[Federal Register Volume 63, Number 94 (Friday, May 15, 1998)]
[Proposed Rules]
[Pages 27162-27188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11654]



[[Page 27161]]

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Part IV





Department of Agriculture





_______________________________________________________________________



Food and Nutrition Service



_______________________________________________________________________



7 CFR Parts 210 and 220



National School Lunch Program and School Breakfast Program: Additional 
Menu Planning Alternatives; Proposed Rule; Republication

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

[[Page 27162]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

RIN 0584-AC38


National School Lunch Program and School Breakfast Program: 
Additional Menu Planning Alternatives

    Editorial Note: FR Doc. 98-11654 was originally published at 63 
FR 24686-24709 in the issue of Monday, May 4, 1998. Due to numerous 
errors, the document is being republished in its entirety. The 
comment dates have changed. Also, disregard the correction document 
published at 63 FR 25569 May 8, 1998.
AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: The National School Lunch Act requires that schools that are 
participating in the National School Lunch or School Breakfast Programs 
claim reimbursements only for lunches or breakfasts which meet the 
nutrition standards of the National School Lunch Act, including 
compliance with the Dietary Guidelines for Americans. The Healthy Meals 
for Children Act expanded the number of menu planning alternatives 
available to school food authorities participating in the National 
School Lunch and School Breakfast Programs. In accordance with that 
legislation, this proposed rulemaking would reinstate the menu planning 
system in effect for School Year 1994-95 (the traditional meal pattern) 
as one of the menu planning alternatives available to local school food 
authorities. In addition, this proposal would permit school food 
authorities to use ``any reasonable approach'' to plan menus to meet 
the nutrition standards. The Department is also proposing to clarify 
and simplify several State agency monitoring responsibilities 
associated with the implementation of the nutrition standards of the 
National School Lunch Act.

DATES: To be assured of consideration, comments must be postmarked or 
e-mail comments dated on or before November 12, 1998.

ADDRESSES: Comments must sent to: Mr. Robert M. Eadie, Chief, Policy 
and Program Development Branch, Child Nutrition Division, Food and 
Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 
22302 or via the Internet at [email protected]. All written 
submissions will be available for public inspection in Room 1007, 3101 
Park Center Drive, Alexandria, Virginia during regular business hours 
(8:30 a.m. to 5:30 p.m.), Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Robert M. Eadie at the above address 
or by telephone at 703-305-2620.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed rule has been determined to be significant and is 
subject to review by the Office of Management and Budget under 
Executive Order 12866.

Public Law 104-4

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, the 
Food and Nutrition Service generally prepare a written statement, 
including a cost-benefit analysis, for proposed and final rules with 
``Federal mandates'' that may result in expenditures to State, local, 
or tribal governments, in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is needed 
for a rule, section 205 of the UMRA generally requires the Food and 
Nutrition Service to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, more cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule.
    This proposed rule contains no Federal mandates (under regulatory 
provisions of Title II of the UMRA) for State, local, and tribal 
governments or the private sector of $100 million or more in any one 
year. Thus, this proposed rule is not subject to the requirements of 
sections 202 and 205 of the UMRA. However, a Regulatory Cost/Benefit 
Assessment is provided in the Appendix to this preamble.

Regulatory Flexibility Act

    This proposed rule has been reviewed with regard to the 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 through 
612). The Under Secretary for Food, Nutrition and Consumer Services has 
certified that this rule will not have a significant economic impact on 
a substantial number of small entities. The Department of Agriculture 
(the Department or USDA) does not anticipate any adverse fiscal impact 
on local schools as the proposal would expand the number of options 
available to plan menus for school meals.

Executive Order 12372

    The National School Lunch Program and the School Breakfast Program 
are listed in the Catalog of Federal Domestic Assistance under Nos. 
10.555 and 10.553, respectively, and are subject to the provisions of 
Executive Order 12372, which requires intergovernmental consultation 
with State and local officials. (7 CFR Part 3015, Subpart V and final 
rule-related notice at 48 FR 29112, June 24, 1983.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is intended to have preemptive 
effect with respect to any State or local laws, regulations or policies 
which conflict with its provisions or which would otherwise impede its 
full implementation. This proposed rule is not intended to have 
retroactive effect unless so specified in the Effective Date section of 
this preamble. Prior to any judicial challenge to the provisions of 
this proposed rule or the application of the provisions, all applicable 
administrative procedures must be exhausted. In the National School 
Lunch Program and School Breakfast Program, the administrative 
procedures are set forth under the following regulations: (1) School 
food authority appeals of State agency findings as a result of an 
administrative review must follow State agency hearing procedures as 
established pursuant to 7 CFR 210.18(q); (2) school food authority 
appeals of Food and Nutrition Service (FNS) findings as a result of an 
administrative review must follow FNS hearing procedures as established 
pursuant to 7 CFR 210.30(d)(3); and (3) State agency appeals of State 
Administrative Expense fund sanctions (7 CFR 235.11(b)) must follow the 
FNS Administrative Review Process as established pursuant to 7 CFR 
235.11(f).

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 
3507, this notice invites the general public and other public agencies 
to comment on the information collection.
    Written comments must be received on or before July 14, 1998.
    Comments concerning the information collection aspects of this 
proposed rule should be sent to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Room 3208, 
New Executive Office Building, Washington, DC. 20503, Attention : Laura 
Oliven, Desk Officer for FNS. A copy of these

[[Page 27163]]

comments may also be sent to Mr. Eadie at the address listed in the 
ADDRESSES section of this preamble. Commenters are asked to separate 
their information collection requirements comments from their comments 
on the remainder of this proposed rule.
    OMB is required to make a decision concerning the collection of 
information contained in this proposed regulation between 30 and 60 
days after the publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to the Department on the 
proposed regulation.
    Comments are invited on: (a) Whether the collection of information 
is necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility; (b) the 
accuracy of the agency's estimate of the burden of the collection of 
information, including the validity of the methodology and assumptions 
used; (c) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (d) ways to minimize the burden of the 
collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques of other forms of information 
technology.
    The title, description, and respondent description of the 
information collections are shown below with an estimate of the annual 
recordkeeping burdens. Included in the estimate is the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Title: 7 CFR Part 210, National School Lunch Program.
    OMB Number: 0584-0006.
    Expiration Date: October 31, 1999.
    Type of Request: Revision of currently approved collection.
    Abstract: The National School Lunch Act requires that schools that 
are participating in the school lunch program claim reimbursements only 
for lunches under the program which meet the nutrition standards of the 
Act, including compliance with the Dietary Guidelines for Americans. 
The Healthy Meals for Children Act expanded the number of menu planning 
alternatives available to school food authorities participating in the 
NSLP. In accordance with that legislation, this proposed rulemaking 
would reinstate the menu planning system in effect for school year 
1994-95 (the traditional meal pattern) as one of the menu planning 
alternatives available to local school food authorities. In addition, 
this proposal would permit school food authorities to use ``any 
reasonable approach'' to meet the requirements.
    In accordance with the Paperwork Reduction Act of 1995, the 
Department is providing the public with the opportunity to provide 
comments on the information collection requirements of the proposed 
rule as noted below:

BILLING CODE 1505-01-F

[[Page 27164]]

[GRAPHIC] [TIFF OMITTED] TP15MY98.000



BILLING CODE 1505-01-C

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Background

    On June 13, 1995, USDA published a final rule (60 FR 31188) 
updating the nutrition standards for the National School Lunch Program 
(NSLP) and School Breakfast Program (SBP). That rulemaking was the 
foundation of the Department's School Meals Initiative for Healthy 
Children, an integrated, comprehensive plan for promoting the health of 
the Nation's school children by updating the nutrition standards for 
school meals and by providing State agencies and local food service 
operators with the technical assistance to meet these standards. In 
addition to announcing a fundamental change in the direction of the 
school meals programs, the rulemaking implemented section 106(b) of 
Public Law 103-448, the Healthy Meals for Healthy Americans Act of 
1994, which was enacted on November 2, 1994. That provision amended 
section 9(f) of the National School Lunch Act (NSLA) (42 U.S.C. 
1758(f)) to require that school meals meet the Dietary Guidelines for 
Americans (hereinafter referred to as the Dietary Guidelines) by School 
Year 1996/1997, unless an implementation waiver of up to two years was 
approved by the State agency. The rule also established specific 
minimum standards for key nutrients (protein, calcium, iron, Vitamin A 
and Vitamin C), and calories which school meals must meet. (As 
discussed later, these standards are now also included in section 9(f) 
of the NSLA.)
    To assist schools with implementation of the updated nutrition 
standards, the School Meals Initiative (SMI) rule provided three menu 
planning alternatives: Nutrient Standard Menu Planning (NSMP), Assisted 
Nutrient Standard Menu Planning (ANSMP) and a food-based menu planning 
alternative. After publication of the final SMI rule, Public Law 104-
149, the Healthy Meals for Children Act, was enacted on May 29, 1996. 
It expanded the number of menu planning alternatives which school food 
authorities have available to them by including the menu planning 
system that was in effect for School Year 1994-95, as a permanent 
option as well as ``any reasonable approach, within guidelines 
established by the Secretary * * *.''
    Before a proposed rule to implement Public Law 104-149 could be 
published, Public Law 104-193, the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996, was enacted on August 22, 1996. 
This law further amended section 9(f)(1)(B) of the NSLA to mandate that 
school lunches and breakfasts provide, over a week, one-third and one-
fourth, respectively, of the Recommended Dietary Allowances (RDA) 
established by the Food and Nutrition Board of the National Research 
Council of the National Academy of Sciences. Because these requirements 
are already included in the regulations establishing the new specific 
nutrition standards for school lunches and breakfasts (Sec. 210.10(b) 
and Sec. 220.8(a), respectively), this proposal would only add the 
appropriate RDA requirements for the traditional meal pattern.

Menu Planning Systems

    The sole menu planning system that was in effect for School Year 
1994-95 was a meal pattern (the ``traditional'' meal pattern) which 
stipulated the food components (meat/meat alternate, fruits/vegetables, 
bread/bread alternate, and milk) and the minimum quantities of those 
components that had to be offered to children of specific age/grade 
groups. This meal pattern was virtually unchanged since the 
establishment of the NSLP in 1946 and, until the June 13, 1995, 
rulemaking, was the only menu planning system available to school food 
authorities.
    In order to provide flexibility as well as the tools that school 
food authorities would need to meet modern nutrition standards for 
children, the Department developed new menu planning alternatives 
designed to facilitate compliance with the Dietary Guidelines and the 
other nutrition-related requirements of section 9(f) of the NSLA. NSMP 
and ANSMP provide menu planners with more flexible approaches by 
eliminating the strict component and quantity requirements. Also, NSMP 
and ANSMP provide actual nutrient information, including fat and 
saturated fat levels, to menu planners on an on-going basis. In 
addition, after the initial proposal in 1994, the Department developed 
the enhanced food-based menu planning option which increased the 
minimum number of servings over a week's time for the fruits/vegetables 
and grains/breads components in order to maintain calorie levels while 
keeping the percentages of calories from fat and saturated fat to 30 
percent and less than 10 percent, respectively, as required. School 
food authorities were given the option of choosing which of these menu 
planning alternatives best suited their particular circumstances.
    The Department developed these menu planning alternatives with the 
Dietary Guidelines nutrition standards of the NSLA as the fundamental 
element. The Department continues to believe that the enhanced food-
based, NSMP and ANSMP alternatives best support compliance with the 
Dietary Guidelines. However, the Department acknowledges that some 
school food authorities are progressing toward meeting the Dietary 
Guidelines under the traditional meal pattern. Therefore, the 
Department has concluded that, with increased emphasis on vegetables, 
fruits and grain products and with appropriate modifications to 
preparation techniques and product specifications, the traditional meal 
pattern may support all of the nutrition standards required by the 
NSLA. In recognition of this potential, the President signed Public Law 
104-149 which amended section 9(f) of the NSLA to authorize the 
traditional meal pattern as a permanent menu planning alternative as 
well as any other reasonable approaches to menu planning under 
guidelines established by the Secretary.
    The remainder of this preamble discusses the proposed 
implementation of the recent statutory amendments. This proposal also 
clarifies monitoring procedures for assessing compliance with the 
Dietary Guidelines and the other nutrition standards for all menu 
planning alternatives.

The 1994-95 Meal Pattern (The Traditional Meal Pattern)

    This proposal would reinstate the menu planning system in effect 
for School Year 1994-1995 as a permanent alternative for planning 
school menus under the NSLP and SBP. The SMI final rulemaking did not 
allow continued use of the traditional meal pattern after June 30, 
1998, the latest date that school food authorities could be authorized 
to delay compliance with the Dietary Guidelines. Therefore, the 
provisions for the traditional meal pattern for the NSLP were moved to 
a separate section (Sec. 210.10a) so that schools could continue using 
the traditional meal pattern until the newer menu planning alternatives 
had been fully implemented. Similarly, the traditional meal pattern for 
the SBP was redesignated as Sec. 220.8a.
    Now that Public Law 104-149 has reinstated the traditional meal 
pattern as a permanent, food-based menu planning alternative, this 
proposal would incorporate it into paragraphs (d) and (k) of 
Sec. 210.10 and into paragraphs (c) and (g) of Sec. 220.8 where the 
requirements for the food-based menu planning alternative established 
by the June 13, 1995, final rule are set forth. Sections 210.10a and 
220.8a would be removed. Please note that, due to the statutory 
amendment made after publication of the final rule, the

[[Page 27166]]

traditional menu planning approach will remain in effect after the July 
1, 1998, implementation deadline in Sec. 210.10 (o) and Sec. 220.8(m). 
To distinguish between the two food-based systems, the meal pattern in 
effect for School Year 1994/1995 would be formally renamed the 
``traditional food-based menu planning alternative.'' The food-based 
menu planning alternative established in the June 13, 1995, rulemaking 
would be renamed the ``enhanced food-based menu planning alternative.''

RDA for the Traditional Food-Based Menu Planning Alternative

    One proposed revision to Sec. 210.10(d) of the NSLP regulations 
would add a chart indicating the amounts of calories and required 
nutrients that equal one-third of the RDA for key nutrients and 
calories for the age/grade groups of the traditional food-based menu 
planning alternative. A similar chart showing one-fourth of the RDA for 
key nutrients and calories for breakfasts would be added to 
Sec. 220.8(c). These additional charts are necessary as the traditional 
food-based menu planning alternative follows different age/grade 
groupings than used for the NSMP, ANSMP, and enhanced food-based menu 
planning alternatives.
    The Department recognizes the importance of offering meals that 
provide a proportionate share of the nutritional needs of the nation's 
schoolchildren, and that determination of whether those needs are being 
met must be based on the most accurate data available. To this end, the 
Department has calculated the RDA for each age group using computer 
software specifically designed for this purpose. In creating the 
enhanced food-based menu planning alternative, the Department developed 
age/grade groupings that were averaged to more precisely meet the 
calorie and nutrient levels at each age or stage of development. 
Uniform groupings, based as closely as possible on the actual 
nutritional needs of the various ages, for the two food-based systems 
would be preferable. However, section 9(f)(4)(A)(i) of the NSLA 
requires the availability of the traditional meal pattern as it existed 
in the 1994-1995 school year. The Department, therefore, does not want 
to add complexity to the traditional approach by proposing to make more 
precise age/grade groupings apply to both food-based menu planning 
alternatives. While this means menu planners using the traditional meal 
pattern may continue to meet a single set of quantity requirements for 
all children in the school, regardless of their age or grade, the 
Department is concerned that this practice could undermine the 
nutrition goals of the programs, since the food service would not be as 
responsive to respond to the varying needs of children of different 
ages. The Department recognizes the need to provide the traditional 
approach without additional requirements but is also concerned with the 
need to meet the appropriate nutrition standards. Therefore, interested 
parties in the food service, nutrition and scientific communities may 
wish to comment on the appropriateness of allowing a single age/grade 
grouping and the associated nutrition standards.

``Any Reasonable Approach''

    Public Law 104-149 amended section 9(f)(4) of the NSLA to permit 
school food authorities to use ``any reasonable approach'' to menu 
planning not specifically delineated in section 9(f)(3) and (4) of the 
NSLA. The law makes it clear, however, that ``reasonable approaches'' 
must meet guidelines established by the Secretary. In developing 
appropriate guidelines, the Department believes there will be two 
distinct classes of proposed alternative approaches. First, some 
proposed alternatives will consist of relatively minor modifications to 
one or another of the four existing menu planning systems. For this 
type of suggested alternative, the Department is proposing to allow 
State agencies to establish a general policy allowing school food 
authorities to adopt such approaches without prior Departmental 
approval. The second class of alternatives will involve unique 
proposals that depart significantly from existing systems. The 
Department is proposing to redesignate Sec. 210.10(l) through (o) as 
Sec. 210.10(m) through (p) and to add a new Sec. 210.10(l) to establish 
basic requirements for authorizing both classes of alternate menu 
planning approaches. For the SBP, Sec. 220.8(h) through (m) would be 
redesignated as Sec. 220.8(i) through (n) and Sec. 220.8(h) would 
provide for alternate menu planning approaches.

Minor ``Pre-Approved'' Modifications

    The first proposed class of alternate approaches is specific, minor 
modifications to provisions of the existing menu planning alternatives 
and would be added at Sec. 210.10(l)(1) and Sec. 220.8(h)(1). While the 
State agency may require prior approval or may establish additional 
guidelines for their adoption, these modifications would be considered 
``pre-approved'' in that State agencies may allow their use without any 
additional review. Of course, as part of their general oversight 
responsibilities under the NSLA, State agencies must ensure that the 
school food authority's operations, including these ``pre-approved'' 
options, are consistent with the NSLP and SBP regulatory standards, 
even if State agencies do not require pre-approval. The modifications 
are: a weekly meat/meat alternate standard (for the NSLP only) and 
flexible age/grade groupings for the food-based menu planning 
alternatives (for both the NSLP and SBP). While only two modifications 
are proposed, the Department solicits suggestions on similar variations 
that could be included under this category of other approaches.
    The Department was also asked to consider extending a policy 
currently applicable only to lunches planned under the enhanced food-
based menu planning approach to the traditional food-based menu 
planning approach. This policy, at Sec. 210.10(k)(2), allows menu 
planners to credit up to one grain-based dessert daily towards the 
weekly grain/bread requirements. This policy was established to provide 
additional flexibility for menu planners as the number of required 
grain/bread items increased substantially over the number required for 
the traditional food-based menu planning approach. For example, for 
grades 7-12, the traditional food-based alternative required eight 
servings (but recommended 10) while 15 servings are required for the 
enhanced food-based approach.
    The Department gave this suggestion serious consideration. However, 
crediting up to one grain-based dessert daily as a serving of grains/
breads for the traditional food-based menu planning alternative is too 
significant a proportion of the total number of required grain/bread 
items. A child selecting a grains-based dessert on a daily basis would 
have the majority of their grains/breads component over the week met 
through the consumption of dessert. Given this concern, the Department 
is not proposing to extend this policy to the traditional food-based 
menu planning approach. However, the Department would appreciate 
comments on this issue.
1. Weekly Meat/Meat Alternate Quantity Standard
    Some food service directors have indicated that it is not always 
practical to offer the full daily minimum portion of the meat/meat 
alternate component required for the NSLP under the food-based menu 
planning alternatives. For example, a serving of less than the required 
four tablespoons of peanut butter or two ounces of cheese in a sandwich 
may produce a more

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appealing entree while the full amount required can lead to waste. To 
address this situation, those school food service directors have 
suggested that schools using either of the food-based menu planning 
systems be allowed the flexibility to vary the quantity of meat/meat 
alternate on a daily basis as long as the total amount served over the 
course of the school week equals the minimum daily quantity multiplied 
by the number of serving days in the week. For example, the amount of 
meat/meat alternate served on a given day could be only one ounce or 
the equivalent provided that the full 10 ounces (for grades 4-12) or 
equivalent of meat/meat alternate were available over a five day week. 
This alternative would enable meal planners using a food-based 
alternative much of the same flexibility enjoyed by their counterparts 
using NSMP while still ensuring that minimum quantities of essential 
foods were offered to children over a week's time.
    After considering this suggestion, the Department agrees that it 
could provide additional flexibility without compromising the 
nutritional integrity of the meals served over the course of the school 
week. However, the Department does not believe that the school food 
authority's ability to vary the quantity of this component should be 
completely unrestricted. Therefore, the Department is proposing to 
require that a minimum of one ounce or its equivalent of meat/meat 
alternate be offered daily. This proposal would ensure that the amount 
of meat/meat alternate offered to the student will be reasonably 
consistent each day while still providing menu planners with enhanced 
flexibility. The Department emphasizes that the option to vary the size 
of the meat component would not apply to those situations in which the 
minimum quantity requirement is one ounce or less.
    The Department is not proposing to extend this option to the meat/
meat alternate-grains/breads component of school breakfasts because 
flexibility is already provided under the food-based menu planning 
alternatives. However, comments are requested on whether extending the 
weekly meat/meat alternate to the SBP would be useful and appropriate.
    In proposing this option, the Department recognizes that there will 
be complexities with its implementation, especially in schools that 
offer multiple entree choices, since children may not select items over 
the week that equal the full weekly meal component requirement. 
Therefore, comments are particularly requested on these and other 
potential difficulties as well as any suggestions on ways to ensure 
that the nutritional integrity of the meal service is not compromised. 
The modification for the meat/meat alternate component is proposed at 
Sec. 210.10(l)(1)(i).
2. Flexible Age-Grade Groupings for Food-Based Alternatives
    Children enrolled in a given school may span different age/grade 
groupings for purposes of the nutrient and calorie level requirements 
and corresponding portion sizes for components under the food-based 
menu planning alternatives. Under the NSMP and ANSMP menu planning 
alternatives, if only one age or grade is outside the established 
nutrient and calorie level requirements for the majority of children, 
schools are permitted, under Sec. 210.10(i)(1)(ii) and 
Sec. 220.8(e)(1)(ii), to use the nutrition standards for that majority. 
In the interests of consistency and flexibility, the Department is 
proposing to extend this option to the food-based alternatives as well.
    Under the proposal, schools using the enhanced food-based 
alternatives would be permitted to plan menus using the minimum 
quantity requirements applicable to the majority of children provided 
that no more than one age or grade falls outside the requirements for 
the majority of children. For example, if a school following the 
enhanced food-based menu planning alternative serves children in grades 
6, 7 and 8, the school may, if it chooses, plan menus meeting the 
nutrient levels and quantities for grades 7 through 12 in lieu of 
varying the menus and portion sizes for the children in grade 6. This 
option would eliminate the need to meet two sets of nutrient and 
calorie levels as well as portion requirements when only a limited 
number of children are affected. The Department notes that this option 
will generally be applicable to schools using the enhanced food-based 
alternative since it is not needed for the traditional food-based menu 
planning alternative because of the broader range of the groups and 
because schools may use the portion sizes for the grades 4-12 group 
when the school has a large number of grades. However, under the 
proposal, this option could be adopted by schools using either food-
based menu planning alternative. This proposed change would be found at 
Sec. 210.10(l)(1)(ii) for the lunch program and at Sec. 220.8(h)(1) for 
the breakfast program.
    The Department believes that school food authorities should plan 
menus and offer meals that best meet the nutrient and calorie levels 
for each age or grade group of all of the children. The age/grade 
groupings are geared to best meet the recommended levels of calories 
and other nutrients for a particular period in a child's development. 
However, the Department also recognizes that allowing the proposed 
option for schools using the food-based alternatives provides increased 
flexibility.

Major Changes or New Alternatives

    The second class of alternate approaches concerns major changes to 
one of the existing menu planning systems and may be developed by 
either school food authorities or State agencies. Within this second 
class, the regulations, as proposed, would require that any major 
change or new alternative developed by a school food authority be 
subject to State agency review and approval. State agency approval is 
critical because major variations developed and used only by a school 
food authority need to be carefully assessed to gauge potential impact 
on the delivery of meals to children, both nutritionally and fiscally. 
Further, school food authority-level approaches would not have the 
benefit of the State agency's expertise when forming their approach. 
State agency-developed alternatives would be subject to Departmental 
review and approval unless there was an on-going State agency/school 
food authority partnership and enough school food authorities intending 
to adopt the alternate approach to warrant the significant involvement 
of the State agency.

Written Submissions

    The Department is proposing that any alternate approach developed 
by either a school food authority or State agency be committed to 
writing prior to its implementation. The written description must 
outline the intended procedures as well as indicate how the required 
elements for alternate approaches (as proposed under Sec. 210.10(l)(3) 
and Sec. 220.8(h)(3) for the lunch and breakfast programs, 
respectively) will be met. For those approaches subject to prior 
review, a written submission is needed to ensure a comprehensive 
review. For those approaches not subject to prior review, a written 
description needs to be available for monitoring purposes. The 
Department is not, however, proposing any specific format or requiring 
a formal plan, other than proposing that the intended procedures and 
the required elements be addressed in writing for any proposed 
alternative approach. This

[[Page 27168]]

provision is proposed at Sec. 210.10(l)(2) and Sec. 220.8(h)(2).

State Agency-Developed Systems: Approval Procedures

    Some State agencies have developed or intend to develop their own 
menu planning alternatives for use by their school food authorities. 
State agency-developed alternatives could involve either extensive 
modifications to one of the existing menu planning alternatives or 
development of an altogether new alternative. As mentioned above, the 
Department is proposing different approval procedures for State agency-
developed approaches depending on whether there is on-going, 
operational support from the State agency.
    For the purpose of approval, the first type of a State-agency 
developed alternate approach is one that the State agency develops and 
then makes available to its school food authorities without on-going 
support and assistance. Because the State agency will not have any on-
going operational role in such approaches, the Department believes 
independent review is essential prior to implementation of an alternate 
approach by any school food authority. This review would ensure that 
the changes or the new alternative adequately meets program 
requirements and goals. Therefore, the Department is proposing to 
require State agencies to submit this type of alternate approach to the 
Food and Nutrition Service (FNS) for review and approval before 
implementation. The approval procedures are proposed at 
Sec. 210.10(l)(2) and Sec. 220.8(h)(2), respectively, for the lunch and 
breakfast programs.
    The second type of alternate approach would also involve either 
extensive modifications to one of the existing menu planning 
alternatives or development of an altogether new alternative. The 
Department is proposing that these approaches not be subject to 
approval by FNS when the State agency is an active and on-going partner 
with the school food authorities, if there are a sufficient number of 
school food authorities adopting it to warrant the State agency's 
commitment of resources necessary to its successful operation and the 
State agency issues an announcement notifying the public of the 
alternate approach. With the State agency's active involvement, there 
is oversight as well as the ability to promptly adjust the policies and 
procedures of the approach to ensure efficient and effective operation 
and compliance with all applicable requirements. The Department is 
proposing that these approaches must be adopted by at least five school 
food authorities within the State. The proposed requirement for a 
public announcement allows for review of the State agency's approach by 
any concerned parents, students, program administrators, etc. In 
addition to the public announcement, the Department considered 
requiring that State agencies hold public hearings (in accordance with 
established State procedures) on these types of alternative approaches. 
The Department would appreciate comments on whether public hearings, in 
addition to the public announcement, are a more effective way to notify 
the public and whether the benefits of conducting a hearing outweigh 
the costs to the State agency.
    This type of State agency-developed alternate approach is intended 
to allow innovative, large-scale State agency-sponsored menu planning 
systems to operate without prior approval. An example of a large-scale 
system that extensively modifies current regulatory requirements 
(specifically the weighting component and software requirements for 
NSMP) is the Shaping Health as Partners in Education (SHAPE) program, 
which has been successfully operated in California for several years. 
Because the SHAPE program is already operational, the requirement for 
issuing a public announcement is not applicable.
    The Department emphasizes that the different approval requirements 
for the State agency-developed alternate approaches are based on the 
differing degrees of State agency involvement. When the State agency is 
acting as a partner and is routinely assisting school food authorities 
and providing technical assistance, it can, if needed, quickly 
determine if implementation at the local level is not successful or if 
the system itself needs to be modified to meet the required elements 
such as compliance with the nutrition standards. In the other 
situations, there is no continuous State agency presence. Instead, the 
State agency simply makes the system available to local school food 
authorities as another option from which they may chose and would only 
be able judge its effectiveness under normal review procedures. 
Therefore, the Department is proposing, at Sec. 210.10(l)(2)(iii) and 
Sec. 220.8(h)(2)(iii), that any State-agency developed system is not 
subject to prior FNS approval if five or more school food authorities 
adopt the approach, if the State agency maintains on-going oversight 
including making adjustments to the approach's policies and procedures, 
as needed, to ensure compliance with the nutritional and other meal 
service requirements, and if the State agency makes a public 
announcement concerning the alternate menu planning approach prior to 
its implementation by any school food authority. Please keep in mind, 
though, that all alternate approaches would be subject to the proposed 
minimum requirements discussed below.

Required Elements for Alternate Approaches

    In devising the guidelines for reasonable approaches other than the 
proposed ``pre-approved'' modifications, the Department balanced the 
necessity to foster innovation and flexibility with the equally 
compelling need to maintain program accountability administratively, 
fiscally and nutritionally. The basic consideration is that every menu 
planning alternative, regardless of the source or the level of 
approval, must meet all statutory requirements. Also, the Department is 
proposing to include a limited number of guidelines that are based on 
discretionary regulatory procedures that the Department feels are 
essential to effective and efficient program management unless the 
alternate approach is one of the distinct situations with on-going 
State involvement (the second type discussed above). With this extra 
involvement and oversight by the State agency, school food authorities 
would be provided additional flexibility.

Offering Fluid Milk

    Section 9(a)(2) of the NSLA (42 U.S.C. 1758(a)(2)) requires that 
school food authorities offer fluid milk to children participating in 
the NSLP. Section 4(e)(1)(A) of the Child Nutrition Act of 1966 (CNA), 
(42 U.S.C. 1773 (e)(2)), requires that a combination of foods be served 
in the SBP and that breakfasts ``* * * meet minimum nutritional 
requirements prescribed by the Secretary * * *'' The provision of fluid 
milk is one of the minimum nutritional requirements established for the 
SBP under Sec. 220.8(h). Therefore, any alternate menu planning 
approach must also offer fluid milk for both the NSLP and SBP. The 
provisions requiring milk to be offered in the school programs for any 
alternate approach are proposed at Sec. 210.10(l)(3)(i) and 
Sec. 220.8(h)(3)(i), for the NSLP and SBP, respectively.

Offer Versus Serve (OVS)

    Section 9(a)(3) of the NSLA (42 U.S. C. 1758(a)(3)) requires that 
schools implement OVS in the NSLP for senior high school children; at 
local option, school food authorities may adopt OVS in the lunch 
program for lower grades as well. Under section 4(e)(2) of the CNA (42 
U.S. C. 1773 (e)(2)), local

[[Page 27169]]

school food authorities may also implement OVS for the SBP. OVS 
encourages children to make selections that they prefer, thus helping 
to reduce plate waste. Because of the statutory mandate, any menu 
planning alternative designed by an school food authority or State 
agency for use in the NSLP must include OVS for senior high school 
children. OVS will continue to be optional at the discretion of school 
food authorities in the SBP.
    While OVS would continue to be required for senior high school 
students, school food authorities and State agencies would be permitted 
by this rulemaking to propose alternatives to the OVS approaches 
currently permitted in the regulations. Such approaches must be based 
on the existing regulatory OVS structures as much as possible. For 
example, OVS for alternate food-based systems must be patterned on the 
OVS requirements in Sec. 210.10(k)(6) and Sec. 220.8(g)(3), while those 
for alternate NSMP approaches must be based on the requirements of 
Sec. 210.10(i)(2)(ii) and Sec. 220.8(e)(2)(ii).
    If the existing OVS procedures in Sec. 210.10(k)(6)/
Sec. 220.8(g)(3) or Sec. 210.10(i)(2)(ii)/Sec. 220.8(e)(2)(ii) are not 
followed, the description of the alternate approach must indicate what 
age/grade groups are included, how plate waste would be reduced and how 
the meal, as taken, will provide a reasonable level of nutrients and 
calories. As discussed in more detail below, any modifications to the 
existing OVS procedures must include the number and type of items (and, 
if applicable, the quantities for the items) that constitute a 
reimbursable meal. These provisions on OVS in alternate menu planning 
approaches are proposed at Sec. 210.10(l)(3)(ii) and 
Sec. 220.8(h)(3)(vi) for the lunch and breakfast programs, 
respectively.

Nutrition Standards

    As discussed earlier, the NSLA requires school lunches to 
approximate, over a week's time, one-third of the RDA needed by growing 
children of different ages. School breakfasts must provide one-fourth 
of the RDA. In addition, the menus must comply with the recommendations 
of the Dietary Guidelines. These requirements cannot be modified.
    Therefore, any alternate menu planning approach must ensure that 
these standards, as implemented in Sec. 210.10(b)(1)-(b)(4) for the 
NSLP and Sec. 220.8(a)(1)-(a)(4) for the SBP, would be met or exceeded 
for the age/grade groups to be served. In addition, the alternate 
approach must indicate how the proposal is designed to meet these 
standards. The requirements are proposed at Sec. 210.10(l)(3)(iii) and 
Sec. 220.8(h)(3)(ii).

Competitive Foods

    For both the NSLP and SBP, Section 10(a) of the CNA (42 U.S.C. 
1779(a)), requires regulations ``* * * relating to the service of food 
* * * in competition with the [school meals] programs * * *.'' To 
implement this provision, Sec. 210.11(b) and Sec. 220.12(a) prohibit 
the sale of foods of ``minimal nutritional value'' in the cafeteria 
area during the service of meals. Appendix B to each of these parts 
lists the foods considered to be foods of minimal nutritional value. 
Any alternate approach may not alter this statutory provision and the 
implementing regulations. This restriction is proposed at 
Sec. 210.10(l)(3)(iv) and Sec. 220.8(h)(3)(iii) for the lunch and 
breakfast programs, respectively.

Crediting Foods Under Food-Based Type Approaches

    Paragraphs (k)(3)-(k)(5) and (m) of Sec. 210.10; Sec. 220.8(g)(2) 
and (i); and the Appendices to Parts 210 and 220 provide the basic 
crediting policies for food items offered in the school meals programs 
for food-based menu planning alternatives. These crediting policies are 
expanded upon in FNS instructions and guidance. This proposal would 
require that any alternate food-based menu planning approaches follow 
the existing food crediting policies for school meals. The Department's 
standards for crediting food items are designed to maintain the 
nutritional integrity of school meals by ensuring that foods used to 
satisfy quantity and component requirements provide a sufficient amount 
of the component or its equivalent to count toward meeting the meal 
requirements.
    To be credited, foods must be both present in the minimum required 
quantities and identifiable as at least one of the required food 
components of the meal pattern (meat/meat alternate, fruits/vegetables, 
grains/breads and fluid milk). These foods may be served as single food 
items or as combinations in recipes or in commercially processed foods. 
To assist in the identification of the definition of the basic foods, 
the Department relies on government and industry standards of identity 
and/or specifications. These standards are essential to ensuring that 
the individual meal merits Federal reimbursement and that the meal 
service, over time, complies with the programs' nutrition standards. 
Therefore, the Department is proposing at Sec. 210.10(l)(3)(v) and 
Sec. 220.8(h)(3)(v) that the minimum quantities established to credit 
food items as components under the food-based menu planning systems be 
adhered to in any food-based menu planning alternate approach.

Identification of a Reimbursable Meal

    The concept of a reimbursable meal is essential to program 
integrity. Sections 210.10 and 220.8 of the regulations establish 
definitions of a reimbursable meal for the four menu planning 
alternatives currently recognized by the NSLA. Under the traditional 
meal pattern and the enhanced food-based menu planning system for 
lunches, the school food authority must offer minimum quantities of a 
meat/meat alternate, a grain/bread item, two separate fruits/vegetables 
and fluid milk as a beverage. This requirement is found at 
Sec. 210.10(k). Under NSMP and ANSMP, the school must offer an entree, 
fluid milk and at least one additional menu item for lunches. This 
requirement is found at Sec. 210.10(i)(2)(i) for the NSLP. The parallel 
requirements for the SBP are at Sec. 220.8 (e) and (g).
    This proposal would require that any alternate approach comply with 
the current requirements for reimbursable meals to the extent possible. 
When the existing procedures are not followed, the proposed alternate 
approach must detail what constitutes a reimbursable meal, including 
the number and type of item (and if applicable, the quantities for each 
item) and how a reimbursable meal is to be identified at the point of 
service by the children, the cashiers, and any reviewers. The proposals 
appear at Sec. 210.10(l)(3)(vi) and Sec. 220.8(h)(3)(v), respectively, 
for the school lunch and breakfast programs.

Monitoring Compliance

    Section 210.18 of the regulations establishes methods for 
determining if school food authorities are meeting the administrative 
requirements for the school meals programs while Sec. 210.19 provides 
for reviewing compliance with the nutrition standards. In determining 
the essential elements for any alternate approach, the Department 
believes that these monitoring aspects must be incorporated so that the 
State agency can determine if reimbursable meals are being offered, 
accepted, and properly counted and if the meal service is in compliance 
with all of the nutrition and administrative standards.
    The Department expects that, in most cases, alternate approaches 
can be monitored within the existing criteria for both coordinated 
review effort (CRE) and nutrition reviews. As discussed below, some 
aspects of Performance Standard 2 in Sec. 210.18 must be modified

[[Page 27170]]

to take into account the flexibility for alternate approaches. However, 
the Department does not believe that the procedures for conducting CRE 
reviews will need to be revised in order to accommodate alternate 
approaches. Therefore, this rule would require, in Sec. 210.10(l)(vii) 
and Sec. 220.8(h)(3)(vi), that the alternate approach be subject to CRE 
reviews under the current procedures provided in Sec. 210.18.
    However, in some cases, the proposed alternate approach may not 
lend itself to the established nutrition review methods. Therefore, to 
allow the State agency to ensure that an alternate approach can be 
reviewed adequately for compliance with the nutrition standards, any 
alternate approach must include either an explanation of how the 
alternate approach could be monitored within the existing criteria in 
Sec. 210.19 or a comprehensive nutrition monitoring plan that the State 
agency could follow. As part of this plan, the alternate approach must 
include a description of the records it will maintain to document 
compliance with administrative and nutrition requirements. This 
provision is proposed at Sec. 210.10(l)(3)(vii) and 
Sec. 220.8(h)(3)(vi) for both the administrative and nutrition review 
aspects. Conforming amendments are also proposed to Sec. 210.19(a) and 
are discussed in greater detail later in this preamble.

Weighted Averages for NSMP/ANSMP

    Sections 210.10(i)(5) and 220.8(e)(5) require school food 
authorities using NSMP or ANSMP to conduct nutrition analyses by 
weighting all foods planned as part of the reimbursable meal service. 
This weighting is done according to the frequency with which each food 
is actually offered. The purpose of weighting is to assist in ensuring 
that meals actually offered to children meet the nutrition standards. 
The Department acknowledges that weighted averages are not the only way 
to ensure compliance with the nutrition standards. In fact, in order to 
make the transition to the updated menu planning methods easier and to 
ensure that every avenue for promoting sound nutrition is explored, the 
Department has authorized temporary waivers of this regulatory 
requirement. The waivers allow the Department the opportunity to 
evaluate weighted and unweighted averages to determine their accuracy 
in indicating determinations of compliance with the nutrition 
standards. The Department believes that this temporary postponement 
through a State agency waiver is the appropriate way to ease 
implementation and to permit further evaluation of this requirement. As 
part of this evaluation process, the Department is particularly 
interested in receiving comments on the use of a weighted nutrient 
analysis versus nonweighted approaches. Comments from operators using 
nutrient analysis and their experiences with weighting would be 
especially helpful. The Department would also like comments from State 
agency reviewers and their experiences with weighting when evaluating 
meal services.
    However, until the Department determines that alternatives to 
weighted averages adequately ensure that meals comply with the 
nutrition standards, weighted averages continue to be required for NSMP 
systems other than those for which a waiver has been granted. 
Accordingly, the Department is proposing to require compliance with the 
weighting requirements for alternate NSMP-type approaches. However, the 
Department is proposing to provide added flexibility in those instances 
in which the State agency has developed the alternate approach and is a 
partner with at least five school food authorities and maintains on-
going oversight of the operation and evaluation. The level and 
consistency of the State agency's involvement coupled with a more rapid 
response to problems in order to make needed adjustments allows for 
further innovation. These provisions are proposed at 
Sec. 210.10(l)(3)(viii) and Sec. 220.8(h)(3)(vi).

Approved Software for NSMP and ANSMP

    Sections 210.10(i)(4) and 220.8(e)(4) require menu planners using 
NSMP or ANSMP to conduct or to have their analyses conducted using 
software that incorporates the National Nutrient Database for Child 
Nutrition Programs and is approved by FNS. The software must meet the 
minimum requirements established by FNS such as having the capability 
to perform all functions required after the basic data has been 
entered, including calculating weighted averages, and the optional 
combining of the analyses of the NSLP and SBP. The Department is aware 
that there are many nutrition software packages available; however, 
many of these are for individuals or for clinical settings such as 
hospitals. The software approved by FNS is designed to meet the needs 
of school food service professionals and fulfills two essential 
criteria--the ability to perform all the requirements of the 
regulations and the achievement of uniform results. The Department also 
notes that the number and variety of software packages approved to date 
ensures that school food authorities have extensive flexibility in 
choosing a package that best meets their individual needs. Therefore, 
this proposal would require, at Sec. 210.10(l)(3)(viii) and 
Sec. 220.8(h)(3)(vii), that any alternate approach use approved 
software.
    Again, however, the Department is proposing to allow modification 
of the required specifications for software for any alternate approach 
under the same limited circumstances allowing for modification of 
weighted analysis. In those situations in which the State agency 
developed the alternate approach and remains an active partner and five 
or more school food authorities adopt the alternate approach, the 
Department is proposing, at Sec. 210.10(l)(3)(viii) and 
Sec. 220.8(h)(3)(vii), to permit the use of software which does not 
meet the regulatory requirements. While this means that the software 
would not need to incorporate the National Nutrient Database nor would 
it be required to have prior FNS approval, the alternate approach would 
still need to meet all the nutrition standards. Again, the Department 
believes that the on-going State agency oversight provides sufficient 
assurance that any software will provide appropriate nutrient analysis 
and, to the extent that deficiencies are identified, that they will be 
rapidly addressed.
    The Department also wishes to emphasize that weighted analyses and 
standard software packages do not, in and of themselves, determine the 
kinds and amounts of foods provided. Rather, they are fundamentals in 
the internal monitoring system which enables schools, school food 
authorities, and State agencies to measure the success of the food 
service in complying with the nutrition standards. Consequently, 
modification of these requirements, without substantial care and 
involvement by the State agency, may undermine the accuracy of the 
nutrition analysis and compromise the ability of menu planners to make 
necessary adjustments. This is the basis for the Department's decision 
to not apply the weighting and software specification requirements to 
those situations in which there will be substantial State agency 
involvement and oversight.

Monitoring Requirements for Compliance With the Nutrition Standards

    The Department is proposing to clarify some aspects of the 
nutrition monitoring requirements in order to ensure appropriate State 
agency oversight of all menu planning alternatives. In addition, some 
conforming amendments are proposed due to the reinstatement of the

[[Page 27171]]

traditional food-based menu planning alternative and the availability 
of alternate approaches.

Monitoring Procedures for the Traditional System and for Alternate 
Approaches

    The current monitoring provisions for the food-based and nutrient 
standard menu planning alternatives are found at Sec. 210.18 and 
Sec. 210.19. As discussed earlier, any alternate approach must be 
capable of being monitored under Sec. 210.18. In addition, if the 
alternate approach cannot be monitored under Sec. 210.19, there must be 
a description of alternate monitoring procedures to ensure compliance 
with the fiscal, administrative and nutrition standards.
    This proposed rule would amend Sec. 210.18 and Sec. 210.19 to make 
clear that the existing monitoring requirements apply to the 
traditional food-based menu planning alternative as well as to the 
enhanced food-based and nutrient standard menu planning systems. In 
addition, technical amendments are made to modify the terminology in 
Sec. 210.18 and Sec. 210.19 related to Performance Standard 2 which 
establishes review criteria to assure that the lunches served by 
schools are reimbursable. In other words, any school lunch must contain 
whatever meal elements that are required for reimbursable lunches under 
each of the menu planning alternatives. In order to clarify that all 
the various menu planning approaches are subject to Performance 
Standard 2, technical amendments are proposed to Sec. 210.18(b)(2)(ii), 
(g)(2), and (i)(3)(ii) and to Sec. 210.19(c)(6)(i) to reference the 
various terms used to stipulate the elements in a reimbursable meal.
    Finally, Sec. 210.19 would be amended to make clear that the 
nutrition review procedures for food-based and nutrient standard 
alternate approaches are the same as those for food-based and nutrient 
standard menu planning systems, respectively, except for those 
alternate approaches that do not lend themselves to existing nutrition 
review procedures. In those cases, the nutrition review procedures are 
those review procedures developed under Sec. 210.10(l).

Adjustments to Review Periods

    The Department is proposing to adjust the review period for 
nutrition reviews. Currently, paragraphs (a)(1)(i) and (ii) of 
Sec. 210.19 stipulate that the State agency is to review the school's 
nutrition analysis or conduct an independent analysis for the last 
completed week prior to the review. The intent of this provision was to 
ensure that the analysis reflected the current state of the meal 
service. However, some State agencies have noted that, under CRE, as 
detailed in Sec. 210.18, State agencies select the month prior to the 
month of the review as the sample period. Consequently, State agencies 
which would elect to conduct nutrition reviews concurrently with CRE 
reviews will likely need to look at two different review periods during 
the same visit. Therefore, in the interests of efficiency, this 
proposal would permit reviewers to conduct the assessment of compliance 
with nutrition standards for any week of the current school year prior 
to the month of the review. However, the week selected must continue to 
represent the current state of the meal service. The State agency could 
select, for example, a week for the nutrition review that was in the 
same month in which a CRE was scheduled. The Department believes that 
this proposed provision will still allow State agencies to determine 
whether the program is in compliance with the nutrition standards and, 
if necessary, prescribe appropriate steps for improvements by requiring 
review of a relatively current period that is typical of the on-going 
meal service. This change is proposed at Sec. 210.19(a)(1)(i).

Extent of Reviews

    Another proposal would amend Sec. 210.19(a) to clarify that, during 
the review cycle, State agencies must review at least one school for 
each type of menu planning alternative used by the school food 
authority. For example, if eight schools in a school food authority use 
the traditional meal pattern, three use the enhanced food-based system 
and five use NSMP, the State would select at least one school from each 
category. The Department recognizes that, in some cases, this 
requirement would result in more schools being visited for nutrition 
compliance than are required to be reviewed under CRE. The Department 
believes, however, that this coverage is essential to ensure that the 
school food authority is following all alternatives correctly. For 
example, a school food authority may be achieving great success with 
the enhanced food-based system but may not be conducting NSMP properly. 
The only way for the State agency to identify this problem, provide 
appropriate technical assistance and require corrective action is to 
examine the school food authority's experience with all alternatives in 
use. This amended is proposed at Sec. 210.19(a)(1).
    The proposal would also clarify that State agencies are required to 
perform the necessary nutrition review on only the lunch program unless 
the school food authority uses a particular menu planning alternative 
only for the breakfast program. For example, if all of the schools in a 
school food authority use either NSMP or the enhanced food-based system 
for lunch, and at least some of the schools use the traditional food-
based menu planning alternative for breakfast, the State agency would 
need to conduct two lunch reviews (one of a school using NSMP and one 
of a school using the enhanced food-based system) and one review of a 
breakfast program which uses the traditional meal pattern. However, if 
all three of these alternatives are used for the lunch program in the 
school food authority, no review of the breakfast program would be 
needed. The Department cautions, however, that if the lunch review 
indicates that the school food authority needs technical assistance 
and/or corrective action, the State agency may wish to review a 
breakfast program as well to determine if the school food authority 
needs to take specific corrective action for that program as well. In 
these cases, the review of the breakfast program could be done either 
at the time of the initial lunch review or as part of any follow-up 
needed to further evaluate the results of technical assistance or 
corrective action.

Conforming Review Cycles

    Finally, the Department is proposing a minor technical amendment to 
Sec. 210.19(a)(1)(i) to make the cycle for nutrition reviews consistent 
with the cycle for administrative reviews under CRE. The SMI rule 
established a five-year cycle for reviews of nutrition compliance and 
intended that cycle to run concurrently with the CRE cycle so that 
those States electing to conduct nutrition reviews at the same time as 
administrative reviews could do so efficiently. The regulation 
currently stipulates that the first five-year cycle would begin on July 
1, 1996, unless the State agency authorized a temporary waiver of 
compliance with the nutrition standards, in which case the first year 
of the cycle could begin as late as July 1, 1998. Consequently, the 
first five-year cycle would end as early as June 30, 2001 or as late as 
June 30, 2003, depending upon actual implementation. The current CRE 
cycle ends on June 30, 1998, however, and the next cycle will end on 
June 30, 2003. Therefore, the two review cycles would be out of 
sequence for State agencies which implement the regulations before 
School Year 1998/1999.
    While State agencies are not required to conduct nutrition reviews 
at the same time as administrative reviews, the Department proposes to 
make the two

[[Page 27172]]

review cycles coincide so that State agencies may avail themselves of 
this option efficiently. To achieve this goal, therefore, the 
Department is proposing to establish an initial cycle of seven years 
for nutrition reviews, from July 1, 1996 through June 30, 2003. 
Thereafter, review cycles would be five years in length. This expanded 
cycle would allow State agencies more flexibility during the 
implementation phase to complete reviews and provide schools with 
necessary assistance.
    The Department notes that the extended time frame for completing 
nutrition reviews increases the need for State agencies to identify 
school food authorities that may have menu planning difficulties in 
order to schedule visits to them as early as possible in the cycle. The 
Department also would like State agencies to comment on any increased 
potential for noncompliance that might result from this extension and 
whether or not the Department should consider establishing intermediate 
review goals within the cycle.

Updating the Dietary Guidelines and Other Technical Changes

    Section 9(f)(1)(A) of the NSLA requires that schools offer meals 
consistent with the goals of the ``most recent Dietary Guidelines for 
Americans.'' The June 13, 1995, SMI rulemaking incorporated the 1990 
edition of the Dietary Guidelines as program requirements because they 
were, at that time, the latest official version. The Department 
indicated, however, that later editions would be incorporated to 
reflect any revisions to the recommendations. In December 1995, the 
Department, in partnership with the Department of Health and Human 
Services, issued the 1995 edition. While there were no substantive 
differences between the 1995 edition and the 1990 edition, there were 
some minor language revisions. Therefore, the Department is taking this 
opportunity to propose amending Sec. 210.10(b)(3) and Sec. 220.8(a)(3) 
to incorporate the minor wording changes of the 1995 guidelines, and to 
change references to the 1990 guidelines to 1995.
    The 1995 Dietary Guidelines also include the suggestion that the 
diets of children between the ages of two and five should be gradually 
altered so that, by age five, they receive no more than 30 percent of 
their calories from fat. Since the Dietary Guidelines do not treat this 
suggestion as a formal recommendation, the Department is not 
incorporating it into Sec. 210.10(b)(3) or Sec. 220.8(a)(3), where the 
Dietary Guidelines' recommendations are enumerated. However, a footnote 
containing this information would be added to the charts in 
Sec. 210.10(c)(1), Sec. 210.10(c)(2), Sec. 210.10(d), Sec. 220.8(b)(1), 
Sec. 220.8(b)(2) and Sec. 220.8(c)(1). The Department is also aware 
that the RDA are in the process of being reviewed and that an update is 
scheduled to be released in 1999. At that time, the Department will 
propose any needed revisions to the key nutrient and calorie levels.
    The name of the database used in the nutrient analysis software has 
been changed from the ``National Nutrient Database for the Child 
Nutrition Programs'' to the ``Child Nutrition Database.'' This proposal 
would, therefore, update the references to the database in 
Sec. 210.10(i) and Sec. 220.8(e).
    It was brought to the Department's attention that there was a 
misstatement in the preamble of the final regulation published on June 
13, 1995. The regulation, Child Nutrition Programs: School Meal 
Initiatives for Healthy Children, was published in the Federal Register 
at 60 FR 31188. The erroneous statement at 60 FR 31203 was:

    * * * program regulations (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.

    The correct policy is contained in Sec. 210.11(b) for the NSLP. The 
correct policy is:

    Such rules or regulations [established by State agencies or 
school food authorities] shall prohibit the sale of foods of minimal 
nutritional value, as listed appendix B of this part, in the food 
service areas during the lunch periods.

(Emphasis added)

This policy may found for the SBP at Sec. 220.12(a).
    Although the statement in the preamble was incorrect, the actual 
regulatory language contained in Sec. 210.11 (b) was correct. The 
Department regrets any confusion this error may have caused.

Appendix to Preamble--Regulatory Cost/Benefit Assessment

    1. Title: National School Lunch Program and School Breakfast 
Program: Additional Menu Planning Alternatives.
    2. Background:
    a. Need for Action: Public Law 104-149, the Healthy Meals for 
Children Act, amended the National School Lunch Act by expanding the 
number of alternatives available to plan menus for the school meals 
programs. Section 9(f) of the National School Lunch Act was amended 
to allow schools to continue using the meal planning system in 
effect in School Year 1994-95 as well as the other meal planning 
alternatives already available. In addition, the Act was amended to 
allow schools to use ``* * * any reasonable approach, within 
guidelines established by the Secretary * * *''.
    The menu planning system in effect in School Year 1994-95 was 
the ``traditional pattern'' which has been in use for many years, 
and which requires four components (meat/meat alternate, breads/
grains, fruits/vegetables and milk) and five items. Because this 
alternative was to be deleted from the regulations at the end of the 
implementation period (July 1, 1998), this proposal would reinstate 
this alternative permanently. In addition, this proposal would 
establish the guidelines for ``any reasonable approach'' to ensure 
that schools continue to serve reimbursable meals and provide proper 
accountability for Federal reimbursement while still having the 
flexibility to design a menu planning alternative that meets their 
particular needs.
    Before the Department issued a proposal to implement Public Law 
104-149, Public Law 104-193, the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996 was enacted on August 22, 
1996. This law further amended the National School Lunch Act to 
mandate that school lunches provide, over a week, one-third of the 
Recommended Dietary Allowances (RDA) and that school breakfasts 
provide one-fourth of the RDA. These requirements are, however, 
already included in the school programs' regulations.
    b. Affected parties: The entities affected by this proposal are 
State agencies, school food authorities, the nation's school 
children, and the Food and Nutrition Service.
    c. Promotes the President's Priorities: This proposal would 
promote the President's commitment to flexibility for program 
administrators while continuing to support the objectives of 
providing meals to the nation's school children that meet the 
Dietary Guidelines for Americans and other established nutrition 
standards.
    3. Statutory Authority: Public Law 104-149.
    4. Cost-Benefit Assessment of Economic and Other Effects:

Reinstatement of the Traditional Meal Pattern

    Background: The proposed regulation would reinstate the meal 
pattern in effect in School Year 1994-1995 as one menu planning 
alternative. The meal pattern would be incorporated into the section 
of the regulation establishing the food-based menu planning 
alternatives and would be entitled the ``traditional food-based menu 
planning alternative.'' The food-based alternative implemented in 
the June 5, 1995, final rule would be renamed ``the enhanced food-
based menu planning alternative.'' The provision would provide a 
table with the minimum levels of nutrients (calories, protein, 
calcium, iron, Vitamin A, and Vitamin C) for the age/grade groups of 
the meal pattern. Further, the provision makes minor conforming 
amendments to allow for monitoring compliance with the nutrition 
standards for this additional menu planning alternative.

Effects of Reinstating the Traditional Meal Pattern

    Benefits: The provision permanently reinstating the meal pattern 
in effect during

[[Page 27173]]

School Year 1994-1995 will allow schools to use a meal pattern with 
which they are familiar. Extensive experience with the traditional 
meal pattern has allowed schools to successfully develop menus that 
meet program requirements and are popular with students. The 
reinstatement of the traditional meal pattern provides schools with 
an additional menu planning option and even greater flexibility in 
meeting the nutritional needs of students.
    The rule extends nutrition monitoring provisions pertaining to 
reviews of the enhanced food-based menu planning option to reviews 
of schools using the traditional meal pattern. School lunches are 
required to provide, over a week's time, one-third of the RDA for 
key nutrients (protein, calcium, iron, vitamin A and vitamin C) and 
calories needed by growing children of different ages. School 
breakfasts are required to provide, over a week's time, one-fourth 
of the RDA for key nutrients (protein, calcium, iron, vitamin A and 
vitamin C) and calories needed by growing children. In addition, 
schools should be making progress towards providing meals which 
comply with the Dietary Guidelines, including the recommendations 
that no more than 30 percent of calories come from fat and that 
saturated fat be limited to less than 10 percent of calories. The 
extension of this provision to the traditional food-based meal 
planning systems will ensure that children in schools using this 
system will receive meals of comparable nutritional quality as 
children in schools using the enhanced food-based menu plan. This 
provision does not require any additional burden of school food 
authorities as regulations require any menu planning system to 
provide comparable levels of RDAs for key nutrients and comply with 
the Dietary Guidelines.
    Costs: The 1993 USDA School Nutrition Dietary Assessment Study 
(SNDA) assessed the nutritional quality of lunches served under the 
traditional meal pattern. SNDA found that the amount of nutrients in 
the average school lunch provided under the traditional meal pattern 
exceeded the standard of one-third of the daily RDA for the age 
groups at the elementary, middle, and high school level for most 
nutrients. However, the average percentage of food energy from total 
fat offered in school lunches was 38 percent, compared with the 
Dietary Guideline goal of not more than 30 percent; the percentage 
from saturated fat was 15 percent, compared with the Dietary 
Guideline of less than 10 percent.\1\ In addition, the Continuing 
Survey of Food Intake by Individuals (CSFII), 1989-91 found that 
school-age children have average daily intakes of 33.7 to 34.7 
percent of calories from fat, and 12.6 to 13.3 percent of calories 
from saturated fat depending on age-sex group.
---------------------------------------------------------------------------

    \1\ Burghardt, JC, A. Gordon, N. Chapman, P. Gleason, T. Fraker 
(1993). The School Nutrition Dietary Assessment Study: School Food 
Service, Meals, and Dietary Intakes. October 1993.
---------------------------------------------------------------------------

    The SNDA and CSFII findings heightened awareness of the need to 
improve the nutritional quality of school meals. In response the 
Department initiated the School Meals Initiative for Healthy 
Children, the first program-wide reform of the school meals program 
since its establishment in 1946. Since the introduction of the 
School Meals Initiative the Department has provided training and 
technical assistance designed to assist school food service 
personnel in implementing the Dietary Guidelines. FNS has sponsored 
training on the preparation of healthier meals; provided recipes 
which are lower in fat and sodium; and issued grants to assist State 
agencies in establishing statewide training systems to assist local 
agencies in implementing the Dietary Guidelines. The Department has 
also increased efforts to provide lower fat commodities to local 
school districts.
    Even with increased efforts by the Department, State agencies 
and school food authorities to provide schools with the knowledge 
and skills necessary to successfully implement the Dietary 
Guidelines, the possibility still exists that it might prove 
difficult for some schools using the traditional food-based meal 
pattern to comply with the recommendations. In these instances, it 
may be necessary for the school food authority or the State agency 
to provide further training of the school food service personnel to 
enable them to successfully develop meal patterns which comply with 
the Dietary Guidelines.
    The State agency will be responsible for monitoring progress 
towards meeting the Dietary Guidelines and nutrition standards and 
for making adjustments in procedures that schools follow in order to 
ensure effective progress toward eventual compliance with the 
updated nutritional requirements. Should a number of schools using 
the traditional food-based menu pattern encounter difficulty in 
meeting the Dietary Guidelines, the State agency will need to 
cooperate with the school food authority in designing corrective 
action to rectify the deficiencies. Additionally, the State agency 
will need to monitor the execution of corrective action taken by the 
school food authority to ensure that progress is being made towards 
meeting the Dietary Guidelines.
    Since most State agencies used the1996-1997 school year to train 
staff to conduct the nutrient analyses, the number of analyses that 
were actually completed was fewer than expected. As a result, there 
is no data available on the number of school food authorities that 
fail to meet the nutrient standards and need to take corrective 
action.

Any Reasonable Approach to Meal Planning

    Benefits: Public Law 104-149 permits school food authorities to 
use ``any reasonable approach'' to menu planning not specifically 
delineated in the regulations. The law makes it clear, however, that 
approval of other ``reasonable approaches'' must be in accordance 
with guidelines established by the Secretary. In developing 
appropriate guidelines, the Department considers that there are two 
classes of additional reasonable approaches. The first class of 
reasonable approaches consists of alternatives which are essentially 
relatively minor modifications to one or another of the existing 
menu planning systems. The second class of alternatives would 
involve unique proposals that depart significantly from the existing 
systems.

Minor Modifications

    The Department believes that minor modifications to existing 
meal planning systems do not pose significant questions about 
nutritional content or program integrity. Therefore, to reduce 
unnecessary paperwork, the Department is proposing to authorize 
State agencies to permit their school food authorities to choose any 
of the following adaptations without applying to the State agency 
for approval. The decision to authorize any or all of these 
modifications rests entirely with the State agency. State agencies 
may establish a general policy allowing school food authorities to 
adopt any or all of these approaches without prior approval or chose 
to review requests from school food authorities. The preapproved 
approaches are:
    1. Weekly Meat/Meat Alternate Quantity Standard: Schools using 
one of the food-based menu planning systems would be allowed the 
flexibility to vary the quantity of the meat/meat alternate on a 
daily basis as long as the total amount served over the course of 
the school week equals the minimum daily quantity multiplied by the 
number of serving days in the week. Schools would still be required 
to serve a minimum of one ounce of meat/meat alternate daily.
    2. Flexible Age-Grade Groupings for Food-Based Systems: Under 
the analysis-based menu planning options, if only one age or grade 
in a school is outside the established RDA and calorie requirements 
for the majority of students, schools are permitted to use the 
nutrition standards for that majority. In the interests of 
consistency and flexibility, the Department is proposing to extend 
this option to the food-based systems as well.

Innovative Approaches

    The second class of other reasonable approaches involves 
innovative systems that are not currently established in program 
regulations and guidance. These innovative menu planning systems 
could be developed by school food authorities for use in their 
schools, or developed by State agencies and made available to their 
school food authorities. The Department envisions two approaches 
that State agencies could take in developing menu planning systems. 
It would be possible for a State to develop a unique menu planning 
system and then refrain from being involved in the operation or 
evaluation of the system. In these cases, the system would have to 
be submitted to the Department for approval before implementation. 
The second scenario involves systems developed by the State, used by 
multiple school food authorities (at least five) within the State, 
and the State agency remains an active partner in the operation and 
evaluation of the system on an ongoing basis and issues an 
announcement notifying the public of the alternate menu planning 
approach. In this case, the State would not be required to submit 
the system to the Department for approval prior to implementation.
    Any meal planning system proposed by a school food authority or 
a State agency

[[Page 27174]]

would have to be assessed for its potential impact on the delivery 
of meals to children, both nutritionally and fiscally. To achieve 
these goals, the Department is proposing to establish a framework 
and criteria for consideration and approval of such requests. Any 
approach developed by a State agency or a school food authority 
would need to ensure that the following areas, which are critical to 
the proper and efficient operation of the program, be satisfied:
    1. Identification of Reimbursable Meals: The definition of a 
reimbursable meal is essential to program integrity. The four menu 
planning systems specifically recognized by the statute have 
specific requirements for a reimbursable lunch or breakfast. In 
keeping with these principles, the school food authority would need 
to outline, in any proposed menu planning alternative, what 
constitutes a reimbursable meal; how these will be identified by the 
students in the line and by food service staff at the point of 
service; and how reviewers will be able to document compliance. 
Likewise, the State agency must determine that the reimbursable meal 
will offer sufficient nutrition on a daily basis to justify Federal 
reimbursement.
    2. Provide for Offer versus Serve: When developing a menu 
planning alternative, school food authorities must provide for offer 
versus serve (OVS), as appropriate. Section 9(a)(4) of the NSLA 
requires that schools implement OVS in the NSLP for senior high 
students; at local option, school food authorities may adopt OVS in 
the lunch program for lower grades as well. Local school food 
authorities may also implement OVS for the SBP. The purpose of OVS 
is to encourage students to make selections that they prefer, thus 
helping to reduce plate waste. Therefore, because of the statutory 
mandate, any menu planning approach proposed by an school food 
authority or State agency must include OVS for senior high students 
at a minimum.
    3. Compliance with Nutrition Standards: By law, school lunches 
are required to provide, over a week's time, one-third of the RDA 
for key nutrients and one-third of the calories needed by growing 
children of different ages. In addition, the meals must comply with 
the recommendations of the Dietary Guidelines. School breakfasts 
must provide one-fourth of the RDA and calorie needs and also must 
comply with the Dietary Guidelines. Under no circumstances can these 
requirements be modified. Therefore, any request to employ an 
alternate menu planning approach would need to demonstrate, to the 
satisfaction of the State agency, that the menus would continue to 
meet or exceed these standards. Furthermore, because the RDA can 
vary by age and/or grade group, the school food authority would need 
to specify which age/grade groups will be served and indicate what 
the appropriate RDA and calorie levels are for each age/grade group.
    4. Ability to Monitor: Any alternate approach must be capable of 
being monitored by the State agency to determine that reimbursable 
meals are being offered, accepted, and properly counted and that the 
meal service is in compliance with all of the nutrition standards.
    While the Department wishes to provide school food authorities 
with maximum flexibility to develop alternate menu planning 
approaches, this proposed rule would prohibit State agencies from 
approving modifications to the existing four menu planning options 
beyond those discussed above as automatic options. The Department 
considers that certain requirements governing these options must 
remain intact except for limited exceptions for special State-wide 
systems. Consequently, the following operational components of the 
established menu planning systems may not be modified except as 
discussed below:
    1. Weighted Averages for NSMP/ANSMP: The regulations require 
schools employing NSMP or ANSMP to conduct their analyses by 
weighting all foods planned as part of the reimbursable meal service 
according to the amount of each food actually intended to be 
produced, based on production records or experience. However, in 
order to make the transition to updated menu planning methods as 
smooth as possible and to ensure that every avenue for promoting 
sound nutrition while minimizing burden is explored, the Department 
authorized a delay in implementing this regulatory requirement for 
all schools adopting NSMP until the Department has the opportunity 
to evaluate the ability of weighted and unweighted averages to 
provide accurate determinations of compliance with the nutrition 
standards.
    2. Use of Approved Software for NSMP and ANSMP: The regulations 
also require menu planners electing to use NSMP or ANSMP to conduct 
or to have their analyses conducted using software approved by the 
Department. The Department is aware that there are many nutrition 
software packages available; however, many of these are for 
individuals or for clinical settings such as hospitals. The software 
approved by USDA is designed to meet the needs of school food 
service professionals and fulfills essential school-based needs.
    3. Crediting Requirements for Food-Based Alternatives: This 
proposed rule would prohibit State agencies from disregarding any of 
the Department's crediting policies for schools electing to use a 
food-based menu planning system. The Department's standards for 
crediting food items are designed to maintain the nutritional 
integrity of school meals by ensuring that foods used to satisfy 
quantity and component requirements provide a sufficient amount of 
the component or its equivalent to count toward meeting the meal 
requirements, standards of identity and/or specifications.
    4. Foods of Minimal Nutritional Value: The Department also 
wishes to emphasize that States may not, under any circumstances, 
approve the sale of foods of minimal nutritional value as defined in 
program regulations.
    However, the Department is also proposing that, in certain 
limited situations, menu planning systems, supported by the 
knowledge and resources of a State agency, can operate with 
modifications beyond those available to school food authorities 
while maintaining the necessary control over the nutritional content 
of their meals. Therefore, this proposal would authorize 
modification in some menu planning systems of the provisions on 
weighted nutrient analysis and approved software, provided that: 
these systems are operated under policies and procedures developed 
or adopted by a State agency; the State agency remains an active 
participant in the operation and evaluation of the project on an 
ongoing basis; and the system is used by multiple school food 
authorities (at least five) within the State and the State agency 
issues a public announcement concerning the alternative menu 
planning approach.

Effects of Implementing ``Any Reasonable Means''

    Benefits: The provision permitting the use of ``any reasonable 
approach'' to menu planning will provide school food authorities with 
even greater flexibility in developing a menu service which meets the 
needs and preferences of local children. The rule contains a provision 
allowing school food authorities to make minor modifications to 
existing meal planning systems. The rule also contains provisions which 
allow school food authorities or States to make extensive modifications 
to existing menu planning systems or to develop innovative systems that 
are not currently established in program regulations and guidance.
    The rule proposes that certain minor modifications by a school 
food authority to one or another of the existing meal systems would 
be allowed, at the discretion of the State agency, without prior 
approval. An example of the additional flexibility to be gained by 
individual schools is the ability to vary the amount of meat/meat 
alternate served on daily basis. This provision provides schools 
with an option that allows them to produce a more appealing entree 
or to reduce the amount of plate waste while still meeting the 
minimum weekly serving requirement of a meat/meat alternate.
    A school food authority desiring to make more than minor 
modifications would be permitted to develop a proposal which differs 
significantly from the existing meal planning systems. The authority 
to develop their own menu planning systems will allow school food 
authorities to take into consideration any unique local food 
preferences or dietary needs when planning such systems.
    The provisions of this rule allow State agencies to develop 
their own menu planning alternatives and make them available to 
local school food authorities. State agencies will have the 
opportunity to develop, in consultation with school food authorities 
within their State, a menu planning system designed to meet the 
specific needs of the children of their State rather than one 
designed for the tastes and needs of the national student 
population.
    The rule allows such a menu planning system to use alternate 
weighting procedures and software while continuing to operate within 
normal regulatory authority, provided that the system is used by at 
least five school food authorities within the State, the State 
agency remains an active participant in the

[[Page 27175]]

operation and evaluation of the system on an ongoing basis and 
notifies the public about their alternative menu planning approach. 
This provision would provide State agencies with increased 
flexibility in the selection of software used to conduct the 
nutrient analyses.
    Costs: While it is entirely possible that local menu planners 
may devise systems which produce nutritious meals which are 
appealing to children, these innovative systems are, by their very 
nature, untested and subject to unforeseen consequences. Any unique 
meal planning system will be required to serve meals which provide 
the same level of key nutrients as any of the prescribed meal 
patterns. It is possible that a locally developed system might have 
difficulty complying with the recommendations. In these instances, 
school food authorities and States might find it necessary to 
provide additional training and technical assistance to those 
schools failing to meet the nutrition requirements. However, it is 
also reasonable to expect that innovation may result in lower costs 
methods being devised. In either case, the nutrient standards remain 
the same; and the anticipated impacts on agriculture and the 
children's health are verifiable.
    As noted previously, the percentage of total calories from fat 
consumed by school aged children in the late 1980's and early 1990's 
was above what was recommended by the Dietary Guidelines for 
Americans. Because States will conduct reviews once every five 
years, several years may pass before problems in meeting the 
nutritional guidelines will be detected. If schools fail to meet the 
nutrient standards using innovative systems, it is possible that the 
nutritional quality of some school meals may be deficient for a 
period of up to five years. However, FNS has anecdotal evidence that 
school food authorities have made improvements in their ability to 
meet the Dietary Guidelines.
    As with the traditional meal pattern, the State agency will 
still be responsible for monitoring the progress these locally 
developed systems make toward complying with the Dietary Guidelines 
and nutrition standards. Should any such system or systems fail to 
comply with these standards, the State agency would need to work 
with the school food authorities to devise corrective action that 
would ensure that the menu planning systems would make progress 
towards, and eventually comply with, the Dietary Guidelines. If 
locally developed systems prove to have difficulty meeting the 
required nutritional requirements, the State agency would be faced 
with an increased monitoring burden without a concomitant reduction 
in any other monitoring burdens.
    At this time it is impossible to determine the additional burden 
that will be required of State agencies as a result of school food 
authorities developing their own menu planning systems and failing 
to meet the nutrition standards. As stated earlier, the 1996-1997 
school year is the first one in which States have been required to 
conduct the nutrient analyses so no data is available as to the 
number of schools failing to meet the standards. Additionally, FNS 
has no indications as to how many local agencies might choose to 
develop their own menu planning systems. It is also impossible to 
determine the additional nutritional risk placed on children in 
schools that have difficulty meeting the Dietary Guidelines. 
However, because there is a certain amount of uncertainty regarding 
the ability of schools to meet the nutritional requirements under 
innovative systems, FNS acknowledges that nutritional risk exists.

Miscellaneous Monitoring Provisions

    Background: The Department is also proposing a number of 
amendments to the requirements for nutrition monitoring designed to 
ensure appropriate State agency oversight of all menu planning 
alternatives and to clarify some existing provisions.
    First, the nutrition monitoring provisions pertaining to reviews 
of the enhanced food-based menu planning option would be extended to 
reviews of schools using the traditional meal pattern and other 
reasonable approaches. As part of these reviews, the State agency 
must conduct a nutrient analysis using the regulatory procedures 
schools follow for NSMP.
    Second, the Department is proposing to redefine the review 
period for nutrition reviews which is currently the last completed 
week prior to the review in order to expedite concurrent reviews of 
the nutrition standards and reviews for compliance with serving 
reimbursable meals and free/reduced price application requirements 
as conducted under coordinated review effort (CRE) reviews. The 
proposal would permit reviewers to conduct the nutrition review for 
any week prior to the month of review as is allowed in other 
reviews.
    A third proposed provision would clarify that State agencies 
must conduct at least one review of every menu planning option 
employed by the school food authority. The proposal also clarifies 
that State agencies would be required to review only the lunch 
program unless the school food authority uses a particular menu 
planning option for breakfast but not for lunch, in which case at 
least one school's breakfast program would need to be reviewed.
    A fourth proposed change would require State agencies to ensure 
that there are appropriate methods for monitoring compliance with 
the nutrition standards in schools using approved reasonable 
approaches. At a minimum, nutrition monitoring in these schools 
would be required to include a nutrient analysis by the State agency 
using software approved for NSMP.
    Finally, the Department is proposing a minor technical amendment 
to make the cycle for nutrition reviews consistent with the cycle 
for administrative reviews under CRE. The cycle for conducting 
nutrition standard reviews was intended to run concurrently with the 
CRE cycle so that those States electing to conduct nutrition reviews 
at the same time as administrative reviews could do so efficiently. 
While State agencies are not required to conduct nutrition reviews 
at the same time as administrative reviews, the Department intended 
to make the two review cycles coincide so that State agencies could 
avail themselves of this option efficiently. To achieve this goal, 
therefore, the Department is proposing to establish an initial cycle 
for nutrition reviews as seven years, from July 1, 1996 through June 
30, 2003. Thereafter, review cycles would be five years in length. 
This expanded cycle would allow State agencies more flexibility 
during the implementation phase to complete reviews and provide 
schools with necessary assistance.

Effects of Miscellaneous Monitoring Provisions

    Benefits: The rule contains minor provisions which provide State 
agencies with greater flexibility in scheduling of nutrition 
reviews. The rule allows States to conduct the nutrient analysis 
based on one week in the month prior to the month of review. Current 
regulations require that the week chosen for analysis be the last 
completed week prior to review. Allowing the State agency to choose 
a week in any month prior to the month of review allows the States 
to coordinate their nutrition review with the CRE administrative 
reviews.
    The rule proposes to alter the nutrition review cycles so that 
States wishing to conduct their nutrition reviews at the same time 
as their CRE administrative reviews will be able to do so. The June 
13, 1995 final rule established a five-year cycle for reviews of 
nutrition compliance. The regulation stipulated that the first five-
year cycle could begin as early as July 1, 1996 or as late as July 
1, 1998. As a result, the first cycle could end as soon as June 30, 
2001, or as late as June 30, 2003, depending upon implementation. 
The current CRE cycle ends on June 30, 1998 and the following cycle 
will end June 30, 2003. So that the two cycles might coincide, the 
rule proposes to establish an initial cycle for nutrition reviews of 
seven years, from July 1, 1996 to June 30, 2003. The expanded cycle 
would allow State agencies more flexibility during the 
implementation phase to complete reviews and provide schools with 
necessary assistance.
    Costs: When the June 13, 1995 final rule established reviews of 
nutrition compliance, the Department did not anticipate that the 
traditional meal pattern would continue to be an option after June 
30, 1998, so no provision was made requiring a nutrient analysis for 
schools using this meal pattern. The proposed rule extends nutrition 
monitoring provisions pertaining to reviews of the enhanced food-
based menu planning option to reviews of schools using the 
traditional meal pattern. The requirement that a nutritional 
analysis be conducted on schools using the traditional meal plan 
does not place any additional burden on State agencies.
    The rule requires that State agencies must conduct at least one 
review of every menu planning option employed by the school food 
authority. This requirement could result in more schools being 
reviewed for nutrition compliance than would be required to be 
reviewed under CRE. For each school it takes one staff person 
approximately one and a half days to complete a CRE review. This 
would come at the approximate cost of $216 for

[[Page 27176]]

each additional school.\2\. The Department believes this coverage is 
necessary to ensure that the school food authority is employing all 
menu planning systems correctly. The only way for the State agency 
to identify problems and provide technical assistance is to examine 
the school food authorities experience with all systems. It is 
impossible to determine how many more schools State agencies will 
have to review for nutrition compliance than would be required for 
CRE as the Department has no data on how many school food 
authorities use multiple menu planning systems.
---------------------------------------------------------------------------

    \2\ Cost calculated assuming 12 hours to review each school at a 
wage rate of $18 an hour.
---------------------------------------------------------------------------

Other Effects of the Proposed Regulation

Effects of Rule on NSLP Participation

    The provisions of this rule may have a small effect on 
participation in the National School Lunch Program. The provisions of 
this rule may have the effect of making meals more appealing which may 
increase participation. Implementation of the rule is not expected to 
increase meal prices or decrease meal acceptability. The rule allows 
schools to continue to use the current meal pattern. Additionally, 
school food authorities and States are now able to develop menu plans 
that they feel would be even more appealing to their student population 
than the menu plans prescribed by the Department.

Effects of Rule on Program Costs

    The provisions in this proposed rule will provide increased 
flexibility to State or local program operators but have no budgetary 
impact.

Effects on Small Entities

    This proposal will not have significant economic impact on a 
substantial number of small entities. This proposal does not add any 
new requirements and there are no required additional costs. School 
food authorities and schools may experience some positive effects from 
this proposed rule as noted previously.

Summary of the Effects of the Proposed Rule

    The proposed rule provides school food authorities and State 
agencies with increased choices and flexibility in selecting a menu 
planning system by permanently reinstating the meal pattern in effect 
during the 1994-1995 school year and providing guidelines for approval 
of other reasonable approach alternatives that schools may develop.
    The proposed rule contains minor monitoring provisions. It extends 
monitoring provisions pertaining to reviews of the enhanced food-based 
menu planning option to reviews of schools using the traditional meal 
pattern. It provides State agencies with greater flexibility in 
selection of the week to be reviewed for nutrient compliance. Further, 
the proposed rule alters the nutrition review cycle so that it 
coincides with the CRE administrative review cycle. This will allow 
State agencies to more easily conduct nutrient reviews at the same time 
as administrative reviews.
    The proposed rule is not expected to have any impact on program 
participation, nor is the rule expected to have any budgetary impact. 
The rule will not have a significant economic impact on a substantial 
number of small entities.
    5. Public Comments: This proposal will provide a 180-day comment 
period.

List of Subjects

7 CFR Part 210

    Commodity School Program, Food assistance programs, Grant 
programs--education, Grant programs--health, Infants and children, 
Nutrition, Reporting and recordkeeping requirements, School breakfast 
and lunch programs, Surplus agricultural commodities.

7 CFR Part 220

    Food assistance programs, Grant programs--education, Grant 
programs--health, Infants and children, Nutrition, Reporting and 
recordkeeping requirements, School breakfast and lunch programs.

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

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

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

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


Sec. 210.2   [Amended]

    2. In Sec. 210.2:
    a. the definition of ``Food component'' is amended by removing the 
words ``or one of the four food groups which compose the reimbursable 
school lunch, i.e., meat or meat alternate, milk, bread or bread 
alternate, and vegetable/fruit under Sec. 210.10a'';
    b. the definition of ``Food item'' is amended by removing the words 
``or one of the five required foods that compose the reimbursable 
school lunch, i.e., meat or meat alternate, milk, bread or bread 
alternate, and two (2) servings of vegetables, fruits, or a combination 
of both for the purposes of Sec. 210.10a''; and
    c. the definition of ``Lunch'' is amended by removing the words 
``Sec. 210.10(k)(2) or the school lunch pattern for specified age/grade 
groups of children as designated in Sec. 210.10a'' and adding in their 
place the words ``Sec. 210.10(k)(1) or Sec. 210.10(k)(2), whichever is 
applicable''.

Sec. 210.4  [Amended]

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


Sec. 210.7   [Amended]

    4. In Sec. 210.7:
    a. paragraph (c)(1)(v) is amended by removing the words ``or 
Sec. 210.10a(b), whichever is applicable,''; and
    b. paragraph (d) is amended by removing the words 
``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is applicable'' 
and adding in their place a reference to ``Sec. 210.10(o)(1)''.


Sec. 210.9   [Amended]

    5. In Sec. 210.9:
    a. paragraph (b)(5) is amended by removing the words ``or 210.10a, 
whichever is applicable'';
    b. paragraph (c) introductory text is amended by removing the words 
``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is applicable'' 
and adding in their place a reference to ``Sec. 210.10(o)(1)''; and
    c. paragraph (c)(1) is amended by removing the words ``or 
Sec. 210.10a, whichever is applicable''.

    6. In Sec. 210.10:
    a. paragraph (a)(1) is amended by revising the first sentence and 
by adding a new sentence at the end of the paragraph;
    b. the second sentence of paragraph (a)(3) is amended by removing 
the word ``or'' and adding in its place a comma and by adding the words 
``or those developed under paragraph (l)'' after the reference to 
``paragraph (i)(1)''; the third sentence of paragraph (a)(3) is amended 
by removing the third occurrence of the word ``or'' and adding in its 
place a comma, and adding the words ``or those developed under 
paragraph (l)'' after the reference to ``paragraph (i)(1)'';
    c. paragraph (b)(1) is amended by making the word ``paragraph'' 
plural, by removing the second occurrence of the word ``or'' and adding 
in its place a comma and by adding the words ``or (l)'' after the 
reference to ``(i)(1)'';
    d. paragraph (b)(2) is amended by removing the second occurrence of 
the word ``or'' and adding in its place a comma, and by adding the 
words ``or (l)'' after the reference to ``(i)(1)'';

[[Page 27177]]

    e. paragraph (b)(3) is revised;
    f. paragraph (b)(4) introductory text is amended by removing the 
reference to ``1990'' and adding in its place a reference to ``1995'';
    g. the first sentence of paragraph (b)(5) is revised;
    h. the table in paragraph (c)(1) is revised;
    i. the table in paragraph (c)(2) is revised;
    j. paragraph (d) is revised;
     k. the heading of paragraph (i)(4) and paragraph (i)(9) are 
amended by removing the words ``National Nutrient Database'' and adding 
in their place the words ``Child Nutrition Database'';
    l. paragraphs (i)(4) and (i)(8) are amended by removing the words 
``National Nutrient Database for the Child Nutrition Programs'' 
wherever they appear and by adding the words ``Child Nutrition 
Database'' in their place;
    m. the heading of paragraph (k) is revised and introductory text is 
added;
    n. paragraph (k)(1) is revised;
    o. the heading of paragraph (k)(2) and the introductory text before 
the chart are revised;
    p. the first two sentences of paragraph (k)(4) are redesignated as 
paragraph (k)(4)(i) and the last sentence of paragraph (k)(4) is 
redesignated as paragraph (k)(4)(ii) and is revised;
    q. paragraph (k)(5) is amended by adding a new paragraph 
(k)(5)(iii);
    r. paragraph (k)(5)(ii) is amended by adding two new sentences 
between the second and third sentences;
    s. paragraphs (l) through (o) are redesignated as paragraphs (m) 
through (p), respectively, and a new paragraph (l) is added;
    t. newly redesignated paragraph (o)(3)(iv) is amended by removing 
the reference to ``(n)(3)'' and adding in its place a reference to 
``(o)(3)''; and
    u. in newly redesignated paragraph (p), the reference to ``1990'' 
is removed and a reference to ``1995'' is added in its place.
    The additions and revisions read as follows:


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 levels of calories and nutrients provided in: paragraph 
(c) or paragraph (i)(1) of this section for nutrient standard menu 
planning and assisted nutrient standard menu planning; paragraph (d)(1) 
of this section for the traditional food-based menu planning 
alternative; paragraph (d)(2) of this section for the enhanced food-
based menu planning alternative; or as developed in accordance with the 
provisions in paragraph (l) of this section for other menu planning 
alternatives, whichever is applicable. * * * In addition, those school 
food authorities that use menu planning approaches as allowed under 
paragraph (l) of this section shall ensure that sufficient quantities 
of food are planned and produced to meet the provisions in paragraph 
(b) of this section and any minimum standards for food/menu items and 
quantities.
* * * * *
    (b) Nutrition standards for reimbursable lunches. * * *
    (3) The applicable recommendations of the 1995 Dietary Guidelines 
for
    Americans which are:
    (i) Eat a variety of foods;
    (ii) Limit total fat to 30 percent of calories;
    (iii) Limit saturated fat to less than 10 percent of calories;
    (iv) Choose a diet low in cholesterol;
    (v) Choose a diet with plenty of grain products, vegetables, and 
fruits;
    (vi) Choose a diet moderate in salt and sodium; and
    (vii) Choose a diet moderate in sugars.
* * * * *
    (5) School food authorities have several alternatives for menu 
planning in order to meet the nutrition standards of this paragraph and 
the applicable nutrient and calorie levels: nutrient standard menu 
planning as provided for in paragraph (i) of this section; assisted 
nutrient standard menu planning as provided for in paragraph (j) of 
this section; traditional food-based menu planning as provided for in 
paragraph (d)(1) of this section; enhanced food-based menu planning as 
provided for in paragraph (d)(2) of this section; or other menu 
planning approaches as provided for in paragraph (l) of this section. * 
* *
    (c) Nutrient levels for school lunches/nutrient analysis.

[[Page 27178]]

    (1) * * *
    [GRAPHIC] [TIFF OMITTED] TP15MY98.001
    
    (2) * * *
    [GRAPHIC] [TIFF OMITTED] TP15MY98.002
    
    (d) Minimum nutrient levels for school lunches/food-based menu 
planning alternatives.
    (1) Traditional food-based menu planning alternative. For the 
purposes of the traditional food-based menu planning alternative, as 
provided for in paragraph (k)(1) of this section, the following chart 
provides the minimum levels, by grade group, for calorie and nutrient 
levels for school lunches offered over a school week:

[[Page 27179]]

[GRAPHIC] [TIFF OMITTED] TP15MY98.003


    (2) Enhanced food-based menu planning alternative. For the purposes 
of the enhanced food-based menu planning alternative, as provided for 
in paragraph (k)(2) of this section, the following chart provides the 
miniumn levels, by grade group, for calorie and nutrient levels for 
school lunches over a school week:
[GRAPHIC] [TIFF OMITTED] TP15MY98.004


[[Page 27180]]


* * * * *
    (k) Food-based menu planning alternatives. School food authorities 
may choose to plan menus using either the traditional or enhanced food-
based menu planning alternatives. Under these alternatives, specific 
food components shall be offered as provided in either paragraphs 
(k)(1) or (k)(2) of this section, whichever is applicable, and in 
paragraphs (k)(3) through (k)(5) of this section, as appropriate.
    (1) Minimum quantities-traditional food-based menu planning 
alternative. (i) At a minimum, school food authorities choosing to plan 
menus using the traditional food-based menu planning alternative shall 
offer all five required food items in the quantities provided in the 
following chart:
[GRAPHIC] [TIFF OMITTED] TP15MY98.005

    (ii) Schools able to provide the appropriate quantities of food to 
children of each age/grade group should do so. Schools that cannot 
serve children of each age or grade level shall provide all school age 
children Group IV portions as specified in the table presented in this 
paragraph. Schools serving lunches to children of more than one age or 
grade level shall plan and produce sufficient quantities of food to 
provide Groups I-IV no less than the amounts specified for those 
children in the table presented in this paragraph, and sufficient 
quantities of food to provide Group V no less than the specified 
amounts for Group IV. It is recommended that such schools plan and 
produce sufficient quantities of food to provide Group V children the 
larger amounts specified in the table. Schools that provide increased 
portion sizes for Group V may comply with children's requests for 
smaller portion sizes of the food items; however, schools shall plan 
and produce sufficient quantities of food to at least provide the 
serving sizes required for Group IV.
    (2) Minimum quantities-enhanced food-based menu planning 
alternative. At a minimum, school food authorities choosing to plan 
menus using the enhanced food-based menu planning alternative shall 
offer all five required

[[Page 27181]]

food items in the quantities provided in the following chart:
* * * * *
    (4) Vegetables and fruits. * * *
    (ii) Under the enhanced food-based menu planning alternative, the 
requirement for this component is based on minimum daily servings plus 
an additional one-half cup in any combination over a five day period 
for children in kindergarten through grade six.
    (5) Grains/breads. * * *
    (ii) * * * Schools serving lunch 6 or 7 days per week should 
increase the weekly quantity by approximately 20 percent (1/5) for each 
additional day. When schools operate less than 5 days per week, they 
may decrease the weekly quantity by approximately 20 percent (1/5) for 
each day less than five.* * *
    (iii) Under the traditional food-based menu planning alternative, 
schools shall serve daily at least one-half serving of bread or bread 
alternate to children in Group I and at least one serving to children 
in Groups II-V. Schools which serve lunch at least 5 days a week shall 
serve a total of at least five servings of bread or bread alternate to 
children in Group I and eight servings per week to children in Groups 
II-V.
* * * * *
    (l) Other menu planning alternatives.
    (1) Modifications. School food authorities may adopt any or all of 
the following menu planning alternatives. State agencies may require 
prior approval for adopting the alternatives, may establish guidelines 
for their adoption, or may permit their adoption without prior 
approval.
    (i) Under the traditional or enhanced food-based menu planning 
alternatives provided for in paragraph (k) of this section, the meat/
meat alternate component may be provided as a weekly total with a one 
ounce (or its equivalent for certain meat alternates) minimum daily 
amount, except that this provision does not apply if the minimum 
serving of meat/meat alternate is less than one ounce; or
    (ii) Under the traditional or enhanced food-based menu planning 
alternatives, if only one age or grade is outside the established 
levels, schools may use the levels for the majority of children for 
both portions and the Recommended Dietary Allowances and lunchtime 
energy allowances.
    (2) Major changes or new alternatives: use and approval. Subject to 
the applicable requirements of paragraph (l)(3) of this section, school 
food authorities or State agencies may modify one of the menu planning 
alternatives established in paragraphs (i) through (k) of this section 
or may develop their own menu planning approach. Any such alternate 
menu planning approaches shall be in writing for review and monitoring 
purposes, as applicable. No formal plan is required; the written 
alternate approach may be in the form of guidance, protocol, or the 
like. The alternate approach shall address how the provisions in 
paragraph (l)(3) shall be met.
    (i) Any school food authority-developed menu planning approach must 
have prior State agency review and approval.
    (ii) Except as noted in paragraph (l)(2)(iii), any State agency-
developed menu planning approach must have prior FNS approval.
    (iii) Any State agency-developed menu planning approach is not 
subject to FNS review if:
    (A) Five or more school food authorities within the State use the 
approach;
    (B) The State agency maintains on-going oversight of the operation 
and evaluation of the alternative menu planning approach including 
making adjustments to the approach's policies and procedures, as 
necessary, to ensure compliance with the applicable provisions in 
paragraph (l)(3) of this section as needed; and
    (C) The State agency issues an announcement notifying the public 
concerning the alternate menu planning approach prior to the 
implementation of the approach by any school food authority; such 
announcement shall be issued in a manner consistent with State 
procedures for public notification.
    (3) Major changes or new alternatives: required elements. The 
following requirements shall be met by any alternate menu planning 
approach:
    (i) The service of fluid milk, as provided in paragraph (m) of this 
section;
    (ii) Offer versus serve for senior high students. To the extent 
possible, the offer versus serve procedures for an alternate approach 
shall follow the procedures in paragraphs (i)(2)(ii) and (k)(6) of this 
section, as appropriate. Any alternate approach which deviates from the 
provisions in paragraphs (i)(2)(ii) or (k)(6) of this section shall, at 
a minimum, indicate what age/grade groups are included in offer versus 
serve and establish the number and type of items, (and, if applicable, 
the quantities for the items) that constitute a reimbursable meal under 
offer versus serve. In addition, the alternate offer versus serve 
procedures shall include an explanation of how such procedures will 
reduce plate waste and provide a reasonable level of calories and 
nutrients for the meal as taken;
    (iii) The nutrition standards in paragraphs (b)(1) through (b)(4) 
of this section. Any alternate approach shall indicate the age/grade 
groups to be served and how such approach is designed to meet these 
requirements for those age/grade groups;
    (iv) The requirements for competitive foods in Sec. 210.11 and 
Appendix B to this part.
    (v) For alternate food-based menu planning approaches, the 
requirements for crediting food items and products provided for in 
paragraphs (k)(3) through (k)(5) and paragraph (m) of this section, in 
the appendices to this part, and in instructions and guidance issued by 
FNS;
    (vi) Identification of a reimbursable meal at the point of service. 
To the extent possible, the procedures provided in paragraph (i)(2)(i) 
of this section for nutrient standard or assisted nutrient standard 
menu planning alternatives or for food-based menu planning alternatives 
provided in paragraph (k) of this section shall be followed. In 
addition, any instructions or guidance issued by FNS that further 
defines the elements of a reimbursable meal shall be followed when 
using the existing regulatory provisions. Any alternate approach that 
deviates from the provisions in paragraph (i)(2)(i) or paragraph (k) of 
this section shall indicate what constitutes a reimbursable meal, 
including the number and type of items (and, if applicable, the 
quantities for the items) which comprise the meal, and how a 
reimbursable meal is to be identified at the point of service.
    (vii) An explanation of how the alternate approach can be monitored 
under the applicable provisions of Sec. 210.18 and Sec. 210.19, 
including a description of the records that will be maintained to 
document compliance with the program's administrative and nutrition 
requirements. However, to the extent that the procedures under 
Sec. 210.19 are inappropriate for monitoring the alternate approach, 
the alternate approach shall include a description of review procedures 
which will enable the State agency to assess compliance with the 
nutrition standards in paragraphs (b)(1) through (b)(4) of this 
section; and
    (viii) the requirements for weighted analysis and for approved 
software for nutrient standard menu planning as required by paragraphs 
(i)(4) and (i)(5) of this section unless a State agency-developed 
approach meets the criteria in paragraph (l)(2)(iii) of this section.
* * * * *

[[Page 27182]]

Sec. 210.10a  [Removed]

    7. Section 210.10a is removed.


Sec. 210.15  [Amended]

    8. In Sec. 210.15:
    a. paragraph (b)(2) is amended by removing the words ``menu records 
as required under Sec. 210.10a and production and''; and
    b. paragraph (b)(3) is amended by removing the words ``or 
Sec. 210.10a(b), whichever is applicable''.


Sec. 210.16  [Amended]

    9. In Sec. 210.16, paragraph (b)(1) is amended by removing the 
words ``or Sec. 210.10a, whichever is applicable,'' wherever they 
appear.


Sec. 210.18  [Amended]

    10. In Sec. 210.18:
    a. paragraph (b)(2)(ii) is revised;
    b. the heading of paragraph (g)(2) introductory text is amended by 
removing the words ``food items/components as required by Program 
regulations'' and adding in their place the words ``meal elements (food 
items/components, menu items or other items, as applicable) as required 
under Sec. 210.10'';
    c. Paragraph (g)(2)(i) is amended by removing the words ``required 
food items/components'' and adding in their place the words ``meal 
elements (food items/components, menu items or other items, as 
applicable) as required under Sec. 210.10'';
    d. Paragraph (g)(2)(ii) is amended by removing the words ``the 
required number of food items/components'' and adding in their place 
the words ``the number of meal elements (food items/components, menu 
items or other items, as applicable) as required under Sec. 210.10'';
    e. Paragraph (g)(2)(iii) is amended by removing the words 
``required food items/components'' and adding in their place the words 
``meal elements (food items/components, menu items or other items, as 
applicable) as required under Sec. 210.10'';
    f. paragraph (h)(2) is amended by removing the words ``food items/
components in the quantities required under Sec. 210.10 or 
Sec. 210.10a, in whichever is applicable'' and adding in their place 
the words ``meal elements (food items/components, menu items or other 
items, as applicable) as required under Sec. 210.10''; and
    g. paragraph (i)(3)(ii) is amended by removing the words ``required 
food items/components'' and adding in their place the words ``meal 
elements (food items/components, menu items or other items, as 
applicable) as required under Sec. 210.10''.
    The revision reads as follows:


Sec. 210.18.  Administrative reviews.

* * * * *
    (b) Definitions. * * *
    (2) * * *
    (ii) Performance Standard 2--Meal Elements. Lunches claimed for 
reimbursement within the school food authority contain meal elements 
(food items/components, menu items or other items, as applicable) as 
required under Sec. 210.10.
* * * * *
    11. In Sec. 210.19:
    a. the first sentence of paragraph (a)(1) introductory text is 
amended by removing the reference to ``Sec. 210.10(o)'' and by adding 
in its place a reference to ``Sec. 210.10(p)'', and by removing the 
words ``or (d),'' and adding in their place the words ``, (d), or 
(i)(1) or the procedures developed under Sec. 210.10(l),'';
    b. the second sentence of paragraph (a)(1) introductory text is 
amended by removing the words ``At a minimum, these evaluations shall 
be conducted once every 5 years and'' and adding in their place the 
words ``These evaluations'';
    c. paragraph (a)(1) introductory text is further amended by adding 
five sentences at the end;
    d. paragraphs (a)(1)(i), (a)(1)(ii), (a)(1)(iii), and (a)(1)(iv) 
are redesignated as paragraphs (a)(1)(ii), (a)(1)(iii), (a)(1)(v), and 
(a)(1)(vi), respectively, and new paragraphs (a)(1)(i) and (a)(1)(iv) 
are added;
    e. the first sentence of newly redesignated paragraph (a)(1)(ii) is 
revised;
    f. newly redesignated paragraph (a)(1)(iii) introductory text is 
revised;
    g. paragraph (a)(3) is amended by removing the words ``or 
Sec. 210.10a, whichever is applicable,''; and
    h. paragraph (c)(6)(i) is amended by removing the words ``food item 
required under the meal pattern in Sec. 210.10a or the food-based menu 
planning alternative in Sec. 210.10(k), whichever is applicable'' and 
adding in their place the words ``meal element (food item/component, 
menu item or other items, as applicable) as required under 
Sec. 210.10''.
    The additions and revisions read as follows:


Sec. 210.19  Additional responsibilities.

    (a) General Program management. * * *
    (1) Compliance with nutrition standards.* * * At a minimum, the 
State agency shall review at least one school for each type of menu 
planning alternative used in the school food authority. Review activity 
may be confined to the National School Lunch Program unless a menu 
planning alternative is used exclusively in the School Breakfast 
Program. The review must examine compliance with the nutrition 
standards in Sec. 210.10(b) and Sec. 210.10(c), (d), (i)(1), or (l), 
and Sec. 220.8 (a), (c), (e)(1), or (h), as appropriate. State agencies 
are encouraged to review the School Breakfast Program as well if the 
school food authority requires technical assistance from the State 
agency to meet the nutrition standards or if corrective action is 
needed. Such review shall determine compliance with the appropriate 
requirements in Sec. 220.8 and may be done at the time of the initial 
review or as part of a follow-up to assess compliance with the 
nutrition standards.
    (i) At a minimum, State agencies shall conduct evaluations of 
compliance with the nutrition standards in Sec. 210.10(b) and 
Sec. 210.10(c), (d), (i)(1), or (l), as appropriate, at least once 
during each 5-year review cycle provided that each school food 
authority is evaluated at least once every 6 years, except that the 
first cycle shall begin July 1, 1996, and shall end on June 30, 2003. 
The compliance evaluation for the nutrition standards shall be 
conducted on the menu for any week of the current school year prior to 
the month in which such evaluation is conducted. The week selected must 
continue to represent the current menu planning system.
    (ii) For school food authorities choosing the nutrient standard or 
assisted nutrient standard menu planning alternatives provided in 
Sec. 210.10(i), Sec. 210.10(j), or Sec. 220.8(e), or Sec. 220.8(f), or 
developed under the procedures in Sec. 210.10(l) or Sec. 220.8(h), the 
State agency shall assess the nutrient analysis to determine if the 
school food authority is properly applying the methodology in 
Sec. 220.8(e), or Sec. 220.8(f), or developed under the procedures in 
Sec. 210.10(l) or Sec. 220.8(h), as appropriate.* * *
    (iii) For school food authorities choosing the food-based menu 
planning alternatives provided in Sec. 210.10(k) or Sec. 220.8(g) or 
developed under the procedures in Sec. 210.10(l) or Sec. 220.8(h), the 
State agency shall determine if the nutrition standards set forth in 
Sec. 210.10(b) and Sec. 210.10(d) are met. The State agency shall 
conduct a nutrient analysis in accordance with the procedures in 
Sec. 210.10(i) or Sec. 220.8(e), as appropriate, except that the State 
agency may:
* * * * *
    (iv) For school food authorities following an alternate approach as

[[Page 27183]]

provided under Sec. 210.10(l) or Sec. 220.8(h) that does not allow for 
use of the monitoring procedures in paragraphs (a)(1)(ii) or 
(a)(1)(iii), the State agency shall monitor compliance following the 
procedures developed in accordance with Sec. 210.10(l) or 
Sec. 220.8(h), whichever is appropriate.
* * * * *


Appendix A   [Amended]

    12. In Appendix A to Part 210--Alternate Foods for Meals:
    a. under Enriched Macaroni Products with Fortified Protein, 
paragraph 1.(a) is amended by removing the words ``or Sec. 210.10a, 
whichever is applicable,'';
    b. under Vegetable Protein Products, paragraph 1. introductory text 
is amended by removing the words ``or Sec. 210.10a, whichever is 
applicable'';
    c. under Vegetable Protein Products, paragraph 1.(d) is amended by 
removing the words ``or Sec. 210.10a, whichever is applicable'';
    d. under Vegetable Protein Products, paragraph 1.(e) is amended by 
removing the words ``or Sec. 210.10a, whichever is applicable'';
    e. under Vegetable Protein Products, paragraph 3. is amended by 
removing the words ``or Sec. 210.10a, whichever is applicable''.


Appendix C   [Amended]

    13. In Appendix C to Part 210-Child Nutrition Labeling Program:
    a. paragraph 2.(a) is amended by removing the words ``or 
Sec. 210.10a, whichever is applicable'';
    b. paragraph 3.(c)(2) is amended by removing the words ``or 
Sec. 210.10a, whichever is applicable'' and by removing the words ``or 
Sec. 220.8a, whichever is applicable'';
    c. paragraph 6. introductory text is amended by removing the words 
``or Sec. 210.10a, whichever is applicable'' and by removing the words 
``or Sec. 220.8a, whichever is applicable''.

PART 220--SCHOOL BREAKFAST PROGRAM

    1. The authority citation continues to read as follows:

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

Sec. 220.2  [Amended]

    2. In Sec. 220.2:
    a. paragraph (b) is amended by removing the words ``or Sec. 220.8a, 
whichever is applicable,''; and
    b. paragraph (t) is amended by removing the words ``or Sec. 220.8, 
whichever is applicable,''.


Sec. 220.7  [Amended]

    3. In Sec. 220.7, paragraph (e)(2) is amended by removing the words 
``or Sec. 220.8a, whichever is applicable,''.

    4. In Sec. 220.8:
    a. paragraph (a)(1) is amended by removing the second occurrence of 
the word ``or'' and adding in its place a comma and by adding the words 
``, or (h)'' after the reference to ``(e)(1)'';
    b. paragraph (a)(2) is amended by removing the second occurrence of 
the word ``or'' and adding in its place the words ``or (h)'' after the 
reference to ``(e)(1)'';
    c. paragraph (a)(3) is revised;
    d. paragraph (a)(4) is amended by removing the reference to 
``1990'' and adding in its place a reference to ``1995'';
    e. the first sentence of paragraph (a)(5) is revised;
    f. the first sentence of paragraph (a)(6) is amended by removing 
the word ``or'' and adding in its place a comma and by adding the words 
``or those developed under paragraph (h)'' after the reference to 
``paragraph (e)(1)'' and the second sentence of paragraph (a)(6) is 
amended by removing the third occurrence of the word ``or'' and adding 
in its place a comma and by adding the words ``or those developed under 
paragraph (h)'' after the reference to ``paragraph (e)(1)'';
    g. the table in paragraph (b)(1) is revised;
    h. the table in paragraph (b)(2) is revised;
    i. paragraph (c) is revised;
    j. the heading of paragraph (e)(4) and paragraph (e)(9) are amended 
by removing the words ``National Nutrient Database'' and adding in 
their place the words ``Child Nutrition Database'';
    k. paragraphs (e)(4) and (e)(8) are amended by removing the words 
``National Nutrient Database for the Child Nutrition Programs'' 
wherever they appear and by adding the words ``Child Nutrition 
Database'' in their place;
    l. the heading of paragraph (g) is revised and introductory text is 
added;
    m. the introductory text of paragraph (g)(1) is amended by removing 
the words ``in the table in paragraph (g)(2) of this section'' and 
adding in their place the words ``either in the table in paragraph 
(g)(2) or (g)(3) of this section, whichever is applicable'';
    n. paragraph (g)(2) is revised;
    o. paragraphs (h) through (m) are redesignated as paragraphs (i) 
through (n), respectively, and a new paragraph (h) is added; and
    p. in newly redesignated paragraph (n), the reference to ``1990'' 
is removed and a reference to ``1995'' is added in its place.
    The additions and revisions are as follows:


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

    (a) Nutrition standards for breakfasts for children age 2 and over. 
* * *
    (3) The applicable recommendations of the 1995 Dietary Guidelines 
for Americans which are: eat a variety of foods; limit total fat to 30 
percent of calories; limit saturated fat to less than 10 percent of 
calories; choose a diet low in cholesterol; choose a diet with plenty 
of grain products, vegetables, and fruits; choose a diet moderate in 
salt and sodium; and choose a diet moderate in sugars.
* * * * *
    (5) School food authorities have several alternatives for menu 
planning in order to meet the requirements of this paragraph including 
the appropriate nutrient and calorie levels: nutrient standard menu 
planning as provided for in paragraph (e) of this section; assisted 
nutrient standard menu planning as provided for in paragraph (f) of 
this section; traditional food-based menu planning as provided for in 
paragraph (g)(1) of this section; enhanced food-based menu planning as 
provided for in paragraph (g)(2) of this section; or other menu 
planning approaches as provided for in paragraph (h) of this section. * 
* *
* * * * *
    (b) Nutrient levels/nutrient analysis.

[[Page 27184]]

    (1) * * *
    [GRAPHIC] [TIFF OMITTED] TP15MY98.006
    
    (2) * * *
    [GRAPHIC] [TIFF OMITTED] TP15MY98.007
    
    (c) Minimum nutrient levels for school breakfasts/food-based menu 
planning alternatives. (1) Traditional food-based menu planning 
alternative. For the purposes of the traditional food-based menu 
planning alternative, as provided for in paragraph (g)(2) of this 
section, the following chart provides the minimum levels, by grade 
group, for calorie and nutrient levels for school breakfasts offered 
over a school week:

[[Page 27185]]

[GRAPHIC] [TIFF OMITTED] TP15MY98.008


    (2) Enhanced food-based menu planning alternative. For the purposes 
of the enhanced food-based menu planning alternative, as provided for 
in paragraph (g)(1) of this section, the following chart provides the 
minimum levels, by grade group, for calorie and nutrient levels for 
school breakfasts offered over a school week:
[GRAPHIC] [TIFF OMITTED] TP15MY98.009

* * * * *
    (g) Food-based menu planning alternatives. School food authorities 
may choose to plan menus using either the traditional or enhanced food-
based menu planning alternatives. Under these alternatives, specific 
food components shall be offered as provided in either paragraphs 
(g)(1) or (g)(2) of this section, whichever is applicable, and in 
paragraphs (g)(3) and (g)(4) of this section, as appropriate.
* * * * *

[[Page 27186]]

    (2) Minimum quantities-food-based menu planning alternatives. (i) 
At a minimum, schools using the traditional food-based menu planning 
alternative shall serve breakfasts in the quantities provided in the 
following chart:
[GRAPHIC] [TIFF OMITTED] TP15MY98.010


[[Page 27187]]


    (ii) At a minimum, schools using the enhanced food-based menu 
planning alternative shall serve breakfasts in the quantities provided 
in the following chart:
[GRAPHIC] [TIFF OMITTED] TP15MY98.011

* * * * *
    (h) Other menu planning alternatives.
    (1) Modification. Under the traditional or enhanced food-based menu 
planning alternatives, school food authorities may, if only one age or 
grade is outside the established levels, use the levels for the 
majority of children for both portions and the Recommended Dietary 
Allowances and breakfast energy allowances. State agencies may require 
prior approval for adopting this alternative, may establish guidelines 
for its adoption, or may permit its adoption without prior approval.
    (2) Major changes or new alternatives: use and approval. Subject to 
the requirements of paragraphs (h)(3) of this section, school food 
authorities or State agencies may modify one of the menu planning 
alternatives established in paragraphs (e) through (g) of this section 
or may develop their own menu planning approach. Any such alternate 
menu planning approaches shall be in writing for review and monitoring 
purposes, as applicable. No formal plan

[[Page 27188]]

is required; the written alternate approach may be in the form of 
guidance, protocol, or the like. The alternate approach shall address 
how the provisions in paragraph (h)(3) shall be met.
    (i) Any school food authority developed menu planning approach 
shall have prior State agency review and approval.
    (ii) Except as noted in paragraph (h)(2)(iii), any State agency-
developed menu planning alternative shall have prior FNS approval.
    (iii) Any State agency developed alternative is not subject to FNS 
review if:
    (A) Five or more school food authorities within the State use the 
approach;
    (B) The State agency maintains on-going oversight of the operation 
and evaluation of the alternative menu planning approach including 
making adjustments to the approach's policies and procedures, as 
necessary, to ensure compliance with the applicable provisions in 
paragraph (h)(3) of this section as needed; and
    (C) The State agency issues an announcement notifying the public 
concerning the alternate menu planning approach prior to the 
implementation of the approach by any school food authority; such 
announcement shall be issued in a manner consistent with State 
procedures for public notification.
    (3) Major changes or new alternatives: required elements. The 
following requirements shall be met by any alternate menu planning 
approach:
    (i) Service of fluid milk, as provided in paragraph (h)(1) of this 
section;
    (ii) The nutrition standards in paragraphs (a)(1) through (a)(4) of 
this section. Any alternate approach shall indicate the age/grade 
groups to be served and how such approach is designed to meet these 
requirements for those age/grade groups.
    (iii) The requirements for competitive foods in Sec. 220.12 and 
appendix B to this part;
    (iv) For alternate food-based menu planning approaches, the 
requirements for crediting food items and products provided for in 
paragraphs (g)(2) and (i) of this section, in the appendices to this 
part, in Sec. 210.10(k)(3) through (k)(5), Sec. 210.10 (m) and in the 
instructions and guidance issued by FNS;
    (v) Identification of a reimbursable meal at the point of service. 
To the extent possible, the procedures provided in paragraph (e)(2)(i) 
of this section for nutrient standard or assisted nutrient standard-
type menu planning approaches or in paragraph (g) of this section for 
food-based-type menu planning approaches shall be followed. In 
addition, any instructions or guidance issued by FNS that further 
defines the elements of a reimbursable meal shall be followed when 
using the existing regulatory provisions. Any alternate approach that 
deviates from the provisions in paragraph (e)(2)(i) or paragraph (g) of 
this section shall indicate what constitutes a reimbursable meal, 
including the number and type of items (and, if applicable, the 
quantities for these items) which comprise the meal, and how a 
reimbursable meal is to be identified at the point of service. Further, 
if the alternate approach provides for offer versus serve as allowed 
under paragraph (e)(2)(ii) of this section for nutrient standard or 
assisted nutrient standard-type menu planning approaches or in 
paragraph (g)(3) of this section for food-based-type menu planning 
approaches, the alternate approach shall follow those provisions to the 
extent possible. Any alternate approach that deviates from the 
provisions in paragraph (e)(2)(ii) or (g)(3) of this section shall, at 
a minimum, indicate what age/grade groups are included in offer versus 
serve and establish the number and type of items (and, if applicable, 
the quantities for the items) that constitute a reimbursable meal under 
offer versus serve. In addition, the alternate offer versus serve 
procedures shall include an explanation of how such procedures will 
reduce plate waste and provide a reasonable level of calories and 
nutrients for the meal as taken;
    (vi) An explanation of how the alternate approach can be monitored 
under the applicable provisions of Sec. 210.18 and Sec. 210.19, 
including a description of the records that will be maintained to 
document compliance with the program's administrative and nutrition 
requirements. However, to the extent that the procedures under 
Sec. 210.19 are inappropriate for monitoring the alternate approach, 
the alternate approach shall include a description of review procedures 
which will enable the State agency to assess compliance with the 
nutrition standards in paragraphs (a)(1) through (a)(4) of this 
section; and
    (vii) The requirements for weighted analysis and for approved 
software for nutrient standard menu planning as required by paragraphs 
(e)(4) and (e)(5) of this section unless a State agency developed 
approach meets the criteria in paragraph (h)(2)(iii) of this section.
* * * * *


Sec. 220.8a  [Removed]

    5. Section 220.8a is removed.


Sec. 220.9  [Amended]

    6. In Sec. 220.9, paragraph (a) is amended by removing the words 
``or Sec. 220.8a, whichever is applicable,''.


Sec. 220.14  [Amended]

    7. In Sec. 220.14, paragraph (h) is amended by removing the words 
``or Sec. 220.8a(a)(1), (b)(2), and (b)(3), whichever is applicable''.


Appendix A   [Amended]

    8. In Appendix A to Part 220--Alternate Foods for Meals, paragraph 
1.(a) is amended by removing the words ``or 220.8a, whichever is 
applicable''.


Appendix C   [Amended]

    9. In Appendix C to Part 220--Child Nutrition (CN) Labeling 
Program:
    a. paragraph 2.(a) is amended by removing the words ``or 210.10a, 
whichever is applicable'';
    b. paragraph 3.(c)(2) is amended by removing the words ``or 
210.10a, whichever is applicable'' and is further amended by removing 
the words ``or 220.8a, whichever is applicable''; and
    c. paragraph 6. is amended by removing the words ``or 210.10a, 
whichever is applicable'' and is further amended by removing the words 
``or 220.8a, whichever is applicable''.
* * * * *
    Dated: April 27, 1998.
Shirley R. Watkins,
Under Secretary for Food, Nutrition and Consumer Services.
    Editorial Note: FR Doc. 98-11654 was originally published at 63 
FR 24686-24709 in the issue of Monday, May 4, 1998. Due to numerous 
errors, the document is being republished in its entirety. The 
comment dates have changed. Also, disregard the correction document 
published at 63 FR 25569 May 8, 1998.
[FR Doc. 98-11654 Filed 5-1-98; 8:45 am]
BILLING CODE 1505-01-F