(1) of 
this section, whichever is applicable. In addition to the menu cycle, 
recipes, food product specifications and preparation techniques shall 
also be developed and provided by the entity furnishing Assisted 
Nutrient Standard Menu Planning to ensure that the menu items and foods 
offered conform to the nutrient analysis determinations of the menu 
cycle.
    (3) At the inception of any use of Assisted Nutrient Standard Menu 
Planning, the State agency shall approve the initial menu cycle, 
recipes, and other specifications to determine that all required 
elements for correct nutrient analysis are incorporated. The State 
agency shall also, upon request by the school food authority, provide 
assistance with implementation of the chosen system.
    (4) After initial service of the menu cycle under the Assisted 
Nutrient Standard Menu Planning, the nutrient analysis shall be 
reassessed and appropriate adjustments made in accordance with 
paragraph (i)(7) of this section.
    (5) Under Assisted Nutrient Standard Menu Planning, the school food 
authority retains final responsibility for ensuring that all nutrition 
standards established in paragraph (b) and the appropriate nutrient and 
calorie levels in paragraphs (c) or (i)(1) of this section, whichever 
are applicable, are met.
    (6) If the analysis conducted in accordance with paragraphs (i)(1) 
through (i)(10) and paragraph (j)(4) of this section shows that the 
menus offered are not meeting the nutrition standards in paragraph (b) 
of this [[Page 31212]] section and the appropriate nutrient and calorie 
levels in paragraphs (c) or (i)(1) of this section, whichever is 
applicable, actions, including technical assistance and training, shall 
be taken by the State agency, school food authority, or school, as 
appropriate, to ensure that the lunches offered to children comply with 
the nutrition standards established by paragraph (b) and the 
appropriate nutrient and calorie levels in paragraphs (c) or (i)(1) of 
this section, whichever is applicable.
    (7) Any school food authority that operates the Summer Food Service 
Program authorized under part 225 of this chapter and/or the Child and 
Adult Care Food Program under part 226 of this chapter may, at its 
option and with State agency approval, prepare meals provided for those 
programs using the assisted nutrient standard menu planning 
alternative, except for children under two years of age. For school 
food authorities providing meals for adults, FCS will provide guidance 
on the level of nutrients and calories needed. Meal supplements shall 
continue to be provided based on the appropriate program's meal 
pattern.
    (k) Food-based menu planning. (1) Menu planning alternative. School 
food authorities may choose to plan menus using the food-based menu 
planning alternative. Under the food-based menu planning alternative, 
specific food components in minimum quantities must be served as 
provided in paragraphs (k)(2) through (k)(5) of this section.
    (2) Minimum quantities. At a minimum, school food authorities 
choosing to plan menus using the food-based menu planning alternative 
shall offer all five required food items in the quantities provided in 
the following chart:

----------------------------------------------------------------------------------------------------------------
                                                     Minimum quantities required for                            
    Meal component     -----------------------------------------------------------------------------------------
                               Ages 1-2                Preschool              Grades K-6          Grades 7-12   
----------------------------------------------------------------------------------------------------------------
Milk (as a beverage)..  6 ounces..............  6 ounces..............  8 ounces.............  8 ounces.        
Meat or meat alternate                                                                                          
 (quantity of the                                                                                               
 edible portion as                                                                                              
 served):.                                                                                                      
    Lean meat, poultry  1 oz..................  1\1/2\ oz.............  2 oz.................  2 oz             
     or fish.                                                                                                   
    Cheese............   1 oz.................  1\1/2\ oz.............  2 oz.................  2 oz.            
    Large egg.........  \1/2\.................  \3/4\.................  1....................  1.               
    Cooked dry beans    \1/4\ cup.............  \3/8\ cup.............   \1/2\ cup...........  \1/2\ cup.       
     or peas.                                                                                                   
    Peanut butter or     2 tbsp...............  3 tbsp................  4 tbsp...............  4 tbsp.          
     other nut or seed                                                                                          
     butters.                                                                                                   
The following may be                                                                                            
 used to meet no more                                                                                           
 than 50% of the                                                                                                
 requirement and must                                                                                           
 be used in                                                                                                     
 combination with any                                                                                           
 of the above:                                                                                                  
    Peanuts, soynuts,   \1/2\ oz.=50%.........  \3/4\ oz.=50%.........  1 oz.=50%............  1 oz.=50%.       
     tree nuts, or                                                                                              
     seeds, as listed                                                                                           
     in program                                                                                                 
     guidance, or an                                                                                            
     equivalent                                                                                                 
     quantity of any                                                                                            
     combination of                                                                                             
     the above meat/                                                                                            
     meat alternate (1                                                                                          
     ounce of nuts/                                                                                             
     seeds=1 ounce of                                                                                           
     cooked lean meat,                                                                                          
     poultry or fish.).                                                                                         
Vegetables/Fruits (2    \1/2\ cup.............  \1/2\ cup.............  \3/4\ cup plus         1 cup.           
 or more servings of                                                     additional \1/2\ cup                   
 vegetables or fruits                                                    over a week \1\.                       
 or both)                                                                                                       
Grains/Breads Must be   5 servings per week--   8 servings per week--   12 servings per week-- 15 servings per  
 enriched or whole       minimum of \1/2\ per    minimum of 1 per day    minimum of 1 per day   week--minimum of
 grain. A serving is a   day \1\.                \1\.                    \1\ \2\.               1 per day. \1\  
 slice of bread or an                                                                           \2\.            
 equivalent serving of                                                                                          
 biscuits, rolls,                                                                                               
 etc., or \1/2\ cup of                                                                                          
 cooked rice,                                                                                                   
 macaroni, noodles,                                                                                             
 other pasta products                                                                                           
 or cereal grains.                                                                                              
----------------------------------------------------------------------------------------------------------------
\1\ For the purposes of this chart, a week equals five days.                                                    
\2\ Up to one grains/breads serving per day may be a dessert.                                                   

    (3) Meat or meat alternate component. The quantity of meat or meat 
alternate shall be the quantity of the edible portion as served. When 
the school determines that the portion size of a meat alternate is 
excessive, it shall reduce the portion size of that particular meat 
alternate and supplement it with another meat/meat alternate to meet 
the full requirement. To be counted as meeting the requirement, the 
meat or meat alternate shall be served in a main dish or in a main dish 
and only one other of the items offered. The Department recommends that 
if schools do not offer children choices of meat or meat alternates 
each day, they serve no one meat alternate or form of meat (e.g., 
ground, diced, pieces) more than three times in a single week.
    (i) Vegetable protein products, cheese alternate products, and 
enriched macaroni with fortified protein defined in appendix A of this 
part may be used to meet part of the meat or meat alternate requirement 
when used as specified in appendix A of this part. An enriched macaroni 
product with fortified protein as defined in appendix A of this part 
may be used as part of a meat alternate or as a grain/bread item, but 
not as both food components in the same meal.
    (ii) Nuts and seeds and their butters listed in program guidance 
are nutritionally comparable to meat or other meat alternates based on 
available nutritional data. Acorns, chestnuts, and coconuts shall not 
be used as meat alternates due to their low protein and iron content. 
Nut and seed meals or flours shall not be used as a meat alternate 
except as defined in this part under appendix A: Alternate Foods for 
Meals. Nuts or seeds may be used to meet no more than one-half of the 
meat/meat alternate requirement. Therefore, nuts and seeds must be used 
in the meal with another meat/meat alternate to fulfill the 
requirement.
    (4) Vegetables and fruits. Full strength vegetable or fruit juice 
may be counted to meet not more than one-half of the vegetable/fruit 
requirement. Cooked dry beans or peas may be used as a meat alternate 
or as a vegetable, but not as both food components in the same meal. 
For children in kindergarten through grade six, the requirement for 
this component is based on minimum daily servings plus an additional 
\1/2\ cup in any combination over a five day period.
    (5) Grains/breads. (i) All grains/breads such as bread, biscuits, 
muffins or rice, macaroni, noodles, other pastas or cereal grains such 
as bulgur or corn [[Page 31213]] grits, shall be enriched or whole 
grain or made with enriched or whole grain meal or flour.
    (ii) Unlike the other component requirements, the grains/breads 
requirement is based on minimum daily servings and total servings per 
week. The requirement for this component is based on minimum daily 
servings plus total servings over a five day period. The servings for 
biscuits, rolls, muffins, and other grain/bread varieties are specified 
in the Food Buying Guide for Child Nutrition Programs (PA 1331), an FCS 
publication.
    (6) Offer versus serve. Each school shall offer its students all 
five required food items as set forth in the table presented under 
paragraph (k)(2) of this section. Senior high students shall be 
permitted to decline up to two of the five required food items. At the 
discretion of the school food authority, students below the senior high 
level may be permitted to decline one or two of the required five food 
items. The price of a reimbursable lunch shall not be affected if a 
student declines food items or accepts smaller portions. State 
educational agencies shall define ``senior high.''
    (7) Outlying areas. Schools in American Samoa, Puerto Rico and the 
Virgin Islands may serve a starchy vegetable such as yams, plantains, 
or sweet potatoes to meet the grain/bread requirement. For the 
Commonwealth of the Northern Mariana Islands, FCS has established a 
menu consistent with the food-based menu alternative and with local 
food consumption patterns and which, given available food supplies and 
food service equipment and facilities, provides optimum nutrition 
consistent with sound dietary habits for participating children. The 
State agency shall attach to and make a part of the written agreement 
required under Sec. 210.9 the requirements of that menu option.
    (l) Milk. (1) Varieties. Regardless of the menu planning 
alternative chosen, schools shall offer students fluid milk. The 
selection of the types of milk offered shall be consistent with the 
types of milk consumed in the prior year. This requirement does not 
preclude schools from offering additional kinds of milk. However, in 
the event that a particular type of milk represents less than one (1) 
percent of the total amount of milk consumed in the previous year, a 
school may elect not to make this type of milk available. All milk 
served shall be pasteurized fluid types of milk which meet State and 
local standards for such milk; except that, in the meal pattern for 
infants under 1 year of age, the milk shall be unflavored types of 
whole fluid milk or an equivalent quantity of reconstituted evaporated 
milk which meets such standards. All milk shall contain vitamins A and 
D at levels specified by the Food and Drug Administration and be 
consistent with State and local standards for such milk.
    (2) Insufficient milk supply. The inability of a school to obtain a 
supply of milk shall not bar it from participation in the Program and 
is to be resolved as follows:
    (i) If emergency conditions temporarily prevent a school that 
normally has a supply of fluid milk from obtaining delivery of such 
milk, the State agency may approve the service of lunches during the 
emergency period with an available alternate form of milk or without 
milk.
    (ii) If a school is unable to obtain a supply of any type of fluid 
milk on a continuing basis, the State agency may approve the service of 
lunches without milk if the school uses an equivalent amount of canned 
or dry milk in the preparation of the lunch. In Alaska, Hawaii, 
American Samoa, Guam, Puerto Rico, the Commonwealth of the Northern 
Mariana Islands, and the Virgin Islands, if a sufficient supply of 
fluid milk cannot be obtained, ``milk'' shall include reconstituted or 
recombined milk, or as otherwise provided under written exception by 
FCS.
    (m) Infant lunch pattern. (1) Definitions for infant meals. For the 
purpose of this section:
    (i) Infant cereal means any iron-fortified dry cereal especially 
formulated and generally recognized as cereal for infants and that is 
routinely mixed with formula or milk prior to consumption.
    (ii) Infant formula means any iron-fortified formula intended for 
dietary use solely as a food for normal, healthy infants; excluding 
those formulas specifically formulated for infants with inborn errors 
of metabolism or digestive or absorptive problems. Infant formula, as 
served, must be in liquid state at recommended dilution.
    (2) Infants under the age of one. Infants under 1 year of age shall 
be served an infant lunch as specified in this paragraph when they 
participate in the Program. Foods within the infant lunch pattern shall 
be of texture and consistency appropriate for the particular age group 
being served, and shall be served to the infant during a span of time 
consistent with the infant's eating habits. For infants 4 through 7 
months of age, solid foods are optional and should be introduced only 
when the infant is developmentally ready. Whenever possible the school 
should consult with the infant's parent in making the decision to 
introduce solid foods. Solid foods should be introduced one at a time 
on a gradual basis with the intent of ensuring health and nutritional 
well-being. For infants 8 through 11 months of age, the total amount of 
food authorized in the meal patterns set forth below must be provided 
in order to qualify for reimbursement. Additional foods may be served 
to infants 4 months of age and older with the intent of improving their 
overall nutrition. Breast milk, provided by the infant's mother, may be 
served in place of infant formula from birth through 11 months of age. 
However, meals containing only breast milk do not qualify for 
reimbursement. Meals containing breast milk served to infants 4 months 
of age or older may be claimed for reimbursement when the other meal 
component or components are supplied by the school. Although it is 
recommended that either breast milk or iron-fortified infant formula be 
served for the entire first year, whole milk may be served beginning at 
8 months of age as long as infants are consuming one-third of their 
calories as a balanced mixture of cereal, fruits, vegetables, and other 
foods in order to ensure adequate sources of iron and vitamin C. The 
infant lunch pattern shall contain, as a minimum, each of the following 
components in the amounts indicated for the appropriate age group:
    (i) Birth through 3 months--4 to 6 fluid ounces of iron-fortified 
infant formula.
    (ii) 4 through 7 months:
    (A) 4 to 8 fluid ounces of iron-fortified infant formula;
    (B) 0 to 3 tablespoons of iron-fortified dry infant cereal 
(optional); and
    (C) 0 to 3 tablespoons of fruit or vegetable of appropriate 
consistency or a combination of both (optional).
    (iii) 8 through 11 months:
    (A) 6 to 8 fluid ounces of iron-fortified infant formula or 6 to 8 
fluid ounces of whole milk;
    (B) 2 to 4 tablespoons of iron-fortified dry infant cereal and/or 1 
to 4 tablespoons meat, fish, poultry, egg yolk, or cooked dry beans or 
peas, or \1/2\ to 2 ounces (weight) of cheese or 1 to 4 ounces (weight 
or volume) of cottage cheese, cheese food or cheese spread of 
appropriate consistency; and
    (C) 1 to 4 tablespoons of fruit or vegetable of appropriate 
consistency or a combination of both.
    (n) Supplemental food. Eligible schools operating afterschool care 
programs may be reimbursed for one meal supplement served to an 
eligible child (as defined in Sec. 210.2) per day.
    (1) Eligible schools mean schools that: [[Page 31214]] 
    (i) Operate school lunch programs under the National School Lunch 
Act;
    (ii) Sponsor afterschool care programs as defined in Sec. 210.2; 
and
    (iii) Were participating in the Child and Adult Care Food Program 
as of May 15, 1989.
    (2) Meal supplements shall contain two different components from 
the following four:
    (i) A serving of fluid milk as a beverage, or on cereal, or used in 
part for each purpose;
    (ii) A serving of meat or meat alternate. Nuts and seeds and their 
butters listed in program guidance are nutritionally comparable to meat 
or other meat alternates based on available nutritional data. Acorns, 
chestnuts, and coconuts are excluded and shall not be used as meat 
alternates due to their low protein content. Nut or seed meals or 
flours shall not be used as a meat alternate except as defined under 
appendix A: Alternate Foods for Meals of this part;
    (iii) A serving of vegetable(s) or fruit(s) or full-strength 
vegetable or fruit juice, or an equivalent quantity of any combination 
of these foods. Juice may not be served when milk is served as the only 
other component;
    (iv) A serving of whole-grain or enriched bread; or an equivalent 
serving of cornbread, biscuits, rolls, muffins, etc., made with whole-
grain or enriched meal or flour; or a serving of cooked whole-grain or 
enriched pasta or noodle products such as macaroni, or cereal grains 
such as rice, bulgur, or corn grits; or an equivalent quantity of any 
combination of these foods.
    (3) Infant supplements shall contain the following:
    (i) Birth through 3 months: 4-6 fluid ounces of infant formula.
    (ii) 4 through 7 months: 4-6 fluid ounces of infant formula.
    (iii) 8 through 11 months: 2-4 fluid ounces of infant formula or 
whole fluid milk or full strength fruit juice; 0-\1/2\ slice of crusty 
bread or 0-2 cracker type products made from whole-grain or enriched 
meal or flour that are suitable for an infant for use as a finger food 
when appropriate. To improve the nutrition of participating children 
over one year of age, additional foods may be served with the meal 
supplements as desired.
    (iv) The minimum amounts of food components to be served as meal 
supplements as set forth in paragraph (n)(3) of this section are as 
follows. Select two different components from the four listed. (Juice 
may not be served when milk is served as the only other component.)

                                       Meal Supplement Chart for Children                                       
----------------------------------------------------------------------------------------------------------------
                                                                                 Children 3        Children 6   
              Snack (supplement) for children               Children 1 and 2      through 5        through 12   
----------------------------------------------------------------------------------------------------------------
  (Select two different components from the four listed)                                                        
                                                                                                                
Milk, fluid...............................................  \1/2\ cup.......  \1/2\ cup.......  1 cup.          
Meat or meat alternate \4\................................  \1/2\ ounce.....  \1/2\ ounce.....  1 ounce.        
Juice or fruit or vegetable...............................  \1/2\ cup.......  \1/2\ cup.......  \3/4\ cup.      
Bread and/or cereal: Enriched or whole grain bread or.....  \1/2\ slice.....  \1/2\ slice.....  1 slice.        
Cereal: Cold dry or.......................................  \1/4\ cup \1\...  \1/3\ cup \2\...  \3/4\ cup \3\.  
Hot cooked................................................  \1/4\ cup.......  \1/4\ cup.......  \1/2\ cup.      
----------------------------------------------------------------------------------------------------------------
\1\ \1/4\ cup (volume) or \1/3\ ounce (weight), whichever is less.                                              
\2\ \1/3\ cup (volume) or \1/2\ ounce (weight), whichever is less.                                              
\3\ \3/4\ cup (volume) or 1 ounce (weight), whichever is less.                                                  
\4\ Yogurt may be used as meat/meat alternate in the snack only. You may serve 4 ounces (weight) or \1/2\ cup   
  (volume) of plain, or sweetened and flavored yogurt to fulfill the equivalent of 1 ounce of the meat/meat     
  alternate component. For younger children, 2 ounces (weight) or \1/4\ cup (volume) may fulfill the equivalent 
  of \1/2\ ounce of the meat/meat alternate requirement.                                                        
Caution: Children under five years of age are at the highest risk of choking. USDA recommends that nuts and/or  
  seeds be served to them ground or finely chopped in a prepared food.                                          


                                             Supplements for Infants                                            
----------------------------------------------------------------------------------------------------------------
   Birth through three months     Four months through seven months       Eight months through eleven months     
----------------------------------------------------------------------------------------------------------------
4-6 fluid ounces formula \1\....  4-6 fluid ounces formula \1\....  2-4 fluid ounces formula,\1\ breast milk,\4\
                                                                     whole milk or fruit juice.\2\ 0-\1/2\ slice
                                                                     bread or 0-2 crackers (optional).\3\       
----------------------------------------------------------------------------------------------------------------
\1\ Shall be iron-fortified infant formula.                                                                     
\2\ Shall be full-strength fruit juice.                                                                         
\3\ Shall be from whole-grain or enriched meal or flour.                                                        
\4\ Breast milk provided by the infant's mother may be served in place of formula from birth through 11 months. 
  Meals containing only breast milk are not reimbursable. Meals containing breast milk served to infants 4      
  months or older may be claimed when the other meal component(s) is supplied by the school.                    

    (o) Implementation of the nutrition standards. School food 
authorities shall comply with the 1990 Dietary Guidelines for Americans 
as provided in paragraph (b) of this section no later than School Year 
1996-97 except that State agencies may grant waivers to postpone 
implementation until no later than School Year 1998-99. Such waivers 
shall be granted by the State agency using guidance provided by the 
Secretary.
    9. In the newly redesignated Sec. 210.10a:
    a. the section heading is revised and
    b. the table in paragraph (c) is amended by revising the ``Milk'' 
description under ``Food Components and Food Items.''
    The revisions read as follows:


Sec. 210.10a  Lunch components and quantities for the meal pattern.

* * * * *
    (c) Minimum required lunch quantities. * * *

                                                                                                                
[[Page 31215]]
                                                         School Lunch Pattern--Per Lunch Minimums                                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Minimum quantities                                 Recommended   
                                                          ---------------------------------------------------------------------------- quantities: group
              Food components and food items                Group 1, ages 1-  Group II, ages 3-  Group III, ages 5-  Group IV, age 9    V, 12 years and 
                                                             2, (preschool)     4 (preschool)         8 (K-3)        and older (4-12)     older (7-12)  
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk (as a beverage): Fluid whole milk and fluid                                                                                                        
 unflavored lowfat milk must be offered; (Flavored fluid                                                                                                
 milk, skim milk or buttermilk optional).................              * * *              * * *              * * *              * * *              * * *
                                                                                                                                                        
       *                   *                   *                   *                   *                   *                   *                        
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    10. In Sec. 210.14, paragraph (c) is revised to read as follows:


Sec. 210.14  Resource management.

* * * * *
    (c) Financial assurances. The school food authority shall meet the 
requirements of the State agency for compliance with Sec. 210.19(a) 
including any separation of records of nonprofit school food service 
from records of any other food service which may be operated by the 
school food authority as provided in paragraph (a) of this section.
* * * * *
    11. In Sec. 210.15:
    a. Paragraph (b)(2) is revised;
    b. Paragraph (b)(3) is amended by removing the reference to 
``210.10(b) of this part'' and adding in its place the words 
``Sec. 210.10(a)(2) or Sec. 210.10a(b), whichever is applicable;'' and
    c. Paragraph (b)(4) is removed and paragraph (b)(5) is redesignated 
as (b)(4).
    The revision reads as follows:


Sec. 210.15  Reporting and recordkeeping.

* * * * *
    (b) Recordkeeping summary. * * *
    (2) Production and menu records as required under Sec. 210.10a and 
production and menu records and, if appropriate, nutrition analysis 
records as required under Sec. 210.10, whichever is applicable.
* * * * *
    12. In Sec. 210.16:
    a. paragraph (b)(1) is amended by adding the words ``developed in 
accordance with the provisions of Sec. 210.10 or Sec. 210.10a, 
whichever is applicable,'' after the words ``21-day cycle menu'' 
whenever they appear; and
    b. the first sentence of paragraph (c)(3) is revised to read as 
follows:


Sec. 210.16   Food service management companies.

* * * * *
    (c) * * *
    (3) No payment is to be made for meals that are spoiled or 
unwholesome at time of delivery, do not meet detailed specifications as 
developed by the school food authority for each food component or menu 
item as specified for the appropriate menu planning alternative in 
Sec. 210.10 or for each food component in Sec. 210.10a, whichever is 
applicable, or do not otherwise meet the requirements of the contract. 
* * *
* * * * *


Sec. 210.18  [Amended]

    13. In Sec. 210.18:
    a. Paragraph (c) introductory text is amended by removing the 
number ``4'' in the phrase ``4-year review cycle'' wherever it appears 
and adding in its place the number ``5'';
     b. the first sentence of paragraph (c)(1) is amended by removing 
the number ``4'' in the phrase ``4-year review cycle'' and adding in 
its place the number ``5'' and by removing the number ``5'' in the 
phrase ``every 5 years'' and adding in its place the number ``6'';
     c. paragraph (c)(2) is amended by removing the number ``4'' in the 
phrase ``4-year cycle'' and adding in its place the number ``5'';
     d. paragraph (c)(3) is amended by removing the number ``5'' in the 
phrase ``5-year review interval'' and adding the number ``6'' in its 
place;
     e. paragraph (d)(3) is amended by removing the reference to 
``210.19(a)(4)'' and adding in its place a reference to 
``210.19(a)(5)''; and
     f. paragraph (h)(2) is amended by removing the words ``210.10 of 
this part'' and adding in their place the words ``Sec. 210.10 or 
Sec. 210.10a, whichever is applicable.''


Sec. 210.19  [Amended]

    14. In Sec. 210.19:
    a. paragraphs (a)(1) through (a)(5) are redesignated as paragraphs 
(a)(2) through (a)(6), respectively, and a new paragraph (a)(1) is 
added;
    b. newly redesignated paragraph (a)(2) is revised;
    c. the last sentence in newly redesignated paragraph (a)(3) is 
revised;
    d. the number ``4'' in the second sentence of newly redesignated 
paragraph (a)(6) is removed and the number ``5'' is added in its place;
    e. the second sentence of paragraph (c) introductory text is 
revised;
    f. a new sentence is added at the end of paragraph (c)(1);
    g. the reference to ``Sec. 210.10'' in paragraph (c)(6)(i) is 
removed and the words ``Sec. 210.10a or the food-based menu planning 
alternative in Sec. 210.10(k), whichever is applicable;'' are added in 
its place;
    h. paragraph (c)(6)(ii) is amended by removing the period at the 
end and adding in its place the word ``; or''; and
    i. a new paragraph (c)(6)(iii) is added.
    The additions and revisions read as follows:


Sec. 210.19  Additional responsibilities.

    (a) General Program management. * * *
    (1) Compliance with nutrition standards. Beginning with School Year 
1996-1997 (unless the school food authority has an implementation 
waiver as provided in Sec. 210.10(o)), State agencies shall evaluate 
compliance, over the school week, with the nutrition standards in 
Sec. 210.10(b) and Sec. 210.10(c) or (d), whichever is applicable. At a 
minimum, these evaluations shall be conducted once every 5 years and 
may be conducted at the same time a school food authority is scheduled 
for an administrative review in accordance with Sec. 210.18. State 
agencies may also conduct these evaluations in conjunction with 
technical assistance visits, other reviews, or separately. The type of 
evaluation conducted by the State agency shall be determined by the 
menu planning alternative chosen by the school food authority.
    (i) For school food authorities choosing the nutrient standard menu 
planning or assisted nutrient standard menu planning options provided 
in Sec. 210.10(i) and Sec. 210.10(j), respectively, the State agency 
shall assess the nutrient analysis for the last completed school week 
prior to the review period [[Page 31216]] to determine if the school 
food authority is applying the methodology in Sec. 210.10(i) or 
Sec. 210.10(j), as appropriate. Part of this assessment shall be an 
independent review of menus and production records to determine if they 
correspond to the analysis conducted by the school food authority and 
if the menu, as offered, over a school week, corresponds to the 
nutrition standards set forth in Sec. 210.10(b) and Sec. 210.10(c).
    (ii) For school food authorities choosing the food-based menu 
planning alternative in Sec. 210.10(k), the State agency shall conduct 
nutrient analysis on the menu(s) served during the review period to 
determine if the nutrition standards set forth in Sec. 210.10(b) and 
Sec. 210.10(d) are met, except that, the State agency may:
    (A) Use the nutrient analysis of any school or school food 
authority that offers meals using the food-based menu planning 
alternative provided in Sec. 210.10(k) and/or Sec. 220.8(e) or 
Sec. 220.8(f) of this chapter and that conducts its own nutrient 
analysis under the criteria for nutrient analysis established in 
Sec. 210.10 and Sec. 220.8 for nutrient standard menu planning and 
assisted nutrient standard menu planning of those meals; or
    (B) Develop its own method for compliance review, subject to USDA 
approval.
    (iii) If the menu for the school week fails to comply with the 
nutrition standards specified in Sec. 210.10(b) and/or Sec. 220.8(a) 
and the appropriate nutrient levels in either Sec. 210.10(c), 
Sec. 210.10(d), or Sec. 210.10(i)(1) whichever is applicable, and/or 
Sec. 220.8(b), Sec. 220.8(c) or Sec. 220.8(e)(1) of this chapter, 
whichever is applicable, the school food authority shall develop, with 
the assistance and concurrence of the State agency, a corrective action 
plan designed to rectify those deficiencies. The State agency shall 
monitor the school food authority's execution of the plan to ensure 
that the terms of the corrective action plan are met.
    (iv) If a school food authority fails to meet the terms of the 
corrective action plan, the State agency shall determine if the school 
food authority is working in good faith towards compliance and, if so, 
may renegotiate the corrective action plan, if warranted. However, if 
the school food authority has not been acting in good faith to meet the 
terms of the corrective action plan and refuses to renegotiate the 
plan, the State agency shall determine if a disallowance of 
reimbursement funds as authorized under paragraph (c) of this section 
is warranted.
    (2) Assurance of compliance for finances. Each State agency shall 
ensure that school food authorities comply with the requirements to 
account for all revenues and expenditures of their nonprofit school 
food service. School food authorities shall meet the requirements for 
the allowability of nonprofit school food service expenditures in 
accordance with this part and, as applicable, 7 CFR part 3015. The 
State agency shall ensure compliance with the requirements to limit net 
cash resources and shall provide for approval of net cash resources in 
excess of three months' average expenditures. Each State agency shall 
monitor, through review or audit or by other means, the net cash 
resources of the nonprofit school food service in each school food 
authority participating in the Program. In the event that net cash 
resources exceed 3 months' average expenditures for the school food 
authority's nonprofit school food service or such other amount as may 
be approved in accordance with this paragraph, the State agency may 
require the school food authority to reduce the price children are 
charged for lunches, improve food quality or take other action designed 
to improve the nonprofit school food service. In the absence of any 
such action, the State agency shall make adjustments in the rate of 
reimbursement under the Program.
    (3) Improved management practices. * * * If a substantial number of 
children who routinely and over a period of time do not favorably 
accept a particular item that is offered; return foods; or choose less 
than all food items/components or foods and menu items, as authorized 
under Sec. 210.10 or Sec. 210.10a, whichever is applicable, poor 
acceptance of certain menus may be indicated.
* * * * *
    (c) Fiscal action. * * * State agencies shall take fiscal action 
against school food authorities for Claims for Reimbursement that are 
not properly payable under this part including, if warranted, the 
disallowance of funds for failure to take corrective action in 
accordance with paragraph (a)(1) of this section. * * *
    (1) Definition. * * * Fiscal action also includes disallowance of 
funds for failure to take corrective action in accordance with 
paragraph (a)(1) of this section.
* * * * *
    (6) Exceptions. * * *
    (iii) when any review or audit reveals that a school food 
authority's failure to meet the nutrition standards of Sec. 210.10 is 
unintentional and the school food authority is meeting the requirements 
of a corrective plan developed and agreed to under paragraph 
(a)(1)(iii) of this section.
* * * * *

[Appendix A--Amended]

    15. In Appendix A, Alternate Foods for Meals; Enriched Macaroni 
Products with Fortified Protein, the first sentence of paragraph 1(a) 
is amended by adding the words ``or Sec. 210.10a, whichever is 
applicable,'' after the reference to ``Sec. 210.10''.
    16. In Appendix A, Alternate Foods for Meals; Cheese Alternate 
Products:
     a. the introductory text of paragraph 1 is amended by adding the 
words ``or Sec. 210.10a, whichever is applicable,'' after the reference 
to ``Sec. 210.10''; and
    b. paragraph 1(d) is amended by adding the words ``or Sec. 210.10a, 
whichever is applicable,'' after the reference to ``Sec. 210.10''.
    17. In Appendix A, Alternate Foods for Meals; Vegetable Protein 
Products:
    a. the introductory text of paragraph 1 is amended by adding the 
words ``or Sec. 210.10a, whichever is applicable,'' after the reference 
to ``Sec. 210.10'';
    b. the second sentence of paragraph 1(d) is amended by adding the 
words ``or Sec. 210.10a, whichever is applicable,'' after the reference 
to ``Sec. 210.10'';
    c. the first sentence of paragraph 1(e) is amended by adding the 
words ``Sec. 210.10a, whichever is applicable,'' after the reference to 
``Sec. 210.10''; and
    d. the first sentence of paragraph 3 is amended by adding the words 
``or Sec. 210.10a, whichever is applicable,'' after the reference to 
``Sec. 210.10''.

Appendix C--[Amended]

    18. In Appendix C, Child Nutrition Labeling Program:
    a. paragraph 2(a) is amended by adding the words ``or 210.10a, 
whichever is applicable,'' after the reference to ``210.10''; and
    b. the first sentence of paragraph 3(c)(2) is amended by adding the 
words ``or 210.10a, whichever is applicable,'' after the reference to 
``Sec. 210.10'' and by adding the words ``or 220.8a, whichever is 
applicable,'' after the reference to ``Sec. 220.8''; and
    c. the second sentence of paragraph 6 is amended by adding the 
words ``or 210.10a, whichever is applicable,'' after the reference to 
``Sec. 210.10'' and by adding the words ``or 220.8a, whichever is 
applicable,'' after the reference to ``Sec. 220.8''.

PART 220--SCHOOL BREAKFAST PROGRAM

    1. The authority citation continues to read as follows:

    [[Page 31217]] Authority: 42 U.S.C. 1773, 1779, unless otherwise 
noted.

    2. In Sec. 220.2:
    a. paragraph (b) is amended by adding the words ``or Sec. 220.8a, 
whichever is applicable,'' after the reference to ``Sec. 220.8;''
    b. paragraph (m), previously reserved, is added;
    c. a new paragraph (p-1) is added;
    d. paragraph (t) is amended by adding the words ``or Sec. 220.8a, 
whichever is applicable,'' after the reference to ``Sec. 220.8''; and
    e. a new paragraph (w-1) is added.
    The additions read as follows:


Sec. 220.2  Definitions.

* * * * *
    (m) Menu item means, under Nutrient Standard Menu Planning or 
Assisted Nutrient Standard Menu Planning, any single food or 
combination of foods. All menu items or foods offered as part of the 
reimbursable meal may be considered as contributing towards meeting the 
nutrition standards provided in Sec. 220.8, except for those foods that 
are considered as foods of minimal nutritional value as provided for in 
Sec. 220.2(i-1) which are not offered as part of a menu item in a 
reimbursable meal. For the purposes of a reimbursable breakfast, a 
minimum of three menu items must be offered, one of which shall be 
fluid milk served as a beverage or on cereal or both; under the offer 
versus serve, a student may decline only one menu item.
* * * * *
    (p-1) Nutrient Standard Menu Planning/Assisted Nutrient Standard 
Menu Planning mean ways to develop menus based on the analysis of 
nutrients in the menu items and foods offered over a school week to 
determine if specific levels for a set of key nutrients and calories 
were met. Such analysis is based on averages weighted in accordance 
with the criteria in Sec. 220.8(e)(5). Such analysis is normally done 
by a school or a school food authority. However, for the purposes of 
Assisted Nutrient Standard Menu Planning, menu planning and analysis 
are completed by other entities and shall incorporate the production 
quantities needed to accommodate the specific service requirements of a 
particular school or school food authority.
* * * * *
    (w-1) School week means the period of time used to determine 
compliance with the nutrition standards and the appropriate calorie and 
nutrient levels in Sec. 220.8. Further, if applicable, school week is 
the basis for conducting Nutrient Standard Menu Planning or Assisted 
Nutrient Standard Menu Planning for breakfasts as provided in 
Sec. 220.8(e) and Sec. 220.8(f). The period shall be a normal school 
week of five consecutive days; however, to accommodate shortened weeks 
resulting from holidays and other scheduling needs, the period shall be 
a minimum of three consecutive days and a maximum of seven consecutive 
days. Weeks in which school breakfasts are offered less than three 
times shall be combined with either the previous or the coming week.
* * * * *


Sec. 220.7  [Amended]

    3. In Sec. 220.7, paragraph (e)(2) is amended by adding the words 
``or Sec. 220.8a, whichever is applicable,'' after the reference to 
``Sec. 220.8''.
    4. Section 220.8 is redesignated as 220.8a and a new section 220.8 
is added to read as follows:


Sec. 220.8  Nutrition standards for breakfast and menu planning 
alternatives.

    (a) Nutrition standards for breakfasts for children age 2 and over. 
School food authorities shall ensure that participating schools provide 
nutritious and well-balanced breakfasts. For children age 2 and over, 
breakfasts shall be offered based on the nutrition standards provided 
in this section when averaged over a school week. For the purposes of 
this section, the nutrition standards are:
    (1) Provision of one-fourth of the Recommended Dietary Allowances 
(RDA) of protein, calcium, iron, vitamin A and vitamin C to the 
applicable age or grade groups in accordance with the appropriate 
levels provided in paragraphs (b), (c), or (e)(1) of this section, 
whichever is applicable;
    (2) Provision of the breakfast energy allowances for children based 
on the age or grade groups in accordance with the appropriate levels 
provided in paragraphs (b), (c) or (e)(1) of this section, whichever is 
applicable;
    (3) The applicable recommendations of the 1990 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 vegetables, fruits, and grain 
products; and
    (vi) Use salt and sodium in moderation.
    (4) The following measures of compliance with the applicable 
recommendations of the 1990 Dietary Guidelines for Americans:
    (i) A limit on the percent of calories from total fat to 30 percent 
based on the actual number of calories offered;
    (ii) A limit on the percent of calories from saturated fat to less 
than 10 percent based on the actual number of calories offered;
    (iii) A reduction of the levels of sodium and cholesterol; and
    (iv) An increase in the level of dietary fiber.
    (5) School food authorities have three alternatives for menu 
planning in order to meet the requirements of this paragraph and the 
appropriate nutrient and calorie levels in paragraphs (b), (c) or 
(e)(1) of this section, whichever is applicable: nutrient standard menu 
planning as provided in paragraph (e) of this section, assisted 
nutrient standard menu planning as provided for in paragraph (f) of 
this section, or food-based menu planning as provided for in paragraph 
(g) of this section. The actual minimum calorie and nutrient levels 
vary depending upon the alternative followed due to the differences in 
age/grade groupings of each alternative.
    (6) Production and menu records shall include sufficient 
information to evaluate the menu's contribution to the requirements on 
nutrition standards in paragraph (a) of this section and the 
appropriate levels of nutrient and calorie levels in paragraphs (b), 
(c) or (e)(1) of this section, whichever is applicable. If applicable, 
schools or school food authorities shall maintain nutritional analysis 
records to demonstrate that breakfasts meet, when averaged over each 
school week, the nutrition standards provided in paragraph (a) of this 
section and the nutrient and calorie levels for children for each age 
or grade group in accordance with paragraphs (b) or (e)(1) of this 
section.
    (b) Nutrient levels/nutrient analysis. (1) For the purposes of 
nutrient standard and assisted nutrient standard menu planning, as 
provided for in paragraphs (e) and (f), respectively, of this section, 
schools shall, at a minimum, provide the calorie and nutrient levels 
for school breakfasts (offered over a school week) for required grade 
groups specified in the following chart:

                                                                                                                                                        
[[Page 31218]]
                    Minimum Requirements for Nutrient and Calorie Levels for School Breakfast                   
                                             [School week averages]                                             
----------------------------------------------------------------------------------------------------------------
                                                                                                     Option for 
                                                                          Preschool    Grades K-12   grades 7-12
----------------------------------------------------------------------------------------------------------------
Energy Allowances (calories)..........................................         388           554           618  
Total Fat (as a Percentage of Actual Total Food Energy)...............       (\1\)         (\1\)         (\1\)  
Total Saturated Fat (as a Percentage of Actual Total Food Energy).....       (\2\)         (\2\)         (\2\)  
Protein (g)...........................................................           5            10            12  
Calcium (mg)..........................................................         200           257           300  
Iron (mg).............................................................           2.5           3.0           3.4
Vitamin A (RE)........................................................         113           197           225  
Vitamin C (mg)........................................................          11            13            14  
----------------------------------------------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.                                                                
\2\ Less than 10 percent over a school week.                                                                    

  (2) At their option, schools may provide for calorie and nutrient 
levels for school breakfasts (offered over a school week) for the age 
groups specified in the following chart or may develop their own age 
groups and their corresponding levels in accordance with paragraph 
(e)(1) of this section.

                    Optional Minimum Nutrient Levels for School Breakfasts/Nutrient Analysis                    
                                             [School week averages]                                             
----------------------------------------------------------------------------------------------------------------
                                                            Ages 3-6      Ages 7-10    Ages 11-13    Ages 14 and
             Nutrients and energy allowances                  years         years         years         above   
----------------------------------------------------------------------------------------------------------------
Energy Allowances/Calories..............................        419           500           588           625   
Total Fat (as a percent of actual total food energy)....      (\1\)         (\1\)         (\1\)         (\1\)   
Saturated Fat (as a percent of actual total food energy)      (\2\)         (\2\)         (\2\)         (\2\)   
RDA for Protein (g).....................................          5.50          7.00         11.25         12.50
RDA for Calcium (mg)....................................        200           200           300           300   
RDA for Iron (mg).......................................          2.5           2.5           3.4           3.4 
RDA for Vitamin A (RE)..................................        119           175           225           225   
RDA for Vitamin C (mg)..................................         11.00         11.25         12.50         14.40
----------------------------------------------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.                                                                
\2\ Less than 10 percent over a school week.                                                                    

    (c) Nutrient levels/food-based menu planning. For the purposes of 
the food-based menu planning alternative as provided for in paragraph 
(g) 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:

                                Calorie and Nutrient Levels for School Breakfast                                
                                             [School week averages]                                             
----------------------------------------------------------------------------------------------------------------
                                                                                                     Option for 
                                                                          Preschool    Grades K-12   grades 7-12
----------------------------------------------------------------------------------------------------------------
Energy Allowances (Calories)..........................................         388           554           618  
Total Fat (as a percentage of actual total food energy)...............         \1\           \1\           \1\  
Total Saturated Fat (as a percentage of actual total food energy).....         \2\           \2\           \2\  
Protein (g)...........................................................           5            10            12  
Calcium (mg)..........................................................         200           257           300  
Iron (mg).............................................................           2.5           3.0           3.4
 Vitamin A (RE).......................................................         113           197           225  
Vitamin C (mg)........................................................          11            13            14  
----------------------------------------------------------------------------------------------------------------
\1\ Not to Exceed 30 Percent Over a School Week                                                                 
\2\ Less Than 10 Percent Over a School Week                                                                     

    (d) Exceptions. Breakfasts claimed for reimbursement shall meet the 
nutrition requirements for reimbursable meals specified in this 
section. However, breakfasts served which accommodate the exceptions 
and variations authorized under this paragraph are also reimbursable. 
Exceptions and variations are restricted to the following:
    (1) Medical or dietary needs. Schools shall make substitutions in 
the foods or menu items offered in accordance with this section for 
students who are considered to have a disability under 7 CFR part 15b 
and whose disability restricts their diet. Schools may also make 
substitutions for students who do not have a disability but who are 
unable to consume the regular breakfast because of medical or other 
special dietary needs. Substitutions shall be made on a case-by-case 
basis only when supported by a statement of the need for substitutions 
that includes recommended alternate foods, unless otherwise exempted by 
FCS. Such statement shall, in the case of a disabled student, be signed 
by a physician or, in the case of a student who is not disabled, by a 
recognized medical authority.
    (2) FCS encourages school food authorities to consider ethnic and 
religious preferences when planning and preparing meals. For the 
purposes [[Page 31219]] of the food-based menu planning alternative, 
FCS may approve variations in the food components of the breakfast on 
an experimental or on a continuing basis in any school where there is 
evidence that such variations are nutritionally sound and are necessary 
to meet ethnic, religious, or economic needs.
    (e) Nutrient Standard Menu Planning. (1) Adjusted nutrient levels.  
(i) At a minimum, schools that choose the nutrient standard menu 
planning alternative and that have children age 2 enrolled shall ensure 
that the nutrition standards in paragraph (a) of this section and the 
required preschool levels for nutrients and calories in paragraph 
(b)(1) of this section are met except that, such schools have the 
option of either using the nutrient and calorie levels for preschool 
children in paragraph (b)(2) of this section, or developing separate 
nutrient levels for this age group. The methodology for determining 
such levels will be available in menu planning guidance material 
provided by FCS.
    (ii) At a minimum, schools shall offer meals to children based on 
the required grade groups in paragraph (b)(1) of this section. However, 
schools may, at their option, offer meals to children using the age 
groups and their corresponding nutrient and calorie levels in paragraph 
(c)(2) of this section or, following guidance provided by FCS, develop 
their own age or grade groups and their corresponding nutrient and 
calorie levels. However, if only one age or grade is outside the 
established levels, schools may use the levels for the majority of 
children regardless of the option selected.
    (2) Contents of reimbursable meal and offer versus serve. (i)  
Minimum requirements. For the purposes of this menu planning 
alternative, a reimbursable breakfast shall include a minimum of three 
menu items as defined in Sec. 220.2. All menu items or foods offered as 
part of the reimbursable meal may be considered as contributing towards 
meeting the nutrition standards in paragraph (a) of this section and 
the appropriate nutrient and calorie levels in paragraphs (b) or (e)(1) 
of this section, whichever is applicable, except for those foods that 
are considered foods of minimal nutritional value as provided for in 
Sec. 220.2(i-1) which are not offered as part of a menu item in a 
reimbursable meal. Such reimbursable breakfasts, as offered, shall meet 
the established nutrition standards in paragraph (a) of this section 
and the appropriate nutrient and calorie levels in paragraphs (b) or 
(e)(1) of this section, whichever is applicable, when averaged over a 
school week.
    (ii) Offer versus serve. Each participating school shall offer its 
students at least three menu items as required by paragraph (e)(2)(i) 
of this section. Under offer versus serve, senior high students must 
select at least two menu items and may decline a maximum of one menu 
item offered. At the discretion of the school food authority, students 
below the senior high level may also participate in offer versus serve. 
The price of a reimbursable breakfast shall not be affected if a 
student declines a menu item or requests smaller portions. State 
educational agencies shall define ``senior high.''
    (3) Nutrient analysis under Nutrient Standard Menu Planning. School 
food authorities choosing the nutrient analysis alternative shall 
conduct nutrient analysis on all menu items or foods offered as part of 
the reimbursable meal. However, those foods that are considered as 
foods of minimal nutritional value as provided for in Sec. 220.2(i-1) 
which are not offered as part of a menu item in a reimbursable meal 
shall not be included. Such analysis shall be over the course of each 
school week.
    (4) The National Nutrient Database and software specifications. (i) 
Nutrient analysis shall be based on information provided in the 
National Nutrient Database for Child Nutrition Programs. This database 
shall be incorporated into software used to conduct nutrient analysis. 
Upon request, FCS will provide information about the database to 
software companies that wish to develop school food service software 
systems.
    (ii) Any software used to conduct nutrient analysis shall be 
evaluated beforehand by FCS or by an FCS designee and, as submitted, 
has been determined to meet the minimum requirements established by 
FCS. However, such review does not constitute endorsement by FCS or 
USDA. Such software shall provide the capability to perform all 
functions required after the basic data has been entered including 
calculation of weighted averages and the optional combining of analysis 
of the breakfast and lunch programs as provided in paragraph (e)(5) of 
this section.
    (5) Determination of weighted averages. (i) Menu items and foods 
offered as part of a reimbursable meal shall be analyzed based on 
portion sizes and projected serving amounts and shall be weighted based 
on their proportionate contribution to the meals. Therefore, in 
determining whether meals satisfy nutritional requirements, menu items 
or foods more frequently offered will be weighted more heavily than 
menu items or foods which are less frequently offered. Such weighting 
shall be done in accordance with guidance issued by FCS as well as that 
provided by the software used.
    (ii) An analysis of all menu items and foods offered in the menu 
over each school week shall be computed for calories and for each of 
the following nutrients: protein; vitamin A; vitamin C; iron; calcium; 
total fat; saturated fat; and sodium. The analysis shall also include 
the dietary components of cholesterol and dietary fiber.
    (iii) At its option, a school food authority may combine analysis 
of the National School Lunch and School Breakfast Programs. Such 
analysis shall be proportionate to the levels of participation in the 
two programs in accordance to guidance issued by FCS.
    (6) Comparing average nutrient levels. Once the appropriate 
procedures of paragraph (e)(5) of this section have been completed, the 
results shall be compared to the appropriate nutrient and calorie 
levels, by age/grade group, in paragraphs (b)(1) or (b)(2) of this 
section or the levels developed in accordance with paragraph (e)(1) of 
this section, whichever is applicable to determine the school week's 
average. In addition, comparisons shall be made to the nutrition 
standards provided in paragraph (a) of this section in order to 
determine the degree of conformity over the school week.
    (7) Adjustments based on students' selections. The results obtained 
under paragraph (e)(5) and (e)(6) of this section shall be used to 
adjust future menu cycles to accurately reflect production and the 
frequency with which menu items and foods are offered. Menus may 
require further analysis and comparison, depending on the results 
obtained in paragraph (e)(6) of this section when production and 
selection patterns of students change. The school food authority may 
need to consider modifications to the menu items and foods offered 
based on student selections as well as modifications to recipes and 
other specifications to ensure that the nutrition standards provided in 
paragraph (a) of this section and the appropriate calorie and nutrient 
levels in paragraphs (b) or (e)(1) of this section, whichever is 
applicable, are met.
    (8) Standardized recipes. Under Nutrient Standard Menu Planning, 
standardized recipes shall be developed and followed. A standardized 
recipe is one that was tested to provide an established yield and 
quantity through [[Page 31220]] the use of ingredients that remain 
constant in both measurement and preparation methods. USDA/FCS 
standardized recipes are included in the National Nutrient Database for 
the Child Nutrition Programs. In addition, local standardized recipes 
used by school food authorities shall be analyzed for their calories, 
nutrients and dietary components, as provided for in paragraph 
(e)(5)(ii) of this section, and added to the local databases by school 
food authorities in accordance with guidance issued by FCS.
    (9) Processed foods. Unless already included in the National 
Nutrient Database, the calorie amounts, nutrients and dietary 
components, as provided in paragraph (e)(5)(ii) of this section, of 
purchased processed foods and menu items used by the school food 
authority shall be obtained by the school food authority or State 
agency and incorporated into the database at the local level in 
accordance with FCS guidance.
    (10) Menu substitutions. If the need for serving a substitute 
food(s) or menu item(s) occurs at least two weeks prior to serving the 
planned menu, the revised menu shall be reanalyzed based on the 
changes. If the need for serving a substitute food(s) or menu item(s) 
occurs two weeks or less prior to serving the planned menu, no 
reanalysis is required. However, to the extent possible, substitutions 
should be made using similar foods.
    (11) Compliance with the nutrition standards. If the analysis 
conducted in accordance with paragraphs (e)(1) through (e)(10) of this 
section shows that the menus offered are not meeting the nutrition 
standards in paragraph (a) of this section and the appropriate levels 
of nutrients and calories in paragraphs (b)(1) or (b)(2) of this 
section or the levels developed in accordance with paragraph (e)(1), 
whichever is applicable, actions, including technical assistance and 
training, shall be taken by the State agency, school food authority, or 
school, as appropriate, to ensure that the breakfasts offered to 
children comply with the nutrition standards established by paragraph 
(a) of this section and the appropriate levels of nutrient sand 
calories in paragraphs (b) or (e)(1) of this section, whichever is 
applicable.
    (12) Other programs. Any school food authority that operates the 
Summer Food Service Program under Part 225 of this chapter and/or the 
Child and Adult Care Food Program under Part 226 of this chapter may, 
at its option and with State agency approval, prepare meals provided 
for those programs using the nutrient standard menu planning 
alternative, except for children under two years of age. For school 
food authorities providing meals for adults, FCS will provide guidance 
on the level of nutrients and calories needed.
    (f) Assisted Nutrient Standard Menu Planning. (1) School food 
authorities without the capability to conduct Nutrient Standard Menu 
Planning, as provided in paragraph (e) of this section may choose an 
alternative which uses menu cycles developed by other sources. Such 
sources may include but are not limited to the State agency, other 
school food authorities, consultants, or food service management 
companies. This alternative is Assisted Nutrient Standard Menu 
Planning.
    (2) Assisted Nutrient Standard Menu Planning shall establish menu 
cycles that have been developed in accordance with paragraphs (e)(1) 
through (e)(10) of this section as well as local food preferences and 
local food service operations. These menu cycles shall incorporate the 
nutrition standards in paragraph (a) of this section and the 
appropriate nutrient and calorie levels in paragraph (b) or (e)(1) of 
this section, whichever is applicable. In addition to the menu cycle, 
recipes, food product specifications and preparation techniques shall 
also be developed and provided by the entity furnishing Assisted 
Nutrient Standard Menu Planning to ensure that the menu items and foods 
offered conform to the nutrient analysis determinations of the menu 
cycle.
    (3) At the inception of any use of Assisted Nutrient Standard Menu 
Planning, the State agency shall approve the initial menu cycle, 
recipes, and other specifications to determine that all required 
elements for correct nutrient analysis are incorporated. The State 
agency shall also, upon request of the school food authority, provide 
assistance with implementation of the chosen system.
    (4) After initial service of the menu cycle under the Assisted 
Nutrient Standard Menu Planning, the nutrient analysis shall be 
reassessed and appropriate adjustments made in accordance with 
paragraph (e)(7) of this section.
    (5) Under Assisted Nutrient Standard Menu Planning, the school food 
authority retains final responsibility for ensuring that all nutrition 
standards established in paragraph (a) of this section and the 
appropriate nutrient and calorie levels in paragraphs (b) or (e)(1) of 
this section, whichever is applicable, are met.
    (6) If the analysis conducted in accordance with paragraphs (e)(1) 
through (e)(10) and paragraph (f)(4) of this section shows that the 
menus offered are not meeting the nutrition standards in paragraph (a) 
of this section and the appropriate nutrient and calorie levels in 
paragraph (b) of this section or the levels developed in accordance 
with paragraph (e)(1) of this section, whichever is applicable, 
actions, including technical assistance and training, shall be taken by 
the State agency, school food authority, or school, as appropriate, to 
ensure that the breakfasts offered to children comply with the 
nutrition standards established by paragraph (a) of this section and 
the appropriate nutrient and calorie levels in paragraphs (b) or (e)(1) 
of this section, whichever is applicable.
    (7) Any school food authority that operates the Summer Food Service 
Program under Part 225 of this chapter and/or the Child and Adult Care 
Food Program under Part 226 of this chapter may, at its option and with 
State agency approval, prepare meals provided for those programs using 
the assisted nutrient standard menu planning alternative, except for 
children under two years of age. For school food authorities providing 
meals for adults, FCS will provide guidance on the level of nutrients 
and calories needed.
    (g) Food-based menu planning. (1) Food components. Except as 
otherwise provided in this paragraph and in any appendix to this part 
to be eligible for Federal cash reimbursement, a breakfast planned 
using the food-based menu planning alternative shall contain, at a 
minimum, the following food components in the quantities specified in 
the table in paragraph (g)(2) of this section:
    (i) A serving of fluid milk served as a beverage or on cereal or 
used in part for each purpose;
    (ii) A serving of fruit or vegetable or both, or full-strength 
fruit or vegetable juice; and
    (iii) Two servings from one of the following components or one 
serving from each:
    (A) Grains/breads;
    (B) Meat/Meat alternate.
    (2) Minimum quantities. At a minimum, schools shall serve meals in 
the quantities provided in the following chart:

                                                                                                                
[[Page 31221]]
----------------------------------------------------------------------------------------------------------------
                                                    Minimum quantities required for                             
                      ------------------------------------------------------------------------------------------
    Meal component                                                                          Option for grades 7-
                              Ages 1-2              Preschool             Grades K-12                12         
----------------------------------------------------------------------------------------------------------------
Milk (Fluid) (As a     \1/2\ Cup............  \3/4\ Cup............  8 Ounces.............  8 Ounces            
 beverage, on cereal                                                                                            
 or both).                                                                                                      
                                                                                                                
Juice/Fruit/           \1/4\ Cup............  \1/2\ Cup............  \1/2\ Cup............  \1/2\ Cup           
 Vegetable: Fruit and/                                                                                          
 or vegetable; or                                                                                               
 full-strength fruit                                                                                            
 juice or vegetable                                                                                             
 juice.                                                                                                         
----------------------------------------------------------------------------------------------------------------
               SELECT ONE SERVING FROM EACH OF THE FOLLOWING COMPONENTS OR TWO FROM ONE COMPONENT:              
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Grains/Breads-One of                                                                                            
 the following or an                                                                                            
 equivalent                                                                                                     
 combination:                                                                                                   
    Whole-Grain or     \1/2\ Slice..........  \1/2\ Slice..........  1 Slice..............  1 Slice.            
     Enriched Bread.                                                                                            
    Whole-Grain or     \1/2\ Serving........  \1/2\ Serving........  1 Serving............  1 Serving.          
     Enriched                                                                                                   
     Biscuit, Roll,                                                                                             
     Muffin, Etc.                                                                                               
    Whole-Grain,       \1/4\ Cup or \1/3\     \1/3\ Cup or \1/2\     \3/4\ Cup or 1 Ounce.  \3/4\ Cup or 1      
     Enriched or        Ounce.                 Ounce.                                        Ounce. Plus an     
     Fortified Cereal.                                                                       Additional Serving 
                                                                                             of one of the      
                                                                                             Grains/Breads      
                                                                                             Above.             
Meat or Meat                                                                                                    
 Alternates:                                                                                                    
    Meat/poultry or    \1/2\ Ounce..........  \1/2\ Ounce..........  1 Ounce..............  1 Ounce.            
     fish.                                                                                                      
    Cheese...........  \1/2\ Ounce..........  \1/2\ Ounce..........  1 Ounce..............  1 Ounce.            
    Egg (large)......  \1/2\................  \1/2\................  \1/2\................  \1/2\.              
    Peanut butter or   1 Tablespoon.........  1 Tablespoon.........  2 Tablespoons........  2 Tablespoons.      
     other nut or                                                                                               
     seed butters.                                                                                              
    Cooked dry beans   2 Tablespoons........  2 Tablespoons........  4 Tablespoons........  4 Tablespoons       
     and peas.                                                                                                  
    Nut and/or seeds   \1/2\ Ounce..........  \1/2\ Ounce..........  1 Ounce..............  1 Ounce.            
     (as listed in                                                                                              
     program                                                                                                    
     guidance) \1\.                                                                                             
----------------------------------------------------------------------------------------------------------------
\1\ No more than 1 ounce of nuts and/or seeds may be served in any one meal.                                    

  (3) Offer Versus Serve. Each school shall offer its students all 
four required food items as set forth under paragraph (g)(1) of this 
section. At the option of the school food authority, each school may 
allow students to refuse one food item from any component that the 
student does not intend to consume. The refused food item may be any of 
the four items offered to the student. A student's decision to accept 
all four food items or to decline one of the four food items shall not 
affect the charge for breakfast.
    (4) Outlying areas. Schools in American Samoa, Puerto Rico and the 
Virgin Islands may serve a starchy vegetable such as yams, plantains, 
or sweet potatoes to meet the grain/bread requirement. For the 
Commonwealth of the Northern Mariana Islands, FCS has established a 
menu consistent with the food-based menu alternative and with local 
food consumption patterns and which, given available food supplies and 
food service equipment and facilities, provides optimum nutrition 
consistent with sound dietary habits for participating children. The 
State agency shall attach to and make a part of the written agreement 
required under Sec. 210.9 of this chapter the requirements of that menu 
option.
    (h) Milk requirement for children ages 2-17. (1) A serving of milk 
as a beverage or on cereal or used in part for each purpose shall be 
offered for school breakfasts.
    (2) If emergency conditions prevent a school normally having a 
supply of milk from temporarily obtaining delivery thereof, the State 
agency, or FCSRO where applicable, may approve reimbursement for 
breakfast served without milk during the emergency period.
    (3) If a school is unable to obtain a supply of any type of fluid 
milk on a continuing basis, the State agency may approve the service of 
breakfasts without milk if the school uses an equivalent amount of 
canned or dry milk in the preparation of breakfasts. In Alaska, Hawaii, 
American Samoa, Guam, Puerto Rico, the Commonwealth of the Northern 
Mariana Islands, and the Virgin Islands, if a sufficient supply of 
fluid milk cannot be obtained, ``milk'' shall include reconstituted or 
recombined milk, or as otherwise provided under written exception by 
FCS.
    (i) Infant meal pattern. When infants from birth through 11 months 
of age participate in the Program, an infant breakfast shall be 
offered. Foods within the infant breakfast pattern shall be of texture 
and consistency appropriate for the particular age group being served, 
and shall be served to the infant during a span of time consistent with 
the infant's eating habits. For infants 4 through 7 months of age, 
solid foods are optional and should be introduced only when the infant 
is developmentally ready. Whenever possible, the school should consult 
with the infant's parent in making the decision to introduce solid 
foods. Solid foods should be introduced one at a time on a gradual 
basis with the intent of ensuring health and nutritional well-being. 
For infants 8 through 11 months of age, the total amount of food 
authorized in the meal patterns set forth below must be provided in 
order to qualify for reimbursement. Additional foods may be served to 
infants 4 months of age and older with the intent of improving their 
overall nutrition. Breast milk, provided by the infant's mother, may be 
served in place of infant formula from birth through 11 months of age. 
However, meals containing only breast milk do not qualify for 
reimbursement. Meals containing breast milk served to infants 4 months 
or older may be claimed for reimbursement when the other meal component 
or components are supplied by the school. Although it is recommended 
that either breast milk or iron-fortified infant formula be served for 
the entire first year, whole milk may be served beginning at 8 months 
of age as long as infants are consuming one-third of their calories as 
a balanced mixture of cereal, fruits, vegetables, and other foods in 
order to ensure adequate [[Page 31222]] sources of iron and vitamin C. 
The infant breakfast pattern shall contain, at a minimum, each of the 
following components in the amounts indicated for the appropriate age 
groups:
    (1) Birth through 3 months. 4 to 6 fluid ounces of iron-fortified 
infant formula.
    (2) 4 through 7 months. 4 to 8 fluid ounces of iron-fortified 
infant formula; and 0 to 3 tablespoons of iron-fortified dry infant 
cereal (optional).
    (3) 8 through 11 months. 6 to 8 fluid ounces of iron-fortified 
infant formula or 6 to 8 fluid ounces of whole milk; 2 to 4 tablespoons 
of iron-fortified dry infant cereal; and 1 to 4 tablespoons of fruit or 
vegetable of appropriate consistency or a combination of both.
    (j) Additional foods. Additional foods may be served with 
breakfasts as desired to participating children over 1 year of age.
    (k) Choice. To provide variety and to encourage consumption and 
participation, schools should, whenever possible, provide a selection 
of menu items and foods from which children may make choices. When a 
school offers a selection of more than one type of breakfast or when it 
offers a variety of menu items and foods and milk for choice as a 
reimbursable breakfast, the school shall offer all children the same 
selection regardless of whether the children are eligible for free or 
reduced price breakfasts or pay the school food authority designated 
full price. The school may establish different unit prices for each 
type of breakfast offered provided that the benefits made available to 
children eligible for free or reduced price breakfasts are not 
affected.
    (l) Nutrition disclosure. School food authorities are encouraged to 
make information available indicating efforts to meet the nutrition 
standards in paragraph (a) of this section.
    (m) Implementation of nutrition standards. School food authorities 
shall comply with the 1990 Dietary Guidelines for Americans as provided 
in paragraph (a) of this section no later than School Year 1996-97 
except that State agencies may grant waivers to postpone implementation 
until no later than School Year 1998-99. Such waivers shall be granted 
by the State agency using guidance provided by the Secretary.
    5. The section heading of newly redesignated Sec. 220.8a is revised 
to read as follows:


Sec. 220.8a  Breakfast components and quantities for the meal pattern.

* * * * *


Sec. 220.9  [Amended]

    6. In Sec. 220.9, the first sentence of paragraph (a) is amended by 
adding the words ``or Sec. 220.8a, whichever is applicable,'' after the 
reference to ``Sec. 220.8''.
    7. In Sec. 220.13, paragraphs (f)(3) and (f)(4) are redesignated as 
paragraphs (f)(4) and (f)(5), respectively and a new paragraph (f)(3) 
is added to read as follows:


Sec. 220.13  Special responsibilities of State agencies.

* * * * *
    (f) * * * 
    (3) For the purposes of compliance with the 1990 Dietary Guidelines 
for Americans and the calorie and nutrient levels specified in 
Sec. 220.8, the State agency shall follow the provisions specified in 
Sec. 210.19(a)(1) of this chapter.
* * * * *


Sec. 220.14  [Amended]

    8. In Sec. 220.14, paragraph (h) is amended by removing the 
reference to ``Sec. 220.8 (a)(1), (b)(1), and (b)(3)'' and adding in 
its place the words ``Sec. 220.8 (g), Sec. 220.8 (i)(2) and (i)(3) or 
Sec. 220.8a (a)(1), (b)(2), and (b)(3), whichever is applicable.''

Appendix A--[Amended]

    9. In Appendix A, Alternate Foods for Meals, Formulated Grain-Fruit 
Products, paragraph 1(a) is amended by adding the words ``or 
Sec. 220.8a, whichever is applicable'' after the reference to 
``Sec. 220.8.''

Appendix C--[Amended]

    10. In Appendix C, Child Nutrition (CN) Labeling Program:
    a. paragraph 2(a) is amended by adding the words ``or 210.10a, 
whichever is applicable,'' after the reference to ``210.10'';
    b. the first sentence of paragraph 3(c)(2) is amended by adding the 
words ``or 210.10a, whichever is applicable,'' after the reference to 
``210.10'' and by adding the words ``or 220.8a, whichever is 
applicable,'' after the reference to ``220.8''; and
    c. the second sentence of paragraph 6 is amended by adding the 
words ``or 210.10a, whichever is applicable,'' after the reference to 
``210.10'' and by adding the words ``or 220.8a, whichever is 
applicable,'' after the reference to 220.8''.

    Dated: June 6, 1995.
Ellen Haas,
Under Secretary for Food, Nutrition, and Consumer Services.
[FR Doc. 95-14292 Filed 6-12-95; 8:45 am]
BILLING CODE 3410-30-P