[Federal Register Volume 80, Number 10 (Thursday, January 15, 2015)]
[Proposed Rules]
[Pages 2037-2060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00446]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 80, No. 10 / Thursday, January 15, 2015 / 
Proposed Rules  

[[Page 2037]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, and 226

[FNS-2011-0029]
RIN 0584-AE18


Child and Adult Care Food Program: Meal Pattern Revisions Related 
to the Healthy, Hunger-Free Kids Act of 2010

AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule proposes changes to the meal pattern requirements 
for the Child and Adult Care Food Program (CACFP) to better align the 
meal patterns with the 2010 Dietary Guidelines for Americans, as 
required by the Healthy, Hunger-Free Kids Act of 2010 (HHFKA). The 
proposed changes are based on the Dietary Guidelines for Americans, 
science-based recommendations made by the Institute of Medicine of the 
National Academies in the report Child and Adult Care Food Program: 
Aligning Dietary Guidance for All, and input from stakeholders, as well 
as cost and practical considerations for CACFP institutions and 
facilities. In addition, this proposal would make additional revisions 
to the health and wellness components of CACFP to reflect several 
requirements set forth in the HHFKA, including making changes to the 
purpose of the Program and making water available to Program 
participants. Several of these changes would be extended to the 
National School Lunch Program, School Breakfast Program, and Special 
Milk Program to increase consistency across all Child Nutrition 
Programs. Implementation of this proposed rule would serve as a step 
towards more nutritious meals that improve the dietary habits of 
participants in day care.

DATES: To be assured of consideration, comments must be received on or 
before April 15, 2015.

ADDRESSES: The Food and Nutrition Service (FNS), USDA, invites 
interested persons to submit comments on this proposed rule. In order 
to ensure proper receipt, comments may be submitted through one of the 
following methods only:
     Preferred method: Federal eRulemaking Portal at http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Written comments should be addressed to Tina Namian, 
Branch Chief, Policy and Program Development Division, Child Nutrition 
Programs, Food and Nutrition Service, Department of Agriculture, Post 
Office Box 66874, St. Louis, Missouri 63166.
    Comments sent by other methods not listed above will not be able to 
be accepted and subsequently not posted. Comments submitted in response 
to this rule will be included in the record and will be made available 
to the public. Please be advised that the substance of the comments and 
the identity of the individuals or entities submitting the comments 
will be subject to public disclosure. USDA will make the comments 
publicly available on the Internet via http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Tina Namian, Branch Chief, Policy and 
Program Development Division, Child Nutrition Programs, Food and 
Nutrition Service, U.S. Department of Agriculture, 3101 Park Center 
Drive, Room 1206, Alexandria, Virginia 22302-1594, 703-305-2590.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Executive Summary
III. Background and Discussion of the Proposed Rule
IV. Procedural Matters

I. Public Comment Procedures

    Your written comments on the proposed rule should be specific, 
should be confined to issues pertinent to the proposed rule, and should 
explain the reason(s) and/or provide supporting information for any 
change you recommend or proposal(s) you oppose. Where possible, you 
should reference the specific section or paragraph of the proposal you 
are addressing. Comments received after the close of the comment period 
(see DATES) will not be considered or included in the Administrative 
Record for the final rule.
    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. We invite your comments on how 
to make the proposed regulations easier to understand, as well as 
comments and information that could help us make the programs as 
effective as practical, including answers to questions such as the 
following:
    (1) Are the requirements in the proposed regulations clearly 
stated?
    (2) Does the proposed rule contain technical language or jargon 
that interferes with its clarity?
    (3) Does the format of the proposed rule (e.g., grouping and order 
of sections, use of headings, and paragraphing) make it clearer or less 
clear?
    (4) Would the proposed rule be easier to understand if it was 
divided into more (but shorter) sections?
    (5) Is the description of the proposed rule in the preamble section 
entitled ``Background and Discussion of the Proposed Rule'' helpful in 
understanding the proposed rule? How could this description be more 
helpful in making the proposed rule easier to understand?
    (6) What could be done to minimize the burdens and/or improve 
outcomes of the program, consistent with program objectives? Costs and 
benefits include both quantifiable measures (to the fullest extent that 
these can be usefully estimated) and qualitative measures of costs and 
benefits that are difficult to quantify, but nevertheless essential to 
consider. Please provide information that would help quantitatively 
asses the benefits and costs of this proposed rule.
    (7) What could be done to foster incentives for innovation, 
flexibility, consistency, predictability, the costs of enforcement and 
compliance (to the government, regulated entities, and the public)?

II. Executive Summary

Purpose of the Regulatory Action

    This rulemaking sets forth proposed revisions to implement 
amendments made to Section 17 of the Richard B. Russell National School 
Lunch Act (NSLA), 42 U.S.C. 1766, by section 221 of Public Law 111-296, 
the Healthy, Hunger-Free Kids Act of 2010 (HHFKA), for day care 
institutions participating in the Child and Adult Care Food Program 
(CACFP), schools serving infants and

[[Page 2038]]

young children, ages four and under, who participate in the School 
Breakfast Program (SBP) or National School Lunch Program (NSLP), and 
schools and institutions serving children of all ages who participate 
in the Special Milk Program (SMP).
    The amendments made by the HHFKA require the Department of 
Agriculture (USDA) through its CACFP to promote health and wellness in 
child care settings through guidance and technical assistance that 
focuses on nutrition, physical activity, and limiting electronic media 
use. More specifically, the amendments to the NSLA made by the HHFKA 
require USDA to review the CACFP meal patterns and make them consistent 
with (a) the most recent version of the Dietary Guidelines for 
Americans, (b) the most recent relevant nutrition science, and (c) 
appropriate authoritative scientific agency and organization 
recommendations. These updates should occur no less frequently than 
every 10 years. As the Dietary Guidelines and science evolve, USDA will 
continue to provide guidance, as needed, to support CACFP's nutrition 
and wellness goals. In formulating this proposed rule, the USDA relied 
primarily on recommendations included in the Dietary Guidelines for 
Americans, 2010, and Child and Adult Care Food Program: Aligning 
Dietary Guidance for All, a 2010 report prepared for USDA by the 
Institute of Medicine (IOM) of the National Academies, http://www.iom.edu/Reports/2010/Child-and-Adult-Care-Food-Program-Aligning-Dietary-Guidance-for-All.aspx. In reviewing the recommendations, USDA 
recognized that changes to the meal pattern must be sensitive to cost 
and practical application. With this in mind, a number of revisions to 
the meal pattern have been proposed, as well as optional best practices 
that facilities may choose to implement.

Summary of the Major Provisions of the Regulatory Action in Question

Program Purpose
    The HHFKA redefined the purpose of the CACFP as a program that 
provides aid to child and adult care institutions and family or group 
day care homes for the provision of nutritious foods that contribute to 
the wellness, healthy growth, and development of young children, and 
the health and wellness of older adults and chronically impaired 
disabled persons.
Infant Meal Patterns
    Under the proposed rule, the age groups for infants would be 0 
through 5 months, and 6 through 11 months. These proposed changes would 
allow us to better meet the recommendations of the American Academy of 
Pediatrics (AAP) and make the age groups consistent with the Special 
Supplemental Nutrition Program for Women, Infants, and Children (WIC). 
Additionally, to better meet the nutritional needs of infants, this 
proposed rule would revise the infant meal patterns to allow service of 
only breastmilk and/or infant formula to infants through 5 months of 
age, allow the introduction of additional meal components at 6 months 
of age (as developmentally appropriate), prohibit the service of fruit 
juice to infants through 11 months, and require the service of a fruit 
or vegetable in the infant snack pattern. In addition, as an incentive 
for encouraging breastfeeding and to better align program rules, this 
proposed rule would allow reimbursement for meals served to infants 
under six months of age when the mother directly breastfeeds her child 
at the child care facility. Meals containing breastmilk or iron-
fortified infant formula supplied by the parent or the facility are 
already eligible for CACFP reimbursement.
Child and Adult Meal Patterns
    To address the nutritional needs of older children, this proposed 
rule would include the addition of a new age group for children: 13 
through 18 years old. Additionally, to more closely align the meals 
served in CACFP with the 2010 Dietary Guidelines, the IOM's 2010 
report, Child and Adult Care Food Program: Aligning Dietary Guidance 
for All, and other USDA Child Nutrition Programs, this proposed rule 
would require that:
     The currently combined fruits and vegetables component be 
divided into a separate fruit component and vegetable component;
     At least one serving per day, across all eating occasions, 
of grains be whole grain-rich as described in the new definition of 
``whole grains'' under 7 CFR 226.2;
     Breakfast cereals conform to requirements as outlined by 
WIC, under Table 4 of 7 CFR 246.10(e)(1212);
     Grain-based desserts be excluded from being used to meet 
the grain component requirement;
     A meat or meat alternate be allowed as a substitute for up 
to one-half of the required grains at breakfast meals;
     Tofu be allowed as a meat alternate;
     Unflavored whole milk be served to children one year of 
age (12 through 23 months) and 1 percent or fat-free milk be served to 
children two and older and adults;
     Flavored milk served is fat-free only;
     Non-dairy milk substitutions, flavored or unflavored, that 
are nutritionally equivalent to milk, as outlined by the NSLP under 7 
CFR 210.10(d), may be served in lieu of fluid milk, if requested in 
writing by a child's parent or guardian or an adult participant;
     For adult participants only, yogurt be permitted as a 
fluid milk alternate up to one time per day across all eating 
occasions; and
     Frying be disallowed as an onsite preparation method for 
day care institutions.
    Additionally, as required by the HHFKA, this proposed rule would 
require that day care institutions make drinking water available 
throughout the day to all children upon their request.
Best Practices
    This proposed rule also includes best practices that day care 
facilities may choose to follow to further improve the nutritional 
quality of meals served. These proposed changes are intended to provide 
options for participants that will further improve the overall health 
and wellness of children and adults in day care settings.
Flavored Milk and Yogurt--Proposed Alternatives
    This proposed rule includes alternatives for the service of 
flavored milk and yogurt and seeks public comment on these options. It 
proposes to prohibit the service of flavored milk or, alternatively, 
limit the sugar content in flavored milk served to children 2 through 4 
years of age. The rule also seeks public comment on whether provisions 
limiting sugar in flavored milk served to children 5 years of age and 
older should be a required part of the CACFP meal patterns or a best 
practice that facilities may choose to adopt. The proposed rule's sugar 
limit for flavored milk is no more than 22 grams per 8 fluid ounces. 
Similarly, the rule invites public comment on whether sugar limits for 
yogurt should be a required part of the CACFP meal patterns or a best 
practice that facilities may choose to adopt. The proposed sugar limit 
for yogurt is no more than 30 grams of sugar per 6 ounces. The proposed 
rule presents these as Alternatives A1 and A2 for flavored milk for 
children 2 through 4 years of age; B1 and B2 for flavored milk for 
children 5 years of age and older; and C1 and C2 for yogurt for all age 
groups.

[[Page 2039]]

Other Child Nutrition Programs
    To maintain consistency across programs, this proposed rule would 
revise the SBP and NSLP meal patterns for infants and children under 5 
years of age to reflect the respective meal patterns proposed for 
CACFP. Additionally, this proposed rule would revise the fluid milk 
requirements and approved non-dairy milk substitutions for the SMP.
Cost and Benefits
    The proposed rule adopts a cost-neutral subset of recommendations 
from the 2010 IOM report because no additional meal reimbursement has 
been provided to institute the proposed changes. Due to the structure 
of the CACFP, day care institutions are sensitive to even modest 
increases in Program operation cost; therefore it is important to 
propose cost-neutral changes that do not discourage participation in 
the CACFP. Without increasing net costs to CACFP center and day care 
home providers, the proposed changes will increase the availability of 
key food groups in program meals, reduce the amount of solid fats and 
sugars offered, and give providers additional flexibility to offer 
meals that meet participants' nutritional requirements as well as their 
dietary preferences.

III. Background and Discussion of the Proposed Rule

Overview of the Preamble

    This rule proposes to revise the nutritional aspects of the CACFP 
based on statutory requirements and recommendations from a variety 
sources. The statutory requirements are in Section 17 of the NSLA, as 
amended by section 221 of the HHFKA. The recommendations are derived 
from the Dietary Guidelines for Americans, 2010, a 2010 report from the 
Institute of Medicine of the National Academies, and stakeholders. In 
addition, USDA exercised discretion in implementing these 
recommendations based on cost and operational issues. Throughout this 
preamble, the term ``providers'' refer to centers and day care homes 
that operate the Program.
    To assist the reader, the preamble that follows is organized to 
discuss the following topics:
     Background, which includes an overview of CACFP and the 
current meal patterns;
     HHFKA, which includes a discussion of the statutory 
provisions pertinent to the nutritional aspects of the CACFP;
     Updating the CACFP Meal Patterns, which includes a 
discussion of the recommendations of the Dietary Guidelines, the 
Institute of Medicine, and stakeholders;
     Proposed Meal Pattern Changes for CACFP;
     Best Practices;
     Flavored Milk and Yogurt;
     Proposed Miscellaneous Changes;
     Proposed Corresponding Changes to Other Child Nutrition 
Programs; and
     Technical Assistance.
Background
    The predecessor to the CACFP, the Child Care Food Program, was 
authorized as a pilot program in 1968 and became permanent in 1975. It 
provides cash assistance to States to assist child and adult care 
institutions and family or group day care homes in providing nutritious 
foods that contribute to the wellness, healthy growth, and development 
of children, and the health and wellness of older adults and 
functionally impaired adults. CACFP generally provides for more 
vulnerable populations: Children from birth through 18 years of age, 
adults 60 years of age or older, and functionally impaired adults of 
any age. In fiscal year 2013, the Program served over 3.67 million 
children and adults.
    As with the NSLP and SBP, in CACFP, the USDA establishes meal 
patterns with minimum food component and quantity requirements to 
facilitate the planning of well-balanced meals. Participating centers 
and day care homes providing meals meeting the minimum requirements are 
eligible for reimbursement for the meals served to eligible children 
and adults.
    Under current regulations found at 7 CFR 226.20, the daily meal 
patterns for children and adults require that minimum amounts of four 
food components be served. For example, lunches must contain:
     Fluid milk;
     Two or more vegetables or fruits, or a combination of 
both. Full-strength vegetable or fruit juice may be counted to meet not 
more than one-half of the fruit/vegetable component for lunch and 
supper meals;
     Whole grain or enriched bread; cornbread, biscuits, rolls, 
muffins, etc., made with whole grain or enriched meal or flour; whole 
grain or enriched pasta or noodle products such as macaroni, cereal 
grains such as rice, bulgur, or corn grits; or any combination of these 
foods; and
     Lean meat, poultry or fish; alternate protein products (as 
defined in Appendix A of 7 CFR part 226); cheese; an egg; cooked dry 
beans or peas; peanut butter; or any combination of these foods. These 
foods must be served in a main dish, or in a main dish and one other 
menu item, to meet this requirement. Cooked dry beans or dry peas may 
be used as the meat alternate requirement or as part of the vegetable/
fruit component but not as both in the same meal. Generally, nuts and 
seeds and their butters may be used to meet no more than one-half of 
the meat/meat alternative component.
    Existing Program regulations permit substitutions of foods if 
individual participants are unable, because of medical or other special 
dietary needs, to consume such foods. Substitutions because of medical 
needs are permissible only when supported by a statement from a 
recognized medical authority which includes recommended alternate 
foods.
    The CACFP meal patterns have not been significantly revised since 
the inception of the Program, and in that time nutritional concerns 
have shifted from those of malnutrition, to the overconsumption of 
calories, saturated fats, added fats, added sugar, and sodium and the 
under consumption of fiber and other essential vitamins. Such 
overconsumption has contributed to an epidemic of overweight, obesity, 
and other major health concerns affecting children, adolescents, and 
adults. The meal pattern revisions seek to address this new set of 
concerns regarding the health of America's children.
Healthy, Hunger-Free Kids Act of 2010
    In recognition of advances in nutritional science, section 221 of 
the HHFKA amended section 17 of the NSLA (42 U.S.C. 1766) to make a 
number of changes designed to improve the nutrition and wellness of 
children and adults participating in the CACFP.
    Purpose of the Program--Section 17(a) of the NSLA (42 U.S.C. 
1766(a)), as amended by the HHFKA, significantly expands the focus of 
CACFP from initiating and maintaining nonprofit food service programs 
to ensuring those programs provide nutritious foods that contribute to 
the wellness, healthy growth and development of young children and the 
health and wellness of adults in care. Section 17(a) also directs the 
USDA to encourage health and wellness and to provide guidance and 
technical assistance in a number of related areas including nutrition, 
physical activity, and limiting electronic media use.
    Meal Pattern Updates--Section 17(g)(2) of the NSLA (42 U.S.C. 
1766(g)(2)), requires USDA to review and, as appropriate, update the 
CACFP meal patterns to ensure that meals are

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consistent with the goals of the most recent Dietary Guidelines for 
Americans and promote the health of the populations served as indicated 
by the most recent and relevant nutrition science and appropriate 
authoritative scientific agency and organization recommendations. These 
updates must be made within 18 months of the review of the meal 
patterns and no less frequently than every 10 years thereafter. Section 
17(g)(2) further directs the USDA to conduct a review of the cost of 
any changes to child care centers and family day care homes.
    Exceptions for Special Dietary Needs/Emergency Shelters--While 
amendments made by the HHFKA will update meal pattern requirements in 
CACFP, the provisions also accommodate the need for exceptions to the 
requirements. As a result, Section 17(g)(2)(C) of the NSLA (42 U.S.C. 
1766(g)(2)(C)), now makes it clear that the minimum nutritional 
requirements established through this rulemaking process are not to 
prohibit participating institutions from substituting foods to 
accommodate individual participants who do not have disabilities, but 
who are medically certified as having special medical or dietary needs. 
Further, this paragraph allows the USDA to waive all or part of the 
meal pattern requirements for emergency shelters.
    Prohibition on Using Food as Reward or Punishment--Section 17(g)(3) 
of the NSLA (42 U.S.C. 1766(g)(3)), now explicitly reaffirms the USDA's 
long-standing policy that reimbursable meals must contribute to the 
development and socialization of children by providing food that is not 
used as a punishment nor a reward.
    Fluid Milk Requirement--Section 17(g)(4) of the NSLA, as amended by 
the HHFKA (42 U.S.C. 1766(g)(4)), requires that fluid milk served in 
the CACFP be consistent with the most recent version of the Dietary 
Guidelines for Americans and in cases of medical or special dietary 
needs allows the substitution of non-dairy beverages that are 
nutritionally equivalent to fluid milk (i.e., meet the nutritional 
standards of fortification for calcium, protein, vitamin A, vitamin D 
and other nutrients to levels found in cow's milk). The 2010 Dietary 
Guidelines recommend that persons two years of age and older consume 
low-fat (1 percent) or fat-free (skim) fluid milk. Therefore, fluid 
milk served in CACFP to participants two years of age and older must 
be: fat-free or low-fat milk, fat-free or low-fat lactose reduced milk, 
fat-free or low-fat lactose free milk, fat-free or low-fat buttermilk, 
or fat-free or low-fat acidified milk.
    Nondiscrimination Policy and Use of Donated Foods--Sections 
17(g)(5) and (g)(6) of the NSLA, as amended by the HHFKA (42 U.S.C. 
1766(g)(5) and (g)(6)), restate two long-standing statutory provisions. 
Section 17(g)(5) prohibits physical segregation or other discrimination 
against any person because of inability to pay and any overt 
identification by special tokens, tickets, etc. Section 17(g)(6) 
requires participating institutions to use foods donated by the 
Secretary, to the maximum extent practicable.
    Promoting Health and Wellness--Section 221 of the HHFKA also 
amended section 17 by adding a new paragraph (u) (42 U.S.C. 1766(u)), 
which requires USDA to encourage centers and family day care homes to 
provide daily opportunities for structured and unstructured age-
appropriate physical activity and to limit the use of electronic media. 
In addition, paragraph (u) requires participating institutions to make 
available to children, as nutritionally appropriate, potable water as 
an acceptable fluid for consumption throughout the day, including at 
meal times. While drinking water must be made available to children 
during meal times, the changes made to the NSLA by HHKFA do not include 
water as part of the reimbursable meal and thus, water may not be 
served in lieu of fluid milk.
    Technical Assistance--Finally, section 17(u) directs the USDA to 
assist participating centers and homes in complying with the 
nutritional and wellness recommendations through training, education 
materials, guidance, and technical assistance.
    Implementation of these statutory requirements is discussed in more 
detail in this preamble and in the proposed regulatory language. To 
assist the reader, the following table directs the reader to further 
discussions of these provisions in this proposed rule.

------------------------------------------------------------------------
         Statutory requirements          Location in proposed regulation
------------------------------------------------------------------------
Purpose of the Program.................  Miscellaneous Changes and
                                          226.20(a).
Meal Pattern Updates...................  Proposed Meal Pattern Changes
                                          for CACFP.
Exceptions for Special Dietary Needs/    Miscellaneous Changes.
 Emergency Shelters.
Prohibition on Using Food as a Reward    Miscellaneous Changes and
 or Punishment.                           226.20(q).
Fluid Milk Requirement (including        Proposed Meal Pattern Changes
 Substitutions).                          for CACFP and 226.20(a) and
                                          (i).
Nondiscrimination Policy and Use of      Miscellaneous Changes and
 Donated Foods.                           226.20(n).
Promoting Health and Wellness (Water)..  Miscellaneous Changes and
                                          226.25(i).
Technical Assistance...................  Technical Assistance.
------------------------------------------------------------------------

Updating the CACFP Meal Patterns
    Prior to the enactment of the HHFKA, the USDA commissioned the IOM 
to review the current CACFP meal patterns and provide recommendations 
that would improve the nutritional quality of meals and align them with 
the 2005 Dietary Guidelines, the most recent version available at the 
time. In the past, the IOM has also provided recommendations for WIC, 
and the NSLP and SBP.
    In November 2010, the IOM issued the report Child and Adult Care 
Food Program: Aligning Dietary Guidance for All (http://www.iom.edu/Reports/2010/Child-and-Adult-Care-Food-Program-Aligning-Dietary-Guidance-for-All.aspx). The IOM's recommendations encompass two 
distinct elements: Meal patterns and food specifications.
    The meal pattern recommendations are intended to align the meal 
patterns with the Dietary Guidelines and nutrient targets and allow the 
identification of meals that qualify for reimbursement. The IOM 
developed three meal pattern recommendations:
    1. Revise the meal pattern requirements for healthy infants up to 
one year of age to include only breastmilk or formula for infants under 
6 months of age; the gradual introduction of baby meats, cereals, 
fruits and vegetables beginning at age 6 months; and the omission of 
fruit juice at any time before the age of 1 year.
    2. Revise the meal pattern requirements for children 1 year and 
older and adults to increase the variety of fruits and vegetables, 
increase the proportion of whole grains, and decrease solid fats, added 
sugars, trans fats, and sodium.
    3. Allow CACFP facilities the option of serving one enhanced snack 
in the afternoon in place of a smaller snack in both the morning and 
the afternoon.

[[Page 2041]]

    In addition to the meal pattern recommendations, the IOM also 
recommended including overall food specifications in the meal patterns. 
Food specifications were intended to restrict certain types of foods 
and food preparation methods, increase the minimum amounts of food 
required to be served at each meal, and increase the amounts of whole 
grains, lean meats, and dark green, red, and orange vegetables served.
    The IOM concluded that implementation of all of its recommendations 
would increase the cost of meals by an average of 27 percent to 44 
percent for all age groups, except infants. The IOM acknowledged that 
the increased cost and the need for extensive technical assistance due 
to the complexity of the new meal patterns would present challenges to 
the successful implementation of the recommended meal pattern changes.
    To address these issues, the IOM recommended that the USDA consult 
with stakeholders regarding their ability to implement and monitor the 
recommendations. The IOM also recommended that USDA conduct additional 
research on the overall CACFP population to determine the foods 
currently served in CACFP in order to establish a baseline on which 
cost implications could be more accurately calculated.
    Upon release of the IOM's report and recommendations for changes to 
the CACFP meal pattern, the USDA consulted at national meetings and 
other venues with a number of CACFP stakeholders, including State 
agencies, professional organizations, and advocacy groups, to discuss 
the recommendations. The stakeholders expressed concerns centered 
primarily on the complexity of the recommendations and possible 
changes, the anticipated large increase in meal cost, and the expected 
result of increased difficulty in monitoring such changes. Concerns and 
alternative recommendations expressed by stakeholders were considered 
when drafting these proposed changes.
    After careful thought and consideration of the recommendations in 
the 2010 Dietary Guidelines, the IOM's recommendations, and stakeholder 
concerns, the USDA concluded that any proposed changes to the meal 
pattern must be implemented by providers without undue difficulty and 
be sensitive to cost.
    Thus, this proposed rule would adopt the following recommendations:
     Revise the infant age groups from three age groups to two 
age groups;
     Introduce solid foods to infants beginning at 6 months of 
age;
     Eliminate the service of fruit juice to infants of any 
age;
     Allow reimbursement for infant meals when the mother 
directly breastfeeds her child at the child care facility;
     Require a fruit or vegetable serving in the snack meal 
pattern for the 6 to 11 month infant age group;
     Allow additional grain options for infant snacks;
     Add a fourth age group (13 through 18 years) to the meal 
pattern for children;
     Separate the fruit and vegetable component for children 
and adults;
     Require that at least one grain serving per day, across 
all eating occasions, be whole grain or whole grain-rich;
     Require breakfast cereals to conform to WIC requirements;
     Prevent grain-based desserts from counting towards the 
grains component;
     Allow an optional meat or meat alternate to be served at 
breakfast in lieu of some grains;
     Allow tofu to be counted as a meat alternate;
     Allow yogurt to be used to meet the fluid milk requirement 
for adults only, no more than once per day; and
     Disallow frying as an onsite preparation method for day 
care institutions and facilities.
    These proposed changes are discussed in more detail under the 
section entitled, Proposed Meal Pattern Requirements for CACFP.
    Additionally, this rule seeks public comment on a number of 
provisions related to the service of flavored milk and yogurt in the 
CACFP meal pattern. It proposes to prohibit the service of flavored 
milk or, alternatively, limit the sugar content in flavored milk served 
to children 2 through 4 years of age. The rule also seeks public 
comment on whether provisions limiting sugar in flavored milk served to 
children 5 years of age and older should be a required part of the 
CACFP meal patterns or a best practice that facilities may choose to 
adopt. The proposed rule's sugar limit for flavored milk is no more 
than 22 grams per 8 fluid ounces. Similarly, the rule invites public 
comment on whether sugar limits for yogurt should be a required part of 
the CACFP meal patterns or a best practice that facilities may choose 
to adopt. The proposed sugar limit for yogurt is no more than 30 grams 
of sugar per 6 ounces. The proposed rule presents these as Alternatives 
A1 and A2 for flavored milk for children 2 through 4 years of age; B1 
and B2 for flavored milk for children 5 years of age and older; and C1 
and C2 for yogurt for all age groups. These alternatives are discussed 
in more detail under the section entitled Flavored Milk and Yogurt.
    As discussed below, the proposed rule does not adopt the IOM 
recommendations relating to weekly meal patterns, specifications for 
certain foods, and enhanced snacks for reasons related to the increased 
cost and efficient operation of the Program.
Weekly Meal Patterns and Certain Food Specifications
    The IOM recommended many food specifications which would limit or 
prohibit certain types of foods and/or how foods may be prepared. Food 
specifications included such things as limiting fruit juice and highly 
processed meats throughout the week and prohibiting cheese products/
foods and deep fried or pre-fried vegetables. While some food 
specifications were adopted, others were deemed overly complicated to 
implement at this time and/or challenging to monitor. For example, the 
IOM recommended limiting processed meats. The proposed rule does not 
adopt this recommendation at this time due to the difficulty involved 
in clearly defining processed meats. However, comments on how processed 
meats could be defined and the feasibility, practicality, and 
challenges associated with implementing such a limitation are 
encouraged.
    In addition, the IOM recommended weekly meal patterns, similar in 
nature to the NSLP. Many stakeholders expressed concern over the weekly 
meal pattern because it would increase recordkeeping and monitoring 
complexity. Additionally, many children are not in full-time child care 
and therefore, weekly meal patterns and certain food specifications 
would not achieve the anticipated benefit. Further, implementing these 
recommendations would likely have a negative impact on the 
administration of the Program. CACFP is offered in diverse types of 
facilities, mostly small or very small, with varying degrees of 
staffing, training in meal planning and preparation, and resources. 
Adding weekly menus was determined to add unnecessary complexity. 
Therefore, it is important that the CACFP meal patterns are easy to 
understand, implement, and monitor in a wide variety of settings.
Enhanced Snack
    The recommendation to give facilities the option of serving one 
enhanced snack in the afternoon in place of a smaller snack in both the 
morning and afternoon was not adopted for inclusion

[[Page 2042]]

in this proposed rule. The IOM suggested that the enhanced snack option 
would be particularly appropriate for older children in afterschool 
programs and for adults because the size of a normal snack may not be 
sufficient to meet their nutritional needs. However, we determined that 
an enhanced snack with larger components would prove more costly than 
snacks currently approved. Additionally, because the USDA does not have 
the authority to change the reimbursement structure for meals served, 
the enhanced snack option would place an increased economic burden on 
institutions and facilities. Lastly, section 122 of the HHFKA (which 
was enacted after the IOM report was completed) extended the at-risk 
afterschool meals option to all States, thus providing an immediate 
solution to the need for larger meals in the late afternoon or evening 
for older children.
    The USDA realizes many facilities may want to go further when it 
comes to providing healthy meals to CACFP participants. Therefore, we 
have outlined some best practices based on both the IOM recommendations 
and the Dietary Guidelines that facilities may strive for when choosing 
to serve healthier options. A number of these best practices represent 
recommendations or food specifications not adopted as requirements for 
reasons of cost or complexity. USDA applauds those facilities that find 
ways to incorporate these best practices into their meal service and 
requests comments on how to encourage more facilities to implement the 
best practices.
    Lastly, comments on other ways to improve the meals served to 
children in care without negatively impacting Program participation are 
encouraged. Specifically, comments on the reasonableness of 
implementing separate meal pattern requirements for day care centers 
and day care homes are requested. Centers would include those providing 
outside-school-hours-care, at-risk afterschool care, and adult day 
care, as well as homeless shelters. Comments on whether such an 
approach would be beneficial and the feasibility, practicality, and 
challenges of implementing separate requirements are encouraged.
Proposed Meal Pattern Changes for CACFP
Proposed Changes to the Infant Meal Pattern
    The field of pediatric nutrition has increased greatly in recent 
years and with it, a better understanding of what is necessary to meet 
the needs of growing and developing infants. Because the Dietary 
Guidelines do not address children under the age of two, the AAP serves 
as the leading authority for children's developmental needs from birth 
through 23 months. The IOM recommendations pertaining to infants took 
the AAP recommendations into consideration. IOM recommendations for the 
infant meal pattern would require fewer components than the current 
meal pattern for lunch and supper meals, but more components for 
snacks.
    Infant Age Groups and the Introduction of Solid Foods--Current 
regulations establish three infant age groupings: 0 through 3 months, 4 
through 7 months, and 8 through 11 months (7 CFR 226.20(b)). These age 
groups permit the introduction of solid foods in breakfasts, lunches or 
suppers as early as 4 months, if the infant is developmentally ready.
    The IOM noted that the first Feeding Infants and Toddlers Study 
(FITS), 2002, a comprehensive assessment of food and nutrient intakes 
of infants and toddlers, found that almost 30 percent of infants were 
fed complementary foods before the age of 4 months, when infants should 
be consuming only breastmilk or formula. The AAP advises delaying the 
introduction of complementary foods until after 6 months of age. To 
accommodate these concerns, the IOM recommended that infant age 
groupings be revised from the current three age groups to two age 
groups. Under the recommended 0 through 5 month age group, infants 
under 6 months of age would receive only breastmilk or infant formula. 
The 6 month through 11 month age group would allow for the gradual 
introduction of solid foods beginning at 6 months of age. This change 
would also ensure the CACFP age groupings are consistent with infant 
age groups established by WIC.
    Accordingly, the proposed rule would consolidate the CACFP age 
groups for infants into the two recommended age groups and would allow 
for the gradual introduction of solid foods beginning at 6 months of 
age. These changes are found at Sec.  226.20(b).
    Breastfeeding--Current meal patterns only allow day care home 
providers who breastfeed their own infants to claim reimbursement for 
the meal if the provider is eligible to claim her own children's meals 
at the time of the feeding. The IOM recommended that additional 
incentives be developed to support breastfeeding. USDA agrees with the 
IOM's recommendation. Therefore, this proposed rule would allow any 
child care facility to receive reimbursement for meals when the mother 
directly breastfeeds her child at the child care facility. Facilities 
are encouraged to make available a quiet, private area for mothers who 
come to the facility to breastfeed.
    Fruits and Vegetables--The IOM made two recommendations relating to 
the service of fruits and vegetables to infants. First, the IOM 
recommended eliminating the service of fruit juice to infants of any 
age. Current regulations permit fruit juice to be served in the snack 
meal pattern for infants 8 through 11 months. The second recommendation 
would require a fruit or vegetable serving in the snack meal pattern 
for the 6 through 11 month age group. These recommendations ensure 
infants are provided more access to fruits and vegetables without the 
consumption of sugars and low-nutrient dense calories that fruit juice 
provides. These recommendations would bring the CACFP meal patterns 
into alignment with the food packages for infants in the WIC Program.
    Accordingly, the proposed rule would require a fruit or vegetable 
serving in the snack meal pattern for the 6 through 11 month age group 
and eliminate fruit juice from the meal patterns for infants. These 
proposed changes are found at Sec.  226.20(b).
    Grains--Feedback from CACFP stakeholders and providers included a 
request to allow additional grain options, as developmentally 
appropriate, for infant snacks, primarily ready-to-eat cereals which 
are often served but not counted towards the grain requirement. The IOM 
recommended limiting grain options for infants to bread and/or crackers 
only. To better meet the needs of child care providers and because 
allowing additional grain alternatives would not result in an increased 
cost to the provider, this proposed rule also would allow ready-to-eat 
cereal as a grain for older infants. Accordingly, this provision is 
included in Sec.  226.20(b) of the proposed rule.
    Meat and Meat Alternates--Current meal patterns allow infants to be 
served cheese, cottage cheese, or a cheese food or spread beginning at 
the age of 8 months. Stakeholders requested that the proposed meal 
pattern also allow yogurt to be served to infants. However, the IOM 
recommends that no cow's milk or cow's milk byproducts be introduced to 
infants until 12 months of age. We concur with the IOM's 
recommendation. This proposed rule would eliminate the option of 
serving cheese, cottage cheese, or cheese food or spread to infants and

[[Page 2043]]

will continue to prohibit serving yogurt to infants.
    Summary--The proposed changes to the infant meal patterns are 
reflected in the following chart and are found at Sec.  226.20(b)(5) of 
this proposed rule.

------------------------------------------------------------------------
                                 Birth through 5
           Infants                   months          6 through 11 months
------------------------------------------------------------------------
Breakfast, Lunch, or Supper.  4-6 fluid ounces      6-8 fluid ounces
                               breastmilk \1\ or     breastmilk \1\ or
                               formula \2\.          formula \2\.
                                                    1-4 tablespoons
                                                     infant cereal \2\,
                                                     meat, fish,
                                                     poultry, egg yolk,
                                                     cooked dry beans,
                                                     or cooked dry peas
                                                     or a combination of
                                                     any of the above.
                                                    1-2 tablespoons
                                                     vegetable \3\ or
                                                     fruit \3\.
Snack.......................  2-4 fluid ounces      2-4 fluid ounces
                               breastmilk \1\ or     breastmilk \1\ or
                               formula \2\.          formula \2\.
                                                    \1/4\-\1/2\ ounce
                                                     bread,\ 4\ cracker
                                                     \4\, or ready-to-
                                                     eat breakfast
                                                     cereal \4\.
                                                    1-2 tablespoons
                                                     vegetable \3\ or
                                                     fruit \3\.
------------------------------------------------------------------------
\1\Breastmilk or formula, or portions of both, may be served; however,
  it is recommended that breastmilk be served in place of formula from
  birth through 11 months. For some infants who regularly consume less
  than the minimum amount of breastmilk or formula per feeding, a
  serving of less than the minimum amount of breastmilk or formula may
  be offered with additional breastmilk or formula offered at a later
  time if the infant will consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Fruit or vegetable, or portions of both, may be served. Fruit and
  vegetable juices may not be served.
\4\ A serving of grains must be whole grain, whole grain-rich, enriched
  meal, or enriched flour.

Proposed Changes to the Meal Pattern for Children and Adults
    Age Groups--Current regulations establish CACFP meal patterns for 
three age groups for children: 1 through 2 years, 3 through 5 years, 
and 6 through 12 years (Sec.  226.20(c)). Children older than 12 years 
of age are not addressed directly, though providers are directed to 
follow the 6 through 12 year old meal pattern when serving older 
children.
    To remain consistent with age groups used by NSLP and SBP, the IOM 
recommended that the children's age groups be revised from the current 
three age groups to four age groups: 1 year, 2 through 4 years, 5 
through 13 years, and 14 through 18 years.
    This proposed rule would retain the existing three age groups (1 
through 2 years, 3 through 5 years, and 6 through 12 years). As noted 
above, revising the age groups would result in some children being 
moved into the next age group, thus requiring larger minimum amounts of 
foods to be served. Because the meal reimbursement would remain 
unchanged, requiring larger amounts of food to be served would likely 
increase the cost of operating the Program for child care institutions 
and facilities. However, the proposal would adopt the IOM's 
recommendation to add a fourth age group (13 through 18 years). While 
creating a 13 through 18 year age group better reflects the 
characteristics of the population served by CACFP, USDA is not 
proposing to modify the meal pattern requirements for these children at 
this time because doing so would increase the cost of operating the 
Program. Instead, the meal pattern for children ages 13 through18 is 
the same as the meal pattern for children ages 6 through 12. 
Recognizing that the nutritional needs of this age group may vary, 
recommended accommodations will be addressed through guidance. 
Accordingly, the age group modification can be found at Sec.  226.20(c) 
of this proposed rule.
    Fruits and Vegetables--Current breakfast and lunch meal patterns, 
found at Sec.  226.20(a) and (c), include one combined fruit and 
vegetable component, which allows providers to meet the minimum 
quantities by providing fruits, vegetables, or a combination of both. 
In addition, full-strength fruit juice may be counted to meet the 
breakfast requirement and, in the case of lunch and supper, it may be 
counted towards no more than one-half of the minimum quantity required 
for the fruit and vegetable component. Finally, two different fruits 
and/or vegetables are required to be served at lunch and supper meals.
    The Dietary Guidelines recommends that all Americans consume more 
fruits and vegetables, because they are a major contributor of vitamins 
and minerals, including vitamin A, vitamin C, vitamin K, potassium, 
folate, and magnesium, all of which are under consumed in the American 
population as a whole. Additionally, the increased consumption of 
fruits and vegetables is associated with a reduced risk of 
cardiovascular disease and can be protective against certain types of 
cancer.
    For these reasons, the IOM determined that it is important to not 
only increase the amount of fruits and vegetables offered in meals, but 
also to increase the variety of those served and limit the servings of 
those high in solid fats and added sugars. To accomplish these goals, 
the IOM also recommended that fruit and vegetables be split into two 
separate components and recommended food specifications which included 
limiting how fruits and vegetables can be prepared and served.
    This proposed rule would adopt the IOM's recommendation to separate 
the current fruit and vegetable component into two separate components 
for lunch and supper meals and snacks. To maintain consistency with the 
SBP, the recommendation to separate the fruit and vegetable component 
for breakfast meals was not adopted. Additionally, to maintain cost 
neutrality, the total amount of fruits and vegetables required at each 
meal would remain the same as under the current regulations. In order 
to remain consistent with SBP, for breakfast meals, the provider may 
choose to serve the fruit component, the vegetable component, or a 
combination of both.
    Additionally, this proposed rule would no longer require providers 
to serve two different types of vegetables or fruits at lunch and 
supper meals, as currently required, because the fruit and vegetable 
component would be split into two components.
    The proposed rule also would allow fruit juice or vegetable juice 
to comprise the entire fruit or vegetable component for all meals. With 
the fruit and vegetable component separated into two components with no 
increase in the total serving size, requiring that juice comprise no 
more than half of the component would result in very small servings. 
However, this proposed rule would not allow fruit juice and vegetable 
juice to be served at the same meal, and would allow only one beverage 
(fluid milk, fruit juice, or vegetable juice) to be served at snacks.
    Accordingly, the proposed rule changes to the vegetable component 
are found at Sec.  226.20(a)(2), the fruit component at Sec.  
226.20(a)(3), and the meal pattern at Sec.  226.20(c).
    Grains--Current meal patterns for all age groups, found at Sec.  
226.20(a) and Sec.  226.20(c), require that all grains served

[[Page 2044]]

are whole grain or enriched and/or fortified.
    The Dietary Guidelines state that half of the recommended total 
grain intake should be whole grains. Whole grains are an excellent 
source of nutrients, including magnesium, selenium, iron, B vitamins, 
and dietary fiber. Additionally, whole grain consumption may reduce the 
risk of cardiovascular disease. Recognizing concerns such as whole 
grain product availability and the difficulty in identifying whole 
grain products based on product labeling, however, the IOM recommended 
that at least one-half of all grains served over the course of the day 
be whole grain or whole grain-rich. Other grains must be enriched. The 
IOM's recommendation that a portion of the grains served be whole grain 
or whole grain-rich is consistent with requirements in the NSLP, SBP, 
and WIC.
    Based on these recommendations, this proposed rule would require 
that at least one grain serving per day, across all eating occasions, 
be whole grain or whole grain-rich. The proposed rule would adopt the 
definition of whole grain used in the NSLP at Sec.  210.2, which 
defines whole grain to mean foods that consist of the intact, ground, 
cracked, or flaked grain seed and whose principal anatomical 
components--the starchy endosperm, germ and bran--are present in the 
same relative proportions as they exist in the intact grain seed. Whole 
grain-rich foods are those that are not 100 percent whole grain but 
generally contain at least 50 percent whole grains, while the remaining 
grains are enriched. Because the whole grain content of food products 
is not always easily identifiable on a product label, the Food and 
Nutrition Service (FNS) will provide additional guidance on evaluation 
of grain products as needed.
    Additionally, in order to reduce the amount of sugars consumed, the 
IOM recommended prohibiting breakfast cereals containing more than 21.2 
grams of sugar per 100 grams (less than or equal to 6 grams of sugar 
per dry ounce of cereal) from being served. WIC has already adopted 
similar requirements for breakfast cereals, and WIC State agencies 
maintain State-specific lists of breakfast cereals that meet these 
requirements. For these reasons, implementing this recommendation 
should be relatively straightforward. Therefore, this proposed rule 
would require that breakfast cereals meet the WIC requirements. This 
means that breakfast cereals must: Contain a minimum of 28 mg of iron 
per 100 grams of dry cereal; contain no more than 21.2 grams of sucrose 
and other sugars per 100 grams of dry cereal (no more than 6 grams per 
dry ounce); contain a minimum of 51 percent whole grains (using dietary 
fiber as an indicator); meet the regulatory definitions for ``low 
saturated fat'' at 21 CFR 101.62 (no more than one gram of saturated 
fat per Reference Amount Customarily Consumed (RACC)) and ``low 
cholesterol'' (less than 20 mg cholesterol per RACC); bear quantitative 
trans fat labeling; and contain no more than 6.5 grams of total fat per 
RACC and no more than 0.5 grams of trans fat per RACC. Breakfast 
cereals will be defined by the Food and Drug Administration (FDA) 
definition in 21 CFR 170.3(n)(4) for ready-to-eat, instant, and regular 
hot cereals.
    Finally, the IOM recognized that many grain-based dessert products 
are a source of solid fats and added sugar. Therefore, the IOM 
recommended that such products be limited to no more than one serving 
per week across all eating occasions. Because weekly meal patterns will 
not be implemented, the proposed rule would not allow grain-based 
desserts to be counted towards the grains component. More information 
regarding what would be considered a grain-based dessert will be 
provided by FNS as needed during implementation. Accordingly, the 
proposed grain changes are found at Sec.  226.20(a)(4) and Sec.  
226.20(c) of this proposed rule.
    Meat and Meat Alternates--Current regulations, found at Sec.  
226.20(a) and Sec.  226.20(c), require a meat or meat alternate 
component in lunches and suppers only; there is no meat or meat 
alternate component requirement in the breakfast or snack meal pattern. 
The meat or meat alternate requirement can be met by serving age-
appropriate quantities of lean meat, poultry, or fish; alternate 
protein products; cheese; eggs; cooked dry beans or peas; peanut 
butter, soy nut butter, or other nut or seed butters; peanuts, soy nuts 
or seeds; or yogurt. Tofu is not currently credited as a meat alternate 
in CACFP, although it is for school programs.
    In recognition that meat and meat alternates are good sources of a 
host of vitamins and minerals, including B vitamins, vitamin E, zinc, 
magnesium, and iron, the IOM recommended that a meat or meat alternate 
be required at breakfast a minimum of three times per week, in lieu of 
additional grains. The IOM also recommended allowing tofu to be served 
as a meat alternate. To address concerns about meats as a source of 
solid fats, the IOM outlined a number of food specifications including: 
Serving only lean meats, legumes, and nuts; limiting processed, fried, 
pre-fried, and higher fat meats; serving only natural cheeses; and 
restricting the preparation methods (for example, requiring that the 
skin be removed from poultry before serving).
    The proposed rule generally adopts the recommendation to include a 
meat or meat alternate in the breakfast meal pattern; however, to 
maintain cost neutrality, this proposed rule would not require that the 
breakfast meal include a meat or meat alternate at least three times a 
week, as recommended. Rather, the proposal would allow a meat or meat 
alternate to be served in lieu of up to one-half of the grains 
requirement at breakfast. This option would provide more flexibility to 
providers, especially those providing care for older adults, who may 
have to limit their consumption of carbohydrates due to medical reasons 
such as diabetes.
    This rule also would allow tofu to be used to meet all or part of 
the meat or meat alternate components in accordance with FNS guidance. 
Tofu would be defined to mean a commercially prepared soy-bean derived 
food made by a process in which soybeans are soaked, ground, mixed with 
water, heated, filtered, coagulated, and formed into cakes. Basic 
ingredients are whole soybeans, one or more food-grade coagulates 
(typically a salt or an acid), and water. Accordingly, the proposed 
meat and meat alternate changes are found at Sec.  226.2 and Sec.  
226.20(a)(5) and (c) of this proposed rule.
    Fluid Milk--Section 221 of the HHFKA amended section 17(g)(4) of 
the NSLA (42 U.S.C. 1766(g)(4)) to require that all milk served in the 
CACFP be consistent with the most recent version of the Dietary 
Guidelines. The Dietary Guidelines recommends low-fat (1 percent) and 
fat-free milk (skim) for children over the age of two and adults. 
Section 17(g)(4) of the NSLA also allows non-dairy milk substitutions 
in the case of children and adults who cannot consume fluid milk due to 
medical or other special dietary needs other than a disability. Such 
substitutions must be nutritionally equivalent to fluid milk and meet 
specified nutritional standards. Providers may, but are not required 
to, provide beverages identified by the State as acceptable 
substitutions based on a written statement of a medical authority or 
the parent or legal guardian or adult participant that identifies the 
medical or special dietary need that requires the substitution. 
Finally, section 17(g)(4) of the NSLA makes it clear that day care 
facilities are responsible for any expenses incurred in exercising this 
option that exceed Program reimbursement. It should be noted that this 
authority applies to children and adults with medical or

[[Page 2045]]

special dietary needs other than a disability. In accordance with 
Federal law, day care facilities serving handicapped children or adults 
with one or more disabilities that restrict their diets under 7 CFR 
15b.3, continue to be required to make appropriate substitutions based 
on a written statement by a licensed physician.
    Because the Dietary Guidelines do not address children under the 
age of two, the IOM was tasked with providing appropriate 
recommendations based on other current nutritional science for this 
population. The IOM recommended that children 1 year of age (12 through 
23 months) are served whole milk only, which is consistent with the 
most recent recommendation of the AAP.
    Additionally, to allow flexibility in menu planning, the IOM 
recommended that yogurt be allowed as an alternate to either fluid milk 
or meat/meat alternates no more than once per day for children older 
than 2 years of age and adults.
    To implement these provisions of the HHFKA, the USDA issued a 
memorandum entitled ``Child Nutrition Reauthorization 2010: Nutrition 
Requirements for Fluid Milk and Fluid Milk Substitutions in the Child 
and Adult Care Food Program, Questions and Answers'' (CACFP 21-2011 
REVISED, September 15, 2011, http://www.fns.usda.gov/sites/default/files/CACFP-21-2011.pdf). The memorandum advised State agencies that 
milk served in the CACFP must be consistent with the most recent 
version of the Dietary Guidelines for Americans as noted above. 
Therefore, fluid milk served in CACFP to participants 2 years of age 
and older must be: Fat-free or low-fat milk, fat-free or low-fat 
lactose reduced milk, fat-free or low-fat lactose free milk, fat-free 
or low-fat buttermilk, or fat-free or low-fat acidified milk.
    This proposed rule reflects the provisions set forth in the 
memorandum. In addition, this proposed rule would require children 1 
year of age (12 through 23 months) to be served unflavored whole milk 
only. Furthermore, to ensure consistency with the NSLP and the SBP, 
this proposed rule would require flavored milk served be fat-free only.
    The memorandum discussed above further advised State agencies that 
in the case of children and adults who cannot consume fluid milk due to 
medical or other special dietary needs, other than a disability, non-
dairy beverages may be served in lieu of fluid milk. Non-dairy 
beverages must be nutritionally equivalent to milk and meet the 
nutritional standards for fortification of calcium, protein, vitamin A, 
vitamin D, and other nutrients to levels found in cow's milk, as 
outlined in the NSLP regulations at Sec.  210.10(m)(3). CACFP State 
agencies have the discretion to identify appropriate substitutions that 
meet these requirements. Based on the memorandum, parents or guardians 
may now request in writing non-dairy milk substitutions, as described 
above, without providing a medical statement. The written request must 
identify the medical or other special dietary need that restricts the 
diet of the child. Such substitutions are at the option and the expense 
of the facility. One-year-old children who require a beverage other 
than whole milk must follow the individual and fluid milk substitution 
requirements as outlined in the memorandum described above and now 
found in Sec.  226.20(i) introductory text and (i)(1) of this proposed 
rule.
    To summarize these changes, the proposed rule would:
     Require only unflavored whole milk to be served to 
children 1 year of age;
     Require low-fat or fat-free milk to be served to children 
2 years and older and adults;
     Require that flavored milk served be fat-free only; and
     Allow non-dairy beverages that are nutritionally 
equivalent to milk to be served in lieu of fluid milk for participants 
with medical or other special dietary needs.
    Lastly, this proposed rule would adopt the IOM's recommendation to 
allow yogurt to be used to meet the fluid milk requirement for adults 
only, no more than once per day. Additionally, yogurt may still be used 
as a meat alternate no more than once per day for all ages. At this 
time, the USDA will not extend the allowance of yogurt as a fluid milk 
substitute for children. Milk provides a wealth of nutrients growing 
children need such as vitamins A and D; comparable quantities of these 
nutrients are not found in commercially available yogurts at this time.
    Additionally, there is concern about the types of beverages that 
will be served at meals if yogurt is served as the milk component (i.e. 
sugary beverages, soft drinks, etc). Comments from the general public 
regarding this recommendation are encouraged. For additional discussion 
of sugar limits on flavored milk and yogurt, please see the section of 
this preamble entitled Flavored Milk and Yogurt. Accordingly, the 
proposed milk and milk substitution changes are found at Sec. Sec.  
226.20(a), 226.20(c), and 226.20(i).
    Food Preparation--The IOM provided a number of recommendations that 
would restrict or eliminate certain foods in the meal patterns, or 
limit how foods could be prepared. Because current CACFP meal patterns 
do not include nutrient specifications, this was seen as a way to limit 
the amount of saturated fats and sodium contained in meals. USDA has 
decided not to adopt various restrictions on individual foods due to 
the complexity of implementation. However, this proposed rule would 
prohibit facilities from frying foods (i.e., cooking in added fat or 
oil) as a method of onsite preparation. Purchased foods that are pre-
fried, flash-fried, or par-fried by the manufacturer may still be 
served, but must be reheated using a method other than frying. This 
approach is being taken because prohibiting all fried, pre-fried, 
flash-fried, and par-fried foods from being served would lead to 
increased food and preparation costs. Additional guidance on what 
constitutes ``frying'' would be provided by FNS prior to 
implementation. Comments are requested regarding the feasibility, 
practicality, and any challenges associated with such a restriction.
    Summary--The proposed changes to the child and adult meal patterns 
are reflected in the following charts and are found at Sec.  226.20(c) 
of this proposed rule.

                                               Breakfast Meal Pattern for Children and Adult Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Food components and food items \1\         Ages 1-2                Ages 3-5               Ages 6-12              Ages 13-18               Adult
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk \2\                       4 fluid ounces........  6 fluid ounces........  8 fluid ounces.......  8 fluid ounces.......  8 fluid ounces.
Vegetables, fruits, or portions of   \1/4\ cup.............  \1/2\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
 both \3\.
Grains 4 5:
    Whole grain or enriched bread..  \1/2\ slice...........  \1/2\ slice...........  1 slice..............  1 slice..............  2 slices.

[[Page 2046]]

 
    Whole grain or enriched bread    \1/2\ serving.........  \1/2\ serving.........  1 serving............  1 serving............  2 servings.
     product, such as biscuit,
     roll, muffin.
    Whole grain, enriched or         \1/4\ cup.............  \1/4\ cup.............  \1/2\ cup............  \1/2\ cup............  1 cup.
     fortified Cereal,\6\ cereal
     grain, and/or pasta.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all three components for a reimbursable meal. Offer versus serve is an option only for adult participants.
\2\ Must be unflavored whole milk for children age one. Multiple options related to flavored milk are presented for public comment for children age 2
  years and older. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of fluid
  milk no more than once per day.
\3\ Pasteurized full-strength juice may be used to meet the requirement. Fruit and vegetable juices may not be served at the same meal.
\4\ At least one serving per day, across all eating occasions, must be whole grain or whole grain-rich. Grain-based desserts do not count towards
  meeting the grains requirement.
\5\ Meat/meat alternates may be used to meet up to 50 percent of the grains requirement. One ounce of meat/meat alternates is equivalent to one cup/
  serving of grains.
\6\ Breakfast cereals must conform to the requirements of the WIC program as outlined in 7 CFR 246.10(e)(12).


                                            Lunch and Supper Meal Pattern for Children and Adult Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Food components and food items \1\         Ages 1-2                Ages 3-5               Ages 6-12              Ages 13-18               Adult
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk \2\.....................  4 fluid ounces........  6 fluid ounces........  8 fluid ounces.......  8 fluid ounces.......  8 fluid ounces \3\.
Meat/meat alternates...............
Edible portion as served:
    Lean meat, poultry, or fish....  1 ounce...............  1\1/2\ ounces.........  2 ounces.............  2 ounces.............  2 ounces.
    Tofu, soy products, or           1 ounce...............  1\1/2\ ounces.........  2 ounces.............  2 ounces.............  2 ounces.
     alternate protein products \4\.
    Cheese.........................  1 ounce...............  1\1/2\ ounces.........  2 ounces.............  2 ounces.............  2 ounces.
    Large egg......................  \1/2\.................  \3/4\.................  1....................  1....................  1.
    Cooked dry beans or peas.......  \1/4\ cup.............  \3/8\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
    Peanut butter or soy nut butter  2 Tbsp................  3 Tbsp................  4 Tbsp...............  4 Tbsp...............  4 Tbsp.
     or other nut or seed butters.
    Yogurt, plain or flavored        4 ounces or \1/2\ cup.  6 ounces or \3/4\ cup.  8 ounces or 1 cup....  8 ounces or 1 cup....  8 ounces or 1 cup.
     unsweetened or sweetened.
The following may be used to meet
 no more than 50 percent of the
 requirement:
    Peanuts, soy nuts, tree nuts,    \1/2\ ounce = 50%.....  \3/4\ ounce = 50%.....  1 ounce = 50%........  1 ounce = 50%........  1 ounce = 50%.
     or seeds, as listed in program
     guidance, or an equivalent
     quantity of any combination of
     the above meat/meat alternates
     (1 ounce of nuts/seeds = 1
     ounce of cooked lean meat,
     poultry or fish).
Vegetables \5\.....................  \1/8\ cup.............  \1/4\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
Fruits \5\.........................  \1/8\ cup.............  \1/4\ cup.............  \1/4\ cup............  \1/4\ cup............  \1/2\ cup.
Grains \6\:
    Whole grain or enriched bread    \1/2\ slice...........  \1/2\ slice...........  1 slice..............  1 slice..............  2 slices.
    Whole grain or enriched bread    \1/2\ serving.........  \1/2\ serving.........  1 serving............  1 serving............  2 servings.
     product, such as biscuit,
     roll, muffin
    Whole grain, enriched or         \1/4\ cup.............  \1/4\ cup.............  \1/2\ cup............  \1/2\ cup............  1 cup.
     fortified Cereal \7\, cereal
     grain, and/or pasta
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all five components for a reimbursable meal. ``Offer versus serve'' is an option only for children in at-risk afterschool care centers
  and adult participants.
\2\ Must be unflavored whole milk for children age 1. Multiple options related to flavored milk are presented for public comment for children age 2
  years and older. For adult participants a serving of 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces
  of fluid milk no more than once per day.
\3\ A serving of fluid milk is optional for suppers served to adult participants.
\4\ Alternate Protein Products must meet the requirements in Appendix A to Part 226.
\5\ Pasteurized full-strength juice may be used to meet the requirement. Fruit and vegetable juices may not be served at the same meal.
\6\ At least one serving per day, across all eating occasions, must be whole grain or whole grain-rich. Grain-based desserts do not count towards
  meeting the grains requirement.
\7\ Breakfast cereals must conform to the requirements of the WIC program as outlined in 7 CFR 246.10(e)(12).


[[Page 2047]]


                                                 Snack Meal Pattern for Children and Adult Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Food Components and food items \1\         Ages 1-2                Ages 3-5               Ages 6-12              Ages 13-18               Adult
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk 2 3.....................  4 fluid ounces........  4 fluid ounces........  8 fluid ounces.......  8 fluid ounces.......  8 fluid ounces.
Meat/meat alternates Edible portion
 as served:
    Lean meat, poultry, or fish....  \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
    Tofu, soy products, or           \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
     alternate protein products \4\.
    Cheese.........................  \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
    Large egg......................  \1/2\.................  \1/2\.................  \1/2\................  \1/2\................  \1/2\.
    Cooked dry beans or peas.......  \1/8\ cup.............  \1/8\ cup.............  \1/4\ cup............  \1/4\ cup............  \1/4\ cup.
    Peanut butter or soy nut butter  1 Tbsp................  1 Tbsp................  2 Tbsp...............  2 Tbsp...............  2 Tbsp.
     or other nut or seed butters.
    Yogurt, plain or flavored        2 ounces or \1/4\ cup.  2 ounces or \1/4\ cup.  4 ounces or \1/2\ cup  4 ounces or \1/2\ cup  4 ounces or \1/2\
     unsweetened or sweetened.                                                                                                      cup.
    Peanuts, soy nuts, tree nuts,    \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
     or Seeds.
Vegetables \3\.....................  \1/2\ cup.............  \1/2\ cup.............  \3/4\ cup............  \3/4\ cup............  \1/2\ cup.
Fruits \3\.........................  \1/2\ cup.............  \1/2\ cup.............  \3/4\ cup............  \3/4\ cup............  \1/2\ cup
Grains \5\:
    Whole grain or enriched bread..  \1/2\ slice...........  \1/2\ slice...........  1 slice..............  1 slice..............  1 slice
    Whole grain or enriched bread    \1/2\ serving.........  \1/2\ serving.........  1 serving............  1 serving............  1 serving
     product, such as biscuit,
     roll, muffin.
    Whole grain, enriched or         \1/4\ cup.............  \1/3\ cup.............  \3/4\ cup............  \3/4\ cup............  \3/4\ cup
     fortified Cereal,\6\ cereal
     grain, and/or pasta.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Select two of the five components for a reimbursable snack. Only one of the two components may be a beverage.
\2\ Must be unflavored whole milk for children age 1. Multiple options related to flavored milk are presented for public comment for children age 2
  years and older. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of fluid
  milk no more than once per day.
\3\ Only one beverage (fluid milk, vegetable juice or fruit juice) may be served. Pasteurized full-strength juice must be used to meet the requirement.
\4\ Alternate Protein Products must meet the requirements in Appendix A to Part 226.
\5\ At least one serving per day, across all eating occasions, must be whole grain or whole grain-rich. Grain-based desserts do not count towards
  meeting the grains requirement.
\6\ Breakfast cereals must conform to the requirements of the WIC program as outlined in 7 CFR 246.10(e)(12).

Best Practices
    The USDA acknowledges that the mandated changes for the meal 
patterns are limited due to increased cost and practicality issues. 
However, providers are encouraged to take the initiative in providing 
healthier meals to children. According to the U.S. Department of Health 
and Human Services (National Center for Health Statistics, 2011), 
obesity rates of preschoolers have more than doubled over the last four 
decades, and one in five children will be overweight or obese by the 
time they turn age 6. Because of this, numerous parents, public and 
private agencies and organizations, and the White House have shown a 
renewed interest in the health of the Nation's children. In June 2011, 
the First Lady launched ``Let's Move! Child Care,'' an effort to work 
with child care providers to help our youngest children get off to a 
healthier start. This initiative uses several tools to promote healthy 
eating, physical activity, and limiting screen time.
    Because child care providers have the ability to influence positive 
development so early in a child's life, those looking to make further 
nutritional improvements are encouraged to follow the proposed 
guidelines discussed below when serving meals to children. These 
guidelines reflect recommendations from the IOM and the AAP and would 
allow caregivers to ensure that children and adults are getting the 
optimal benefit from the meals they receive while in care.
    These best practices are included in the regulatory text, but they 
are optional. Due to the potential of increased food and labor costs 
associated with implementing these guidelines, they would be met at the 
sole discretion of the provider. These guidelines would not be required 
in order to receive Federal reimbursement for meals served. Also, 
failure to meet the best practices could not be used as a serious 
deficiency finding (7 CFR 226.6(c)) or as the basis for other 
disciplinary actions for homes or centers. No additional Federal 
reimbursement would be available to providers who meet these 
guidelines. Comments on strategies to encourage providers to implement 
the identified best practices are requested.
    Infants--The IOM recommended that providers support and encourage 
breastfeeding by providing mothers access to breastfeeding materials 
and educational opportunities, encouraging mothers to supply breastmilk 
for their infant while in day care, and providing mothers who come to 
the day care facility with a quiet, private area to breastfeed. The 
USDA encourages all providers to adopt these recommendations. (As noted 
above, this proposed rule would provide reimbursement for breastmilk--
only meals when the mother comes to the day care facility to breastfeed 
her infant, when no other component is required to be served.)
    Fruits and Vegetables--Fruits and vegetables provide a variety of 
vitamins and minerals needed for growth and health maintenance. 
Exposing children to a variety of fruits and vegetables throughout the 
week is not only good for them but may serve as the foundation for 
healthier habits later in life. Therefore, the USDA encourages 
providers to offer at least one serving

[[Page 2048]]

each of dark green vegetables, red or orange vegetables, and legumes 
once per week. Additionally, we encourage providers to ensure that 
every snack includes at least one serving of a fruit or vegetable.
    As the IOM recognized, some products and preparation methods used 
for fruits and vegetables can be a source of added sugars and solid 
fats. To limit the intake of added sugars and solid fats, the USDA 
recommends that providers adopt the IOM's recommendations and limit the 
consumption of fruit juice to no more than once per day for children.
    In addition, while facilities would not be permitted under this 
proposed rule to prepare foods onsite by frying them, store-bought, 
catered, or pre-fried foods can still contribute large amounts of 
calories and saturated fat to a meal. Therefore, facilities are 
encouraged to limit all fried and pre-fried foods (including fried and 
pre-fried vegetables) to no more than once per week across all eating 
occasions.
    Grains--The IOM recommended that at least one-half of all grains 
served are whole grain-rich. To meet this goal, providers are 
encouraged to prepare at least two servings of whole grain-rich grains 
each day. This is an increase from the required one serving of whole 
grain-rich grains per day.
    Fluid Milk--The IOM identified flavored milk as a source of added 
sugar for children of all ages. In light of this, the USDA recommends 
that providers serve only unflavored milk to all children, regardless 
of age. (For additional discussion of flavored milk, please see the 
section of this preamble entitled Flavored Milk and Yogurt.)
    Meat and Meat Alternates--The Dietary Guidelines recommends 
consuming only lean meats. The IOM identified meats as a source of 
solid fats and outlined a number of food specifications to address this 
concern, including: Serving only lean meats, legumes, and nuts; serving 
only natural cheese; limiting processed meats to no more than once per 
week across all eating occasions; and limiting fried and pre-fried 
foods (including meats) to no more than once per week across all eating 
occasions. As noted above, this proposed rule prohibits frying foods 
onsite at the facility. In addition, under these best practices, USDA 
recommends that providers adopt all of the other IOM recommendations 
regarding meat and meat alternates.
    Summary of Best Practices--In summary, the best practices, as 
outlined in this section, are:
    Infants
     Encourage mothers to breastfeed their infants;
     Provide materials and other educational opportunities to 
breastfeeding mothers;
     Encourage mothers to supply breastmilk for their infants 
while in day care; and
     Provide mothers who come to the day care facility a quiet, 
private area to breastfeed.
Fruits and Vegetables
     Limit the consumption of fruit juice to no more than one 
serving per day;
     Make at least one of the two required components of every 
snack a fruit or a vegetable;
     Avoid or limit the service of fried and pre-fried foods to 
no more than one serving per week; and
     Provide at least one serving each of dark green 
vegetables, red/orange vegetables, and legumes per week.
Grains
     Provide at least two servings of whole grain-rich grains 
per day (an increase over the required one serving); and
     Serve breakfast cereals that contain no more than 6 grams 
of sugar per serving.
Milk
     Serve only unflavored milk to all participants, regardless 
of age.
Meat and Meat Alternates
     Serve only lean meats, nuts, and legumes;
     Avoid or limit the service of processed meats to no more 
than once per week;
     Avoid or limit the service of fried and pre-fried foods to 
no more than one serving per week; and
     Serve only natural cheeses.
    Accordingly, the proposed rule includes these best practices in 
Sec.  226.20(e).
Flavored Milk and Yogurt
    The IOM identified flavored milk as a source of added sugars. To 
limit added sugars, the IOM recommended that flavored milk be limited 
and served only to adults and children 5 years of age and older 
participating in at-risk afterschool programs, and that flavored milk 
not be allowed to be served to children of any age in traditional child 
care or emergency shelters.
    The IOM also made recommendations to limit the amount of sugar in 
flavored milk and in yogurt. For flavored milk, the IOM recommended no 
more than 22 grams per 8 fluid ounces serving. For yogurt, the IOM 
recommended no more than 40 grams of sugar per 8 ounce serving. USDA 
acknowledges that foods high in sugar such as some flavored milk and 
some yogurt can contribute excess calories to a child's diet, and 
agrees that the sugar limits recommended for these products by the IOM 
seem reasonable based on products currently available in the 
marketplace. We are especially interested in obtaining public input on 
(1) the proposed prohibition or limitation of serving flavored milk to 
children 2 through 4 years of age (2) whether sugar limits on flavored 
milk served to children 5 years of age and older should be adopted in 
the final rule as a meal pattern requirement or as an optional best 
practice that facilities may choose to implement at their discretion 
and (3) whether sugar limits on yogurt should be adopted in the final 
rule as a meal pattern requirement or as an optional best practice that 
facilities may choose to implement at their discretion. Therefore, this 
preamble and the proposed regulatory text present these as specific 
alternatives for comment, as discussed below.
    For flavored milk served to children 2 through 4 years,
     Alternative A1 would prohibit the service of flavored milk 
to children 2 through 4 years of age. This provision would be 
considered a requirement under the meal pattern components, which could 
result in corrective action and/or disallowance of meals if not 
followed;
     Alternative A2 would require that flavored milk served to 
children 2 through 4 years of age contain no more than 22 grams of 
sugar per 8 fluid ounce serving. This provision would be considered a 
requirement under the meal pattern components, which could result in 
corrective action and/or disallowance of meals if not followed.
    For flavored milk served to children 5 years and older,
     Alternative B1 would require that flavored milk, when 
served to children 5 years and older and adults, contain no more than 
22 grams of sugar per 8 fluid ounce serving. This provision would be 
considered a requirement under the meal pattern components, which could 
result in required corrective action and/or disallowance of meals if 
not followed;
     Alternative B2 would recommend that flavored milk, when 
served to children 5 years of age and older and adults, contain no more 
than 22 grams of sugar per 8 fluid ounce serving. This recommendation 
would be included as a best practice; providers would be encouraged to 
adhere to these

[[Page 2049]]

limitations but would not be required to do so.
    For yogurt served to all age groups,
     Alternative C1 would require that yogurt contain no more 
than 30 grams of sugar per 6 ounce serving. We have converted the IOM's 
recommendation from 40 grams of sugar per 8 ounce serving because 
commercially available yogurt is typically sold in 6 ounce containers. 
This provision would be considered a requirement under the meal pattern 
components, which could result in required corrective action and/or 
disallowance of meals if not followed;
     Alternative C2 would recommend that yogurt contain no more 
than 30 grams of sugar per 6 ounce serving. This recommendation would 
be included under best practices; providers would be encouraged to 
adhere to these limitations but would not be required to do so.
    Accordingly, these alternatives can be found in the proposed rule 
in Sec.  226.20(r).
Proposed Miscellaneous Changes
    Program Purpose--Section 17(a) of the NSLA (42 U.S.C. 1766(a)), was 
amended by the HHFKA, and redefined CACFP as a program authorized to 
provide aid to child and adult care providers and family or group day 
care homes for the provision of nutritious foods that contribute to the 
wellness, healthy growth, and development of young children, and the 
health and wellness of older adults and chronically impaired disabled 
persons. Previously, the purpose of the Program was to enable providers 
to integrate a nutritious food service with organized care services for 
enrolled participants. This proposed rule would revise the purpose of 
the program to reflect the expanded purpose. Accordingly, the proposed 
change can be found at Sec.  226.1 of this proposed rule.
    Meal Pattern Exceptions--Section 17(g)(2)(C) of the NSLA (42 U.S.C. 
1766(g)(2)(C)), as amended by the HHFKA, provides for meal pattern 
flexibility in two areas, special dietary needs and the needs of 
emergency shelters. Under this paragraph, the minimal nutrition 
requirements must not prohibit providers from substituting foods to 
accommodate the medical or other special dietary needs of individual 
participants. This provision is found at Sec.  226.20(i)(2) of the 
proposed rule.
    The HHFKA also amended the NSLA by providing new authority allowing 
the USDA to waive all or part of the requirements of the meal patterns 
for emergency shelters. This proposed rule does not codify the waiver 
authority for emergency shelters, as it is authority that the USDA may 
exercise, and not State or local program operators. The USDA does not 
anticipate the meal pattern requirements in this proposed rule would 
pose a particular challenge for emergency shelters. However, if 
challenges arise, the emergency shelter or the sponsoring organization 
of the shelter may request a waiver through the State agency for FNS 
Regional Office approval.
    Section 17(g)(3) of the NSLA (42 U.S.C. 1766(g)(3)), as amended by 
the HHFKA, requires providers to ensure that the reimbursable meal 
service contributes to the development and socialization of enrolled 
children by restricting the use of food as a punishment or reward. The 
amendment reflects the long-standing position of the USDA and is 
included in Sec.  226.20(r) of this proposed rule.
    Water--Section 221 of the HHFKA amended section 17 of the NSLA by 
adding paragraph (u)(2), which requires that child care centers, family 
day care homes, at-risk afterschool programs, and shelters 
participating in the CACFP make drinking water available to children 
for consumption throughout the day. USDA issued an implementation 
memorandum advising State agencies of this new provision, ``Child 
Nutrition Reauthorization 2010: Water Availability in the Child and 
Adult Care Food Program'' (CACFP 20-2011, May 11, 2011, http://www.fns.usda.gov/sites/default/files/CACFP-20-2011.pdf). The memorandum 
advised State agencies that CACFP centers and day care homes must make 
drinking water available to children, as nutritionally appropriate, 
throughout the day, including at meal times. Water should be made 
available to children to drink upon their request, but does not have to 
be available for children to self-serve. While drinking water must be 
made available to children during meal times, it is not part of the 
reimbursable meal and may not be served in lieu of fluid milk. While 
not specifically required for adult participants, adult day care 
centers are encouraged to ensure adult participants also have access to 
drinking water throughout the day.
    The 2010 Dietary Guidelines for Americans do not establish a daily 
minimum intake for water consumption, but do recommend that water be 
consumed daily. States and sponsors should encourage facilities to 
serve water with snacks when no other beverage is being served, and in 
lieu of other high calorie, sweetened beverages (juice drinks, soda, 
sports drinks, etc.) that are served outside of meal times.
    Water can be made available to children in a variety of ways 
including but not limited to: Having cups available next to the kitchen 
sink faucet, having water pitchers and cups set out, or simply 
providing water to a child when it is requested. USDA expects that this 
provision can be instituted with no or very low cost. However, 
circumstances may arise in which safe drinking water is not readily 
available in a facility. In these instances, purchasing water for 
children may be considered a reasonable and allowable cost for 
participating facilities. The purchase of water will continue to be an 
unallowable cost in CACFP facilities if purchased for employee 
consumption.
    Accordingly, this proposed rule would require child care centers 
and day care homes to make safe drinking water available to children 
upon their request, throughout the day. The proposed changes can be 
found at Sec.  226.25(h).
    Food Substitutions Supplied by Parents--Program regulations at 7 
CFR 226.7(m) and FNS Instruction 784-3, ``Reimbursement for Meals 
Provided by Parents in the Child Care Food Program'' (October 14, 
1982), currently prohibit the reimbursement of meals in which any of 
the required components are provided by a parent or guardian, unless 
such food substitutions are specifically related to a medical 
disability. To better accommodate children with special dietary needs 
that do not rise to the level of a medical disability, this proposed 
rule would allow reimbursement for meals that contain up to one 
component that has been provided by a parent or guardian. Providing a 
meal component is at the option of the parent or guardian and may not 
be required by the provider. Additionally, providers are not required 
to serve meal components provided by a parent or guardian if the 
substitution is not related to a medical disability. The proposed 
changes can be found at Sec. Sec.  226.6(m) and 226.20(i).
    Family-Style Meals--Family-Style meal service provides a further 
opportunity to enhance the nutritional goals of CACFP by encouraging a 
pleasant eating environment. It promotes mealtime as a learning 
experience by allowing children to serve themselves from common 
platters of food, with assistance from supportive adults, and providing 
educational activities that are centered around food. FNS Instruction 
783-9, Revision 2, ``Family Style Meal Service in the Child and Adult 
Care Food Program'' (May 3, 1993), outlines a number of practices that 
a center or day care home should follow when utilizing this option,

[[Page 2050]]

including placement of a sufficient amount of prepared food on each 
table and active encouragement of children to serve themselves the full 
required portion of each component. This proposed rule would codify 
these practices at Sec.  226.20(o).
    Offer Versus Serve--CACFP allows Offer Versus Serve as a meal 
service option in adult day care centers. It enables adult participants 
to choose to decline some of the offered food. It helps centers reduce 
food waste and costs, while maintaining the nutritional integrity of 
the reimbursable meal served. This proposed rule would extend the 
option of offer versus serve to children receiving meals in at-risk 
afterschool care centers. It would allow a child to decline up to two 
food items offered as part of a reimbursable lunch or supper. The 
proposed changes can be found at Sec.  226.20(p)(1)(ii).
    Technical Amendments--Finally, since this proposed rule revises 
Sec.  226.20 in its entirety, a number of sections have been restated, 
without change. These sections include existing paragraphs (e) 
Temporary unavailability of milk, (f) Continuing unavailability of 
milk, (i) Special variations, (j) Meal planning, (k) Time of meal 
service, (l) Sanitation, and (m) Donated commodities. In addition, 
paragraphs (n) Plentiful foods and (o) Additional provisions have been 
removed as they are now obsolete.
Proposed Corresponding Changes to Other Child Nutrition Programs
    School Breakfast Program--To maintain consistency across programs, 
the meal pattern requirements for SBP meals to infants and children 1 
through 4 years of age will be revised to reflect the proposed 
breakfast meal requirements for infants and children 1 through 4 years 
of age for children participating in the CACFP. This proposed rule 
would remove the meal pattern charts and component description for 
children under 5 years of age and instead refer to Sec.  226.20(c) for 
meal pattern quantity and component requirements. Children ages 5 years 
and up will continue to follow the SBP meal pattern requirements as 
currently outlined in 7 CFR part 220. Comments from the general public 
are encouraged as to whether referring to the CACFP regulations for the 
meal patterns for children under 5 years of age is sufficient or 
whether meal pattern components, quantities, and charts should be 
reproduced in SBP regulations, as they are currently.
    Additionally, for reasons of consistency with the CACFP meal 
pattern, this proposed rule would eliminate the offer versus serve 
option for children under 5 years of age. All proposed changes are 
discussed and outlined above under the section titled ``Proposed Meal 
Pattern Changes for CACFP.'' The minimum serving size of required 
components remains unchanged. Accordingly, this proposed rule would 
amend Sec.  220.8(o) to incorporate these changes by reference.
    National School Lunch Program--To maintain consistency across 
programs, the meal pattern requirements for NSLP schools providing 
snacks and lunches to infants and children 1 through 4 years of age 
will be revised to reflect the proposed meal pattern requirements for 
snacks and lunches for infants and children participating in the CACFP 
outlined in this rule. Children ages 5 years and up will continue to 
follow the NSLP meal pattern requirements as currently outlined. 
Comments from the general public are encouraged as to whether referring 
to the CACFP regulations for the meal patterns for children under 5 
years of age is sufficient or whether meal pattern components, 
quantities, and charts should be reproduced in NSLP regulations, as 
they are currently.
    Additionally, for reasons of consistency with the CACFP meal 
pattern, this proposed rule would eliminate the offer versus serve 
option for lunches served to children under 5 years of age. Schools 
will continue to have the option of serving lunch meals to children 
under 5 years of age across two serving periods (i.e., splitting the 
reimbursable meal into two smaller meals). All proposed changes are 
discussed and outlined above under the section titled ``Proposed Meal 
Pattern Changes for CACFP.'' The minimum serving size of required 
components remains unchanged. Accordingly, this proposed rule would 
amend Sec.  210.10(o) and (p) to incorporate these changes by 
reference.
    Special Milk Program--To maintain consistency across programs, this 
proposed rule would require schools and institutions participating in 
the Special Milk Program to serve only low-fat and fat-free milk to 
children over the age of 2 years. Additionally, this proposed rule 
would require that flavored milk served be fat-free. The proposed 
changes are found at Sec.  215.7a of this proposed rule.
Technical Assistance
    The IOM recommended that the USDA provide extensive technical 
assistance to State agencies, sponsors, and day care providers to 
implement the recommended meal pattern changes. Key aspects of this 
assistance would include menu planning, purchasing, food preparation, 
and recordkeeping.
    Section 221 of the HHFKA requires the USDA to provide technical 
assistance to participating child care centers and day care homes in 
complying with the new nutritional requirements. As a first step in 
this technical assistance, USDA has coordinated with the U.S. 
Department of Health and Human Services to develop recommendations, 
guidelines, and best practices for day care providers that are 
consistent with the nutrition, physical activity, and wellness 
requirements of the HHFKA and this regulation. Based on this 
collaboration, the handbook ``Nutrition and Wellness Tips for Young 
Children: Provider Handbook for the Child and Adult Care Food Program'' 
was published in January 2013 (http://www.fns.usda.gov/nutrition-and-wellness-tips-young-children-provider-handbook-child-and-adult-care-food-program). The Handbook includes 15 fact sheets addressing 
nutrition, physical activity, and screen time. It will be updated as 
needed upon publication of the final rule.
    In addition, USDA conducted needs assessment research to identify 
additional materials and training that would be useful to CACFP 
entities; the final report will be available in 2015. Pertinent 
resources and guidance materials will be developed based on the 
research results. FNS continues to partner with the National Food 
Service Management Institute to develop and provide appropriate 
training materials for CACFP. To further extend the reach of the 
technical assistance provided, comments are requested on strategies 
that can be used for providing additional technical assistance on the 
new meal pattern requirements.

IV. Procedural Matters

Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all cost 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health, and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both cost and benefits, of 
reducing cost, of harmonizing rules, and of promoting flexibility. This 
proposed rule has been determined to be significant and was reviewed by 
the Office of Management and Budget.

[[Page 2051]]

Regulatory Impact Analysis

    As required for all rules that have been designated as significant 
by the Office of Management and Budget, a Regulatory Impact Analysis 
(RIA) was developed for this proposal. A summary is presented below. 
The full RIA is included in the supporting documents of the rule docket 
at www.regulations.gov.
Need for Action
    This rule proposes changes to the meal pattern requirements for the 
Child and Adult Care Food Program (CACFP), pursuant to section 221 of 
the Healthy, Hunger-Free Kids Act of 2010 (HHFKA). Pursuant to the 
statute, changes are made to improve participants' diets by reducing 
the prevalence of inadequate and excessive intakes of food, nutrients, 
and calories. The rule would implement a cost-neutral subset of CACFP 
meal pattern recommendations for infants, children, and adults 
contained in the 2010 Institute of Medicine report, Child and Adult 
Care Food Program: Aligning Dietary Guidance for All.
Costs
    The baseline for this regulatory impact analysis is the current 
cost of food to providers in homes and centers that participate in the 
CACFP. The proposed rule more closely aligns the meals served in CACFP 
with the Dietary Guidelines in an essentially cost-neutral manner, as 
HHFKA did not provide any funding for additional or increased meal 
reimbursements in CACFP. USDA estimates that the rule will result in a 
very small decrease in the cost for CACFP providers to prepare and 
serve meals to Program participants,\1\ and may result in a small, 
temporary increase in labor and administrative costs to implement the 
rule. Therefore, we project no meaningful net change in cost as a 
result of the rule.
---------------------------------------------------------------------------

    \1\ The proposed rule would no longer allow grain based desserts 
to contribute to the meal patterns' grain requirement. The $101.1 
million 4-year cost reduction shown in Table 1 includes the savings 
to CACFP providers of substituting program-creditable grains in 
place of more expensive grain-based desserts. To the extent that 
providers continue to serve similar desserts on a non-creditable 
basis, their actual costs of serving meals to Program participants 
will exceed the cost of serving meals that meet Program 
requirements. If we do not count the current cost of grain-based 
desserts as a savings in this analysis, then the estimated net cost 
of the rule is +10.2 million over 4 years, even closer to cost 
neutral than shown here, though more costly to CACFP providers. 
Given the considerable potential savings from at least reducing the 
number of grain based desserts served, providers, on average, should 
be able to implement the proposed rule with no increase in cost.

               Table 1--Summary Table of Net Costs to CACFP Providers of Proposed Rule Provisions
        [By fiscal year, in millions of dollars--change from baseline. Negative numbers = cost savings.]
----------------------------------------------------------------------------------------------------------------
                                       2015            2016            2017            2018            Total
----------------------------------------------------------------------------------------------------------------
Net Effect of Infant Provisions.           -$4.0           -$4.1           -$4.3           -$4.4          -$16.8
    Infant Formula Change.......           -$7.5           -$7.7           -$8.0           -$8.2          -$31.4
    Infant Snack--Fruits and                $3.5            $3.6            $3.7            $3.8           $14.6
     Vegetables.................
    On-site Breastfeeding                    (*)             (*)             (*)             (*)             (*)
     Provision..................
Separating Fruits and Vegetables             (*)             (*)             (*)             (*)             (*)
Net Effect of Grain Provisions..          -$17.3          -$18.0          -$18.6          -$19.4          -$73.3
    New Whole Grain Requirement.            $9.0            $9.3            $9.7           $10.0           $38.0
    Disallowing Desserts........          -$26.3          -$27.3          -$28.3          -$29.4         -$111.3
    WIC Compliant Cereals.......             (*)             (*)             (*)             (*)             (*)
Fluid Milk Provision............           -$2.6           -$2.7           -$2.8           -$2.9          -$11.0
Other Provisions................             (*)             (*)             (*)             (*)             (*)
    Rule Impact on NSLP, SBP,                (*)             (*)             (*)             (*)             (*)
     and SMP....................
    Potable Water Provision.....             (*)             (*)             (*)             (*)             (*)
    Flavored Milk and Yogurt                 (*)             (*)             (*)             (*)             (*)
     Option.....................
    Disallowing Frying as                    (*)             (*)             (*)             (*)             (*)
     Preparation Method.........
    Increased Flexibility in                 (*)             (*)             (*)             (*)             (*)
     Foods Served to CACFP
     Participants...............
Net Cost of Rule to CACFP                 -$23.9          -$24.8          -$25.7          -$26.7         -$101.1
 Providers......................
Baseline Federal Reimbursement            $3,209          $3,332          $3,455          $3,584         $13,581
 and USDA Food Assistance \2\...
Net Cost of Rule as a Percent of           -0.7%           -0.7%           -0.7%           -0.7%           -0.7%
 Federal Reimbursement..........
----------------------------------------------------------------------------------------------------------------
* Cost or savings is too uncertain to be estimated with precision (and is almost certainly too small to affect
  the estimate meaningfully); see the relevant sections for in-depth discussions of the cost implications of
  each provision.
Note: Sums may not match exactly due to rounding.

    Much of the net cost savings in the table results from disallowing 
grain-based desserts as a reimbursable meal component as recommended by 
IOM; however, even without counting this provision as a cost savings, 
the rule remains essentially cost neutral. Other provisions of the rule 
that are expected to have a small cost savings include:
---------------------------------------------------------------------------

    \2\ Projections prepared by FNS for the development of the FY 
2014 President's Budget. These figures are included in this table 
only to demonstrate that any potential cost impact of the rule (or, 
indeed, of any individual provision in the rule) is an extremely 
small percentage of overall Federal reimbursements to CACFP 
providers.
---------------------------------------------------------------------------

     The proposed changes to the meal patterns for infants. A 
change in the age groups and formula quantities mean that slightly less 
formula will be served under the proposed meal patterns than under 
current rules.
     Changes in the fat content of fluid milk served to 
children. The proposed rule would codify statutory requirements that 
fluid milk served to CACFP participants two years of age and older be 
low-fat or fat-free. Because lower fat content milks tend to cost less 
per unit than higher fat content milks, this change will slightly 
reduce the cost of CACFP meals.
     Provisions that increase provider flexibility in serving 
meals, such as allowing a meat or meat alternate to be served in lieu 
of up to one-half of the bread and grains requirement at breakfast, 
allowing tofu as a meat alternate, and allowing yogurt to be used to 
meet the fluid milk requirement for adults, no more than once per day.
    Provisions that are expected to or may slightly increase the cost 
of serving meals that meet the proposed requirements include:

[[Page 2052]]

     The addition of fruits and vegetables as a component of 
infant snacks starting at 6 months.
     The proposed requirement that at least one bread or grain 
serving per day be whole grain or whole grain rich. Because whole grain 
products tend to cost more than their refined grain substitutes, this 
provision is expected to have a modest upward effect on the cost of 
providing CACFP meals.
     The proposed separation of fruits and vegetables into 
separate meal components. Although this is not expected to result in an 
increase in the quantities of fruits and vegetables offered, unit costs 
may increase if providers choose to buy smaller pre-packed servings of 
fruits and vegetables in order to serve both a fruit and a vegetable at 
the same meal.
     Provisions that limit provider flexibility in serving 
meals, such as the disallowing of frying as an on-site food preparation 
method.
Benefits
    By updating Program regulations to make them more consistent with 
the goals of the most recent Dietary Guidelines for Americans, the 
proposed rule will ensure that meals served at CACFP centers and homes 
better reflect current nutrition science; increase the availability of 
key food groups; better meet the nutritional needs of infants, 
children, and adults; and foster healthy eating habits.
    The proposed changes are expected to positively impact the 
nutritional outcomes of all groups of CACFP participants. The infant 
pattern will help to ensure that infants will exclusively breast- or 
formula-feed throughout their first six months of life, as recommended 
by the American Academy of Pediatrics (AAP). Separating fruits and 
vegetables into two components increases the variety of foods that 
CACFP participants are able to consume at meal times. Disallowing 
desserts as reimbursable meal components, disallowing frying as an on-
site food preparation method, and modifying the fluid milk requirements 
will decrease the amounts of solid fats and added sugars consumed by 
CACFP participants through Program meals. Requiring that one serving of 
grains be whole-grain-rich will increase the whole grain consumption of 
CACFP participants, which, as IOM notes in its report, is very low 
across all CACFP participant age groups.
    The rule also increases flexibility for CACFP providers to better 
meet the nutritional requirements and dietary preferences of 
participants. It allows a meat or meat alternate to be served in lieu 
of up to one-half of the bread and grains requirement at breakfast, 
allows tofu as a meat alternate, and allows yogurt to be used to meet 
the fluid milk requirement for adults, no more than once per day.

Regulatory Flexibility Act

    This proposed rule has been reviewed with regard to the 
requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-
612). FNS certifies that this proposed rule will not have a significant 
economic impact on a substantial number of small entities, including 
child care providers and school districts. While this proposed rule 
makes several revisions to the CACFP meal patterns based on 
recommendations of the Institute of Medicine (IOM), the provisions 
proposed in this rulemaking are of minimal cost and would be achievable 
without creating a hardship for any of the small entities that 
administer and participate in the Program.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments, and on the private sector. Under section 202 of UMRA, FNS 
must generally prepare a written statement, including a cost benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, or tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. When this statement is needed, section 205 of UMRA generally 
requires FNS to identify and consider a reasonable number of regulatory 
alternatives, and adopt the most cost effective or least burdensome 
alternative that achieves the objectives of the rulemaking.
    This proposed rule does not contain Federal mandates (under the 
regulatory provisions of Title II of the UMRA) that would result in 
cost to State, local, or Tribal governments or to the private sector of 
$100 million or more in any one year.

Federalism Summary Impact Statement

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where these actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under section (6)(b)(2)(B) of Executive Order 13121. FNS has 
considered the potential impact of this proposed rule on State and 
local governments and has determined that it does not have federalism 
implications. This proposed rule would not impose substantial or direct 
compliance costs on State and local governments. Therefore, a 
federalism summary impact statement is not required.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
``Civil Justice Reform.'' This rulemaking, when published as a final 
rule, is intended to have a preemptive effect with respect to any State 
or local laws, regulations or policies which conflict with its 
provisions. This rulemaking is not intended to have a retroactive 
effect. Prior to any judicial challenge to the provisions or 
application of the of this rulemaking, all applicable administrative 
procedures under Sec. Sec.  210.18(q), 226.6(k), 226.6(l), 226.16(l), 
226.22, 235.11(f), and 7 CFR parts 3016 and 3019 must be exhausted. 
This includes any administrative procedures provided by State or local 
governments.

Civil Rights Impact Analysis

    FNS has reviewed this proposed rule in accordance with USDA 
regulations 4300-4, ``Civil Rights Impact Analysis,'' and 1512-1, 
``Regulatory Decision Making Requirements.'' After a careful review of 
the proposed rule's intent and provisions, FNS has determined that this 
proposed rule is not intended to limit or reduce in any way the ability 
of protected classes of individuals to receive benefits on the basis of 
their race, color, national origin, sex, age, or disability, nor is it 
intended to have a differential impact on minority-owned or operated 
business establishments, and woman-owned or operated business 
establishments that participate in the programs affected by this 
rulemaking.

Executive Order 13175

    Executive Order 13175 requires Federal agencies to consult and 
coordinate with Tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

[[Page 2053]]

    In spring 2011, FNS offered opportunities for consultation with 
Tribal officials or their designees to discuss the impact of the 
Healthy, Hunger-Free Kids Act of 2010 (HHFKA) on tribes or Indian 
Tribal governments. FNS coordinated five consultation sessions in total 
that provided the opportunity to address Tribal concerns related to the 
Child Nutrition Programs:

1. HHFKA Webinar and Conference Call--April 12, 2011
2. Mountain Plains--HHFKA Consultation, Rapid City, South Dakota--March 
23, 2011
3. Tribal Self-Governance Annual Conference, Palm Springs, California--
May 2, 2011
4. National Congress of American Indians Mid-Year Conference, 
Milwaukee, Wisconsin--June 14, 2011
5. HHFKA Webinar and Conference Call--June, 22, 2011

    Reports from these consultations are part of the USDA annual 
reporting on Tribal consultation and collaboration. FNS will respond in 
a timely and meaningful manner to Tribal government requests for 
consultation concerning this rulemaking. Currently, FNS provides 
regularly scheduled quarterly consultation sessions as an opportunity 
for collaborative conversations with Tribal officials and their 
designees.
Paperwork Reduction Act
    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
part 1320) requires that the Office of Management and Budget (OMB) 
approve all collections of information by a Federal agency from the 
public before they can be implemented. Respondents are not required to 
respond to any collection of information unless it displays a current 
valid OMB control number. Information collections in this proposed rule 
have been previously approved under OMB #0584-0055. There is no new 
information collection burden associated with this proposed rule.
E-Government Act Compliance
    FNS is committed to complying with the E-Government Act of 2002 to 
promote the use of the Internet and other information technologies to 
provide increased opportunities to provide for citizen access to 
government information and services, and for other purposes.

List of Subjects

7 CFR Part 210

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

7 CFR Part 215

    Food assistance programs, Grant programs--education, Grant 
programs--health, Infants and children, Milk, Reporting and 
recordkeeping requirements.

7 CFR Part 220

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

7 CFR Part 226

    Accounting, Aged, Day care, Food assistance programs, Grant 
programs, Grant programs--health, American Indians, Individuals with 
disabilities, Infants and children, Intergovernmental relations, Loan 
programs, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

    Accordingly, 7 CFR parts 210, 215, 220, and 226 are proposed to be 
amended as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

0
1. The authority citation for 7 CFR part 210 continues to read as 
follows:

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

0
2. Amend Sec.  210.10 as follows:
0
a. In paragraph (a)(1)(i), remove the words ``1 to 4'' in the fourth 
sentence and add in their place the words ``1 through 4'';
0
b. In paragraph (a)(1)(ii), remove the last sentence;
0
c. Revise paragraph (e);
0
d. In paragraph (g), revise the first sentence;
0
e. Revise paragraph (j);
0
f. In paragraph (l)(1), add two sentences at the end of the paragraph; 
and
0
g. Revise paragraphs (o) and (p).
    The additions and revisions read as follows:


Sec.  210.10  Meal requirements for lunches and requirements for 
afterschool snacks.

* * * * *
    (e) Offer versus serve. (i) For students in grades K through 12. 
School lunches must offer daily the five food components specified in 
the meal pattern in paragraph (c) of this section. Under offer versus 
serve, students must be allowed to decline two items at lunch, except 
that the students must select at least 1/2 cup of either the fruit or 
vegetable component. Senior high schools (as defined by the State 
educational agency) must participate in offer versus serve. Schools 
below the senior high level may participate in offer versus serve at 
the discretion of the school food authority.
    (ii) For children ages 1 through 4. School lunches must offer daily 
all five required food components specified in the meal pattern in 
paragraph (p) of this section. If the school food authority elects 
offer versus serve, students in preschool may decline one or two of the 
five food components.
* * * * *
    (g) Compliance assistance. The State agency and school food 
authority must provide technical assistance and training to assist 
schools in planning lunches that meet the meal pattern in paragraph (c) 
of this section; the calorie, saturated fat, sodium, and trans fat 
specifications established in paragraph (f) of this section; and the 
meal pattern requirements in paragraphs (o) and (p) of this section, as 
applicable. * * *
* * * * *
    (j) State agency's responsibilities for compliance monitoring. 
Compliance with the meal requirements in paragraph (b) of this section, 
including dietary specifications for calories, saturated fat, sodium 
and trans fat, and paragraphs (o) and (p) of this section, as 
applicable, will be monitored by the State agency through 
administrative reviews authorized in Sec.  210.18.
* * * * *
    (l) * * *
    (1) * * * With State agency approval, schools may serve lunches to 
children under age 5 over two service periods. Schools may divide the 
quantities and/or food items offered each time any way they wish.
* * * * *
    (o) Afterschool snacks. Eligible schools operating afterschool care 
programs may be reimbursed for one afterschool snack served to a child 
(as defined in Sec.  210.2) per day.
    (1) ``Eligible schools'' means schools that:
    (i) Operate school lunch programs under the Richard B. Russell 
National School Lunch Act; and
    (ii) Sponsor afterschool care programs as defined in Sec.  210.2.
    (2) Afterschool snack requirements for children in grades K-12. 
Afterschool snacks shall contain two different components from the 
following four:

[[Page 2054]]

    (i) A serving of fluid milk as a beverage, or on cereal, or used in 
part for each purpose;
    (ii) A serving of meat or meat alternate. Nuts and seeds and their 
butters listed in FNS guidance are nutritionally comparable to meat or 
other meat alternates based on available nutritional data. Acorns, 
chestnuts, and coconuts are excluded and shall not be used as meat 
alternates due to their low protein content. Nut or seed meals or 
flours shall not be used as a meat alternate except as allowed under 
Appendix A of this part;
    (iii) A serving of vegetable(s) or fruit(s) or full-strength 
vegetable or fruit juice, or an equivalent quantity of any combination 
of these foods. Juice may not be served when fluid milk is served as 
the only other component;
    (iv) A serving of whole-grain or enriched bread; or an equivalent 
serving of a bread product, such as cornbread, biscuits, rolls, or 
muffins made with whole-grain or enriched meal or flour; or a serving 
of cooked whole-grain or enriched pasta or noodle products such as 
macaroni, or cereal grains such as enriched rice, bulgur, or enriched 
corn grits; or an equivalent quantity of any combination of these 
foods.
    (3) Afterschool snack requirements for children under age 5. 
Afterschool snacks served to infants ages birth through 11 months and 
to children ages 1 through 4 must meet the requirements for meal 
supplements for the Child and Adult Care Food Program as specified 
under paragraphs Sec.  226.20(a), (b), (c)(3) and (d) of this chapter, 
as applicable. In addition, school food authorities serving after 
school snacks must comply with the requirements set forth in paragraphs 
(a), (c)(3), (c)(7), (d)(2) through (4), (g), and (m) of this section.
    (p) Lunches for preschoolers and infants--(1) Requirements for 
preschoolers' lunch pattern. Lunches for children ages 1 through 4 must 
meet the requirements for lunches for the Child and Adult Care Food 
Program as specified under paragraphs Sec.  226.20(a), (c)(2) and (d) 
of this chapter. In addition, school food authorities serving lunches 
under this paragraph must comply with the requirements set forth in 
paragraphs (a), (c)(3), (c)(4), (c)(7), (d)(2) through (4), (e), (g), 
(j), (k), (l), and (m) of this section.
    (2) Requirements for infants' lunch pattern. Lunches for infants 
ages birth through 11 months must meet the requirements for lunches 
under paragraphs Sec.  226.20(b) and (d) of this chapter, as 
applicable. In addition, school food authorities serving lunches under 
this paragraph must comply with the requirements set forth in 
paragraphs (a), (g), (l), and (m) of this section, as applicable.

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

0
3. The authority for 7 CFR part 215 continues to read as follows:

    Authority:  42 U.S.C. 1772 and 1779.

0
4. In 7 CFR part 215 add new Sec.  215.7a to read as follows:


Sec.  215.7a  Fluid milk and non-dairy milk substitute requirements.

    Fluid milk and non-dairy beverages served must meet the 
requirements as outlined in this paragraph.
    (a) Types of fluid milk. All fluid milk served in the Program must 
be pasteurized fluid milk which meets State and local standards for 
such milk. All fluid milk must have vitamins A and D at levels 
specified by the Food and Drug Administration and must be consistent 
with State and local standards for such milk. Fluid milk served must 
also meet the following requirements:
    (1) Children one year of age must be offered only unflavored whole 
milk.
    (2) Children ages 2 years and older must be served either 
unflavored low-fat (1 percent) or unflavored fat-free (skim) or 
flavored fat-free (skim) milk.
    (b) Fluid milk substitutes. Non-dairy fluid milk substitutions may 
be provided for non-disabled children with medical or special dietary 
needs so long as requests are submitted in writing from the child's 
parent or guardian. If a school or day care center chooses to offer one 
or more substitutes for fluid milk, the non-dairy beverage(s) must 
provide the nutrients listed in the following table. Fluid milk 
substitutes must be fortified in accordance with fortification 
guidelines issued by the Food and Drug Administration. A school or day 
care center need only offer the non-dairy beverage(s) that it has 
identified as allowable fluid milk substitutes according to the 
following chart:

------------------------------------------------------------------------
                 Nutrient                         Per cup (8 fl oz)
------------------------------------------------------------------------
Calcium...................................  276 mg.
Protein...................................  8 g.
Vitamin A.................................  500 IU.
Vitamin D.................................  100 IU.
Magnesium.................................  24 mg.
Phosphorus................................  222 mg.
Potassium.................................  349 mg.
Riboflavin................................  0.44 mg.
Vitamin B-12..............................  1.1 mcg.
------------------------------------------------------------------------

PART 220--SCHOOL BREAKFAST PROGRAM

0
5. The authority citation for 7 CFR part 220 continues to read as 
follows:

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

0
6. Amend Sec.  220.8 as follows:
0
a. In paragraph (a) introductory text, revise the first sentence;
0
b. In paragraph (a)(3), revise the third sentence;
0
c. In paragraph (c), revise the title;
0
d. In paragraph (g), revise the first sentence;
0
e. In paragraph (j), revise the first sentence; and
0
f. Revise paragraph (o).
    The revisions read as follows:


Sec.  220.8  Meal requirements for breakfasts.

    (a) * * * This section contains the meal requirements applicable to 
school breakfasts for students in grades K to 12, and for children 
under the age of 5. * * *
* * * * *
    (3) * * * Labels or manufacturer specifications for food products 
and ingredients used to prepare school meals for students in grades K 
to 12 must indicate zero grams of trans fat per serving (less than 0.5 
grams). * * *
* * * * *
    (c) Meal pattern for school breakfasts for grades K to 12. * * *
* * * * *
    (g) * * * The State agency and school food authority must provide 
technical assistance and training to assist schools in planning 
breakfasts that meet the meal pattern in paragraph (c) of this section, 
the dietary specifications for calorie, saturated fat, sodium, and 
trans fat established in paragraph (f) of this section, and the meal 
pattern in paragraph (o) of this section, as applicable. * * *
* * * * *
    (j) * * * Effective SY 2013-2014, compliance with the applicable 
meal requirements in paragraphs (b) and (o) of this section will be 
monitored by the State agency through administrative reviews authorized 
in Sec.  210.18 of this chapter.
* * * * *
    (o) Breakfasts for preschoolers and infants. Breakfast served to 
infants ages birth through 11 months and to children ages 1 through 4 
must meet the requirements for breakfasts served under the Child and 
Adult Care Food Program as specified under paragraphs Sec.  
226.20(a),(b), (c)(1), and (d). In addition, school food authorities 
serving breakfasts under this paragraph must comply with the 
requirements set forth

[[Page 2055]]

in paragraphs (a),(c)(3), (g), (j), (k), (l), and (m) of this section, 
as applicable.

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

0
7. The authority citation for 7 CFR part 226 continues to read as 
follows:

    Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell 
National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 
1765 and 1766).

0
8. Revise Sec.  226.1 to read as follows:


Sec.  226.1  General purpose and scope.

    This part announces the regulations under which the Secretary of 
Agriculture will carry out the Child and Adult Care Food Program. 
Section 17 of the Richard B. Russell National School Lunch Act, as 
amended, authorizes assistance to States through grants-in-aid and 
other means to initiate, maintain, and expand nonprofit food service 
programs for children or adult participants in non-residential 
institutions which provide care. The program is intended to provide aid 
to child and adult participants and family or group day care homes for 
the provision of nutritious foods that contribute to the wellness, 
healthy growth, and development of young children, and the health and 
wellness of older adults and chronically impaired disabled persons.
0
9. In Sec.  226.2, add definitions of Tofu and Whole grains in 
alphabetical order to read as follows:


Sec.  226.2  Definitions.

* * * * *
    Tofu means a commercially prepared soy-bean derived food, made by a 
process in which soybeans are soaked, ground, mixed with water, heated, 
filtered, coagulated, and formed into cakes. Basic ingredients are 
whole soybeans, one or more food-grade coagulates (typically a salt or 
an acid), and water. Tofu must conform to FNS guidance to count towards 
the meat/meat alternates component.
* * * * *
    Whole grains means foods that consist of the intact, ground, 
cracked, or flaked grain seed whose principal anatomical components--
the starchy endosperm, germ and bran--are present in the same relative 
proportions as they exist in the intact grain seed. Whole grain-rich 
products must conform to FNS guidance to count towards the grain 
component.
* * * * *
0
10. In Sec.  226.7, revise paragraph (m) to read as follows:


Sec.  226.7  State agency responsibilities for financial management.

* * * * *
    (m) Financial management system. (1) Each State agency shall 
establish a financial management system in accordance with 7 CFR parts 
3015, 3016, and 3019, as applicable, and FNS guidance to identify 
allowable Program costs, and establish standards for institutional 
recordkeeping and reporting. These standards:
    (i) Prohibit claiming reimbursement for meals provided by a 
participant's family, except as authorized by Sec. Sec.  226.18(e), 
226.20(b)(2), and 226.20(g); and
    (ii) Allow the cost of meals served to adults who perform necessary 
food service labor under the Program, except in day care homes.
    (2) The State agency shall provide guidance on financial management 
requirements to each institution.
0
11. Revise Sec.  226.20 to read as follows:


Sec.  226.20  Requirements for meals.

    (a) Meal components. Except as otherwise provided in this section, 
each meal served in the Program must contain, at a minimum, the 
indicated food components:
    (1) Fluid milk. Fluid milk as a beverage or on cereal, or used in 
part for each purpose, as follows:
    (i) Children 1 year old. Children one year of age must be served 
only unflavored whole milk.
    (ii) Children 2 years and older. Children two years and older must 
be served either unflavored low-fat (1 percent) or unflavored fat-free 
(skim) or flavored fat-free (skim) milk.
    (iv) Adults. Adults must be served either unflavored low-fat (1 
percent) or unflavored fat-free (skim) or flavored fat-free (skim) 
milk. Six ounces (weight) or \3/4\ cup (volume) of yogurt may be used 
to fulfill the equivalent of 8 ounces of fluid milk, not more than once 
per day.
    (2) Vegetables. A serving may contain fresh, frozen, or canned 
vegetables, dry beans and peas (legumes), or vegetable juice. All 
vegetables are credited based on their volume as served, except that 1 
cup of leafy greens count as \1/2\ cup of vegetables. Pasteurized, 
full-strength vegetable juice may be used to fulfill the requirement. 
Fruit juices and vegetable juices may not be served at the same meal. 
Cooked dry beans or dry peas may be used as either a vegetable or a 
meat alternate, but not both, in the same meal.
    (3) Fruits. A serving may contain fresh, frozen, or dried fruits or 
fruit juice. All fruits are credited based on their volume as served, 
except that \1/4\ cup of dried fruit counts as \1/2\ cup of fruit. 
Pasteurized, full-strength fruit juice may be used to fulfill the 
requirement. Fruit juices and vegetable juices may not be served at the 
same meal.
    (4) Grains. At a minimum, at least one serving per day, across all 
eating occasions of bread, cereals, and grains, must be whole-grain or 
whole-grain rich. Grain-based desserts do not count towards meeting the 
grains requirement.
    (i) Breakfast cereals. Breakfast cereals are those as defined by 
FDA in 21 CFR 170.3(n)(4) for ready-to-eat and instant and regular hot 
cereals. Breakfast cereals must conform to the requirements of the WIC 
program as outlined in Sec.  246.10(e)(12).
    (ii) All other grains. A serving must be made with enriched or 
whole grain meal or flour, in accordance with FNS guidance. A serving 
may contain whole grain, whole grain-rich, or enriched bread; or 
cornbread, biscuits, rolls, muffins, and other bread products made with 
whole grain or enriched meal or flour; or whole grain or enriched or 
fortified cereal; or cooked whole grain or enriched pasta or noodle 
products, such as macaroni; or cereal grains, such as rice, bulgur, or 
corn grits; or any combination of these foods.
    (5) Meat and meat alternates. (i) The creditable quantity of meat/
meat alternates must be the edible portion as served of lean meat, 
poultry or fish; alternate protein products; or cheese; or an egg; or 
cooked dry beans or peas; or peanut butter; or any combination of these 
foods. Meat/meat alternates must be served in a main dish, or in a main 
dish and one other menu item, to meet this requirement.
    (ii) Nuts and seeds. Nuts and seeds and their butters are allowed 
as meat alternates in accordance with FNS guidance. Acorns, chestnuts, 
and coconuts may not be used because of their low protein and iron 
content. Nut and seed meals or flours may be used only if they meet the 
requirements for alternate protein products established in Appendix A 
to this part. For lunch and supper meals, nuts or seeds may be used to 
meet no more than one-half (50 percent) of the meat/meat alternates 
component. They must be combined with other meat/meat alternates to 
meet the full requirement for a reimbursable lunch or supper.
    (iii) Yogurt. Yogurt may be used to meet all or part of the meat/
meat alternates component. Yogurt may be plain or flavored, unsweetened 
or sweetened. Noncommercial or non-standardized yogurt products, such 
as frozen yogurt, drinkable yogurt products, homemade yogurt, yogurt

[[Page 2056]]

flavored products, yogurt bars, yogurt covered fruits or nuts, or 
similar products are not creditable. Four ounces (weight) or \1/2\ cup 
(volume) of yogurt equals one ounce of the meat/meat alternates 
requirement. For adults, six ounces (weight) or \3/4\ cup (volume) of 
yogurt may be used to fulfill the equivalent of 8 oz. of fluid milk, no 
more than once per day.
    (iv) Tofu and soy products. Commercial tofu and soy products may be 
used to meet all or part of the meat/meat alternates component in 
accordance with FNS guidance and Appendix A to this part. Non-
commercial and/or non-standardized tofu and soy products cannot be 
used.
    (v) Beans and peas (legumes). Cooked dry beans and peas may be used 
to meet all or part of the meat/meat alternates component. Beans and 
peas may be used as the meat alternate or as part of the vegetable 
component, but not both, in the same meal. Beans and peas include foods 
such as black beans, garbanzo beans, lentils, kidney beans, mature lima 
beans, navy beans, pinto beans, and split peas.
    (vi) Other meat alternates. Other meat alternates, such as cheese, 
eggs, and nut butters may be used to meet all or part of the meat/meat 
alternate component in accordance with FNS guidance.
    (b) Infant meals--(1) Feeding meals to infants. Reimbursable meals 
served to infants ages birth through 11 months must meet the 
requirements described in this paragraph. Foods included in the infant 
meal must be of a texture and a consistency that are appropriate for 
the age and development of the infant being served. The foods must be 
served during a span of time consistent with the infant's eating 
habits. For those infants whose dietary needs are more individualized, 
exceptions to the meal pattern must be made in accordance with the 
requirements found in paragraph (h) of this section.
    (2) Breastmilk and iron-fortified formula. Either breastmilk or 
iron-fortified infant formula, or portions of both, must be served for 
the entire first year. A facility that enrolls formula-fed infants must 
offer at least one type of iron-fortified infant formula, which the 
parent (or guardian) may either accept, or choose to decline and supply 
the infant's formula instead. Meals containing breastmilk and meals 
containing iron-fortified infant formula, supplied by the facility or 
by the parent (or guardian), are eligible for reimbursement. Meals in 
which a mother directly breastfeeds her child at the child care 
facility are also eligible for reimbursement. For infants 6 months and 
older, a meal is only reimbursable when the facility supplies at least 
two components of the infant's meal.
    (3) Solid foods. The introduction of solid foods may begin at the 
age of six months, as developmentally appropriate. The facility should 
consult with the infant's parent (or guardian) in making the decision 
to introduce solid foods. Solid foods of an appropriate texture and 
consistency should be introduced one at a time on a gradual basis with 
the intent of ensuring the infant's health and nutritional well-being.
    (4) Infant meal pattern. Infant meals must have, at a minimum, each 
of the food components indicated, in the amount that is appropriate for 
the infant's age. For some infants who regularly consume less than the 
minimum amount of breastmilk or iron-fortified infant formula per 
feeding, a serving of less than the minimum amount of breastmilk or 
infant formula may be offered. In these situations, additional 
breastmilk or infant formula must be offered at a later time if the 
infant will consume more. Meals may include portions of breastmilk and 
iron-fortified infant formula as long as the total number of ounces 
meets, or exceeds, the minimum amount required of this food component.
    (i) Birth through 5 months. Only breastmilk or iron-fortified 
formula is required to meet the infant's nutritional needs.
    (A) Breakfast--4 to 6 fluid ounces of breastmilk or iron-fortified 
infant formula.
    (B) Lunch or supper--4 to 6 fluid ounces of breastmilk or iron-
fortified infant formula.
    (C) Snack--4 to 6 fluid ounces of breastmilk or iron-fortified 
infant formula.
    (ii) 6 through 11 months. Breastmilk or iron-fortified formula is 
required. Solid foods of an appropriate texture and consistency are 
required as developmentally appropriate. Meals are reimbursable when 
facilities provide all of the components in the meal pattern that the 
infant is developmentally ready to accept.
    (A) Breakfast, lunch, or supper--6 to 8 fluid ounces of breastmilk 
or iron-fortified infant formula; and 1 to 4 tablespoons of iron-
fortified dry infant cereal meat, fish, poultry, egg yolk, cooked dry 
beans, or cooked dry peas; and 1 to 2 tablespoons of vegetable fruit, 
or portions of both. Fruit and vegetable juices may not be served.
    (B) Snack--2 to 4 fluid ounces of breastmilk or iron-fortified 
infant formula; and \1/4\ to \1/2\ ounce bread, crackers, or ready-to-
eat breakfast cereals; and 1 to 2 tablespoons of vegetable or fruit, or 
portions of both. Fruit and vegetable juices may not be served. A 
serving of grains must be whole grain, whole grain-rich, enriched meal, 
or enriched flour.
    (5) Infant meal pattern table. The minimum amounts of food 
components to serve to infants, as described in paragraph (b)(4) of 
this section, are:

------------------------------------------------------------------------
                                 Birth through 5
           Infants                   months          6 through 11 months
------------------------------------------------------------------------
Breakfast, Lunch, or Supper.  4-6 fluid ounces      6-8 fluid ounces
                               breastmilk \1\ or     breastmilk \1\ or
                               formula \2\.          formula \2\.
                                                    1-4 tablespoons
                                                     infant cereal \2\
                                                     meat, fish,
                                                     poultry, egg yolk,
                                                     cooked dry beans,
                                                     or cooked dry peas,
                                                     or a combination of
                                                     the above.
                                                    1-2 tablespoons
                                                     vegetable \3\ or
                                                     fruit \3\ or a
                                                     combination of
                                                     both.
Snack.......................  2-4 fluid ounces      2-4 fluid ounces
                               breastmilk \1\ or     breastmilk \1\ or
                               formula \2\.          formula \2\.
                                                    \1/4\-\1/2\ ounce
                                                     bread,\4\ cracker
                                                     \4\, or ready-to-
                                                     eat breakfast
                                                     cereal \4\.
                                                    1-2 tablespoons
                                                     vegetable \3\ or
                                                     fruit \3\ or a
                                                     combination of
                                                     both.
------------------------------------------------------------------------
\1\ Breastmilk or formula, or portions of both, may be served; however,
  it is recommended that breastmilk be served in place of formula from
  birth through 11 months. For some breastfed infants who regularly
  consume less than the minimum amount of breastmilk per feeding, a
  serving of less than the minimum amount of breastmilk may be offered
  with additional breastmilk offered at a later time if the infant will
  consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Fruit or vegetable, or portions of both, may be served. Fruit and
  vegetable juices may not be served.
\4\ A serving of grains must be whole grain, whole grain-rich, enriched
  meal, or enriched flour.


[[Page 2057]]

    (c) Meal patterns for children ages 1 through 18 and adult 
participants. Facilities must serve the food components and quantities 
specified in the following meal pattern for children ages 1 through 2, 
3 through 5, 6 through 12, 13 through 18, and adult participants in 
order to qualify for reimbursement.
    (1) Breakfast. Fluid milk, vegetables and/or fruit, and grains are 
required components of the breakfast meal. Meat/meat alternate may be 
used to meet no more than one-half (fifty percent) of the grains 
requirement. The minimum amounts of food components to be served at 
breakfast are as follows:

                                               Breakfast Meal Pattern for Children and Adult Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Food Components and Food Items \1\         Ages 1-2                Ages 3-5               Ages 6-12              Ages 13-18               Adult
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk \2\.....................  4 fluid ounces........  6 fluid ounces........  8 fluid ounces.......  8 fluid ounces.......  8 fluid ounces.
Vegetables, fruits, or portions of   \1/4\ cup.............  \1/2\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
 both \3\.
Grains \4\ \5\:
    Whole grain or enriched bread..  \1/2\ slice...........  \1/2\ slice...........  1 slice..............  1 slice..............  2 slices.
    Whole grain or enriched bread    \1/2\ serving.........  \1/2\ serving.........  1 serving............  1 serving............  2 servings.
     product, such as biscuit,
     roll, muffin.
    Whole grain, enriched or         \1/4\ cup.............  \1/4\ cup.............  \1/2\ cup............  \1/2\ cup............  1 cup.
     fortified Cereal \6\, cereal
     grain, and/or pasta.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all three components for a reimbursable meal. Offer versus serve is an option for only adult and at-risk participants.
\2\ Must be unflavored whole milk for children age one. Multiple options related to flavored milk are presented for public comment for children age 2
  years and older. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of fluid
  milk no more than once per day.
\3\ Pasteurized full-strength juice may be used to meet the requirement. Fruit and vegetable juices may not be served at the same meal.
\4\ At least one serving per day, across all eating occasions, must be whole grain or whole grain-rich. Grain-based desserts do not count towards
  meeting the grains requirement.
\5\ Meat/meat alternates may be used to meet up to 50 percent of the grains requirement. One ounce of meat/meat alternates is equivalent to one cup/
  serving of grains.
\6\ Breakfast cereals must conform to the requirements of the WIC program as outlined in 7 CFR 246.10(e)(12).

    (2) Lunch and supper. The minimum amounts of food components to be 
served as lunch or supper are as follows:

                                            Lunch and Supper Meal Pattern for Children and Adult Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Food Components and Food Items \1\         Ages 1-2                Ages 3-5               Ages 6-12              Ages 13-18               Adult
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk \2\.....................  4 fluid ounces........  6 fluid ounces........  8 fluid ounces.......  8 fluid ounces.......  8 fluid ounces.\3\
Meat/meat alternates...............
Edible portion as served:
    Lean meat, poultry, or fish....  1 ounce...............  1\1/2\ ounces.........  2 ounces.............  2 ounces.............  2 ounces.
    Tofu, soy products, or           1 ounce...............  1\1/2\ ounces.........  2 ounces.............  2 ounces.............  2 ounces.
     alternate protein products \4\.
    Cheese.........................  1 ounce...............  1\1/2\ ounces.........  2 ounces.............  2 ounces.............  2 ounces.
    Large egg......................  \1/2\.................  \3/4\.................  1....................  1....................  1.
    Cooked dry beans or peas.......  \1/4\ cup.............  \3/8\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
    Peanut butter or soy nut butter  2 Tbsp................  3 Tbsp................  4 Tbsp...............  4 Tbsp...............  4 Tbsp.
     or other nut or seed butters.
    Yogurt, plain or flavored        4 ounces or \1/2\ cup.  6 ounces or \3/4\ cup.  8 ounces or 1 cup....  8 ounces or 1cup.....  8 ounces or 1cup.
     unsweetened or sweetened.
The following may be used to meet
 no more than 50 percent of the
 requirement:
    Peanuts, soy nuts, tree nuts,    \1/2\ ounce = 50%.....  \3/4\ ounce = 50%.....  1 ounce = 50%........  1 ounce = 50%........  1 ounce = 50%.
     or seeds, as listed in program
     guidance, or an equivalent
     quantity of any combination of
     the above meat/meat alternates
     (1 ounce of nuts/seeds = 1
     ounce of cooked lean meat,
     poultry or fish).
Vegetables \5\.....................  \1/8\ cup.............  \1/4\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
Fruits \5\.........................  \1/8\ cup.............  \1/4\ cup.............  \1/4\ cup............  \1/4\ cup............  \1/2\ cup.
Grains \6\:
    Whole grain or enriched bread..  \1/2\ slice...........  \1/2\ slice...........  1 slice..............  1 slice..............  2 slices.

[[Page 2058]]

 
    Whole grain or enriched bread    \1/2\ serving.........  \1/2\ serving.........  1 serving............  1 serving............  2 servings.
     product, such as biscuit,
     roll, muffin.
    Whole grain, enriched or         \1/4\ cup.............  \1/4\ cup.............  \1/2\ cup............  \1/2\ cup............  1 cup.
     fortified Cereal \7\, cereal
     grain, and/or pasta.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all five components for a reimbursable meal. ``Offer versus serve'' is an option for only adult and at-risk participants.
\2\ Must be unflavored whole milk for children age one. Multiple options related to flavored milk are presented for public comment for children age 2
  years and older. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of fluid
  milk no more than once per day.
\3\ A serving of fluid milk is optional for suppers served to adult participants.
\4\ Alternate protein products must meet the requirements in Appendix A to part 226.
\5\ Pasteurized full-strength juice may be used to meet the requirement. Fruit and vegetable juices may not be served at the same meal.
\6\ At least one serving per day, across all eating occasions, must be whole grain or whole grain-rich. Grain-based desserts do not count towards
  meeting the grains requirement.
\7\ Breakfast cereals must conform to the requirements of the WIC program as outlined in 7 CFR 246.10(e)(12).

    (3) Snack. Select two of the following five components. Fruit 
juice, vegetable juice, and milk may comprise no more than one 
component of the snack. The minimum amounts of food components to be 
served as snack as set forth in this paragraph are as follows:

                                                 Snack Meal Pattern for Children and Adult Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Food Components and Food Items \1\         Ages 1-2                Ages 3-5               Ages 6-12              Ages 13-18               Adult
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk \2\ \3\.................  4 fluid ounces........  4 fluid ounces........  8 fluid ounces.......  8 fluid ounces.......  8 fluid ounces.
Meats/meat alternates..............
Edible portion as served:
    Lean meat, poultry, or fish....  \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
    Tofu, soy products, or           \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
     alternate protein products \4\.
    Cheese.........................  \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
    Large egg......................  \1/2\.................  \1/2\.................  \1/2\................  \1/2\................  \1/2\.
    Cooked dry beans or peas.......  \1/8\ cup.............  \1/8\ cup.............  \1/4\ cup............  \1/4\ cup............  \1/4\ cup.
    Peanut butter or soy nut butter  1 Tbsp................  1 Tbsp................  2 Tbsp...............  2 Tbsp...............  2 Tbsp.
     or other nut or seed butters.
    Yogurt, plain or flavored        2 ounces or \1/4\ cup.  2 ounces or \1/4\ cup.  4 ounces or \1/2\ cup  4 ounces or \1/2\ cup  4 ounces or \1/2\
     unsweetened or sweetened.                                                                                                      cup.
    Peanuts, soy nuts, tree nuts,    \1/2\ ounce...........  \1/2\ ounce...........  1 ounce..............  1 ounce..............  1 ounce.
     or Seeds.
Vegetables \3\.....................  \1/2\ cup.............  \1/2\ cup.............  \3/4\ cup............  \3/4\ cup............  \1/2\ cup.
Fruits \3\.........................  \1/2\ cup.............  \1/2\ cup.............  \3/4\ cup............  \3/4\ cup............  \1/2\ cup.
Grains \5\:
    Whole grain or enriched bread..  \1/2\ slice...........  \1/2\ slice...........  1 slice..............  1 slice..............  1 slice.
    Whole grain or enriched bread    \1/2\ serving.........  \1/2\ serving.........  1 serving............  1 serving............  1 serving.
     product, such as biscuit,
     roll, muffin.
    Whole grain, enriched or         \1/4\ cup.............  \1/3\ cup.............  \3/4\ cup............  \3/4\ cup............  \3/4\ cup.
     fortified Cereal \6\, cereal
     grain, and/or pasta.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Select two of the five components for a reimbursable snack. Only one of the two components may be a beverage.
\2\ Must be unflavored whole milk for children age one. Multiple options related to flavored milk are presented for public comment for children age 2
  years and older. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of fluid
  milk no more than once per day.
\3\ Only one beverage (fluid milk, vegetable juice or fruit juice) may be served. Pasteurized full-strength juice must be used to meet the requirement.
\4\ Alternate protein products must meet the requirements in Appendix A to part 226.
\5\ At least one serving per day, across all eating occasions, must be whole grain or whole grain-rich. Grain-based desserts do not count towards
  meeting the grains requirement.
\6\ Breakfast cereals must conform to the requirements of the WIC program as outlined in 7 CFR 246.10(e)(12).

    (d) Food preparation. Frying may not be used as a method of onsite 
preparation for foods served as part of the reimbursable meal. Foods 
that have been pre-fried, flash-fried, or par-fried by the manufacturer 
may be served but must be heated by a method other than frying.
    (e) Best practices. Facilities willing to go further in providing 
healthier options may follow the best practices, as outlined below, 
when serving meals and

[[Page 2059]]

snacks. Best practices are suggestions only and may not be required to 
be followed in order to receive reimbursement for the meal nor may 
noncompliance with the best practice standards be used as a serious 
deficiency finding (Sec.  226.6(c) of this part) or as the basis for 
other disciplinary actions for homes or centers.
    (1) Infants. Facilities should support mothers who choose to 
breastfeed their infants by encouraging mother to supply breastmilk for 
their infants while in day care and providing a quiet, private area for 
mothers who come to day care facility to breastfeed.
    (2) Fruits and vegetables. Facilities should:
    (i) Limit the consumption of fruit juice to no more than one 
serving per day for children one and older.
    (ii) Make at least one of the two required components of snack a 
fruit or a vegetable.
    (iii) Limit fried and pre-fried foods to no more than one serving 
per week, across all eating occasions.
    (iv) Provide at least one serving each of dark green vegetables, 
red/orange vegetables, and legumes once per week.
    (3) Grains. Facilities should:
    (i) Provide at least two servings of whole grain-rich grains per 
day.
    (ii) Serve breakfast cereals that contain no more than 6 grams of 
sugar per serving.
    (4) Milk. Facilities should serve only unflavored milk to all 
participants.
    (5) Meat and meat alternates. Facilities should:
    (i) Serve only lean meats, nuts, and legumes.
    (ii) Limit the service of processed meats to no more than once per 
week, across all eating occasions.
    (iii) Limit the service of fried and pre-fried foods to no more 
than one serving per week, across all eating occasions.
    (iv) Serve only natural cheeses.
    (f) Temporary unavailability of milk. If emergency conditions 
prevent an institution normally having a supply of milk from 
temporarily obtaining milk deliveries, the State agency may approve the 
service of breakfasts, lunches, or suppers without milk during the 
emergency period.
    (g) Continuing unavailability of milk. The inability of an 
institution to obtain a supply of milk on a continuing basis should not 
bar it from participation in the Program. In such cases, the State 
agency may approve service of meals without milk, provided that an 
equivalent amount of canned, whole dry or fat-free dry milk is used in 
the preparation of the components of the meal set forth in paragraphs 
(a)(1) through (3) of this section.
    (h) Statewide substitutions. In American Samoa, Puerto Rico, Guam, 
and the Virgin Islands, the following variations from the meal 
requirements are authorized: a serving of a starchy vegetable, such as 
yams, plantains, or sweet potatoes may be substituted for the grains 
requirements.
    (i) Individual substitutions. For substitutions due to medical 
reasons (not reaching the level of a disability) or special dietary 
needs, a parent or guardian may supply up to one component of the 
reimbursable meal, so long as the facility provides the remaining 
components.
    (1) Fluid milk substitutions. Non-dairy fluid milk substitutions 
may be provided for non-disabled children with medical or special 
dietary needs so long as requests are submitted in writing from the 
child's parent or guardian or the adult participant. The non-dairy 
beverage(s) must provide the nutrients listed in the following table. 
Milk substitutions must be fortified in accordance with fortification 
guidelines issued by the Food and Drug Administration.

------------------------------------------------------------------------
                 Nutrient                              Per cup
------------------------------------------------------------------------
Calcium...................................  276 mg.
Protein...................................  8 g.
Vitamin A.................................  500 IU.
Vitamin D.................................  100 IU.
Magnesium.................................  24 mg.
Phosphorus................................  222 mg.
Potassium.................................  349 mg.
Riboflavin................................  0.44 mg.
Vitamin B-12..............................  1.1 mcg.
------------------------------------------------------------------------

    (2) Food substitutions--(i) Food substitutions for disability 
reasons. Substitutions must be made for foods listed in paragraphs (b) 
and (c) of this section for individual participants who are considered 
to have a disability under 7 CFR 15b.3 and whose disability restricts 
their diet. Substitutions must be made on a case-by-case basis only 
when supported by a statement from a licensed physician that includes 
recommended alternate foods, unless otherwise exempted by FNS.
    (ii) Food substitutions for non-disability reasons. Substitutions 
may be made for foods listed in paragraphs (b) and (c) of this section 
for individual participants without disabilities who cannot consume the 
regular meal because of medical or special dietary needs. Substitutions 
may be made on a case-by-case basis only when supported by a statement 
from a recognized medical authority that includes recommended alternate 
foods, unless otherwise exempted by FNS.
    (j) Special variations. FNS may approve variations in the food 
components of the meals on an experimental or a continuing basis in any 
institution where there is evidence that such variations are 
nutritionally sound and are necessary to meet ethnic, religious, 
economic, or physical needs.
    (k) Meal planning. Institutions should plan for and order meals on 
the basis of current participation trends, with the objective of 
providing only one meal per participant at each meal service. Records 
of participation and of ordering or preparing meals should be 
maintained to demonstrate positive action toward this objective. In 
recognition of the fluctuation in participation levels which makes it 
difficult to estimate precisely the number of meals needed and to 
reduce the resultant waste, any excess meals that are ordered may be 
served to participants and may be claimed for reimbursement, unless the 
State agency determines that the institution has failed to plan and 
prepare or order meals with the objective of providing only one meal 
per participant at each meal service.
    (l) Time of meal service. State agencies may require any 
institution or facility to allow a specific amount of time to elapse 
between meal services or require that meal services not exceed a 
specified duration.
    (m) Sanitation. Institutions should ensure that in storing, 
preparing, and serving food, proper sanitation and health standards are 
met which conform with all applicable State and local laws and 
regulations. Institutions should ensure that adequate facilities are 
available to store food or hold meals.
    (n) Donated commodities. Institutions should efficiently use in the 
Program any foods donated by the Department and accepted by the 
institution.
    (o) Family-style meal service. Family- style is a type of meal 
service which allows children to serve themselves from common platters 
of food with the assistance of supervising adults. Facilities choosing 
to exercise this option must be in compliance with the following 
practices:
    (1) A sufficient amount of prepared food must be placed on each 
table to provide the full required portions of each of the food 
components, as outlined in paragraphs (c)(1) and (2) of this section, 
for all children at the table and to accommodate supervising adult(s) 
if they eat with the children.
    (2) Children must self-serve the meal components, with the 
exception of fluids (milk, juice, etc). During the course of the meal, 
it is the responsibility of the supervising adults to actively 
encourage each child to serve themselves the full required portion for

[[Page 2060]]

each food component of the meal pattern. Supervising adults who choose 
to serve the fluids directly to the children must serve the required 
minimum quantity to each child.
    (3) Institutions which use family-style meal service may not claim 
second meals for reimbursement.
    (p) Offer versus serve. (1) Each adult day care center and at-risk 
after school program must offer its participants all of the required 
food servings as set forth in paragraph (c)(1)(i) and (ii) of this 
section. However, at the discretion of the adult day care center or at-
risk afterschool program, participants may be permitted to decline:
    (i) For adults: (A) One of the four food items (one serving of 
milk, one serving of fruit and/or vegetable, and two servings of grains 
or grain alternate and/or meat/meat alternate) required at breakfast;
    (B) Two of the six food items (one serving of milk, one servings of 
vegetable, one serving of fruit, two servings of grain or grain 
alternate, and one serving of meat or meat alternate) required at 
lunch; and
    (C) Two of the five food items (one serving of vegetables, one 
serving of fruit, two servings of grain or grain alternate, and one 
serving of meat or meat alternate) required at supper.
    (ii) For children participating in at-risk after school programs: 
Two of the five food items (one serving of vegetables, one serving of 
fruits, one serving of grain or grain alternate, one serving of meat or 
meat alternate, and one serving of fluid milk) required at supper.
    (2) In pricing programs, the price of a reimbursable meal must not 
be affected if an adult participant declines a food item.
    (q) Prohibition on using food as a punishment or reward. Meals 
served under this part must contribute to the development and 
socialization of children by providing food that is not used as a 
punishment or reward.
    (r) Sugar limitations--(1) Flavored milk for children 2 through 4 
years--(i) Alternative A1. The service of flavored milk to children 2 
through 4 years of age is prohibited; or
    (ii) Alternative A2. To be creditable as part of a reimbursable 
meal under paragraph (a)(1) of this section, flavored milk served to 
children 2 through 4 years of age must contain no more than 22 grams of 
sugar per 8 fluid ounce serving.
    (2) Flavored milk for children 5 years and older--(i) Alternative 
B1. To be creditable as part of a reimbursable meal under paragraph 
(a)(1) of this section, flavored milk served must contain no more than 
22 grams of sugar per 8 fluid ounce serving; or
    (ii) Alternative B2. Facilities willing to go further in providing 
healthier options may follow the best practices as outlined under 
paragraph (e) of this section, which may include limiting the sugar in 
flavored milk to no more than 22 grams per 8 fluid ounce serving.
    (3) Yogurt for all age groups--(i) Alternative C1. To be creditable 
as part of a reimbursable under paragraph (a)(1)(iv) or (a)(5) of this 
section, yogurt served must contain no more than 30 grams of sugar per 
6 ounce serving; or
    (ii) Alternative C2. Facilities willing to go further in providing 
healthier options may follow the best practices as outlined under 
paragraph (e) of this section, which may include limiting the sugar in 
yogurt to no more than 30 grams per 6 ounce serving.
0
12. In Sec.  226.25 add paragraph (i) to read as follows:


Sec.  226.25  Other provisions.

* * * * *
    (i) Water availability. A child care facility must make potable 
drinking water available to children upon their request, throughout the 
day.

    Dated: January 8, 2015.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2015-00446 Filed 1-14-15; 8:45 am]
BILLING CODE 3410-30-P