[Federal Register Volume 63, Number 94 (Friday, May 15, 1998)]
[Proposed Rules]
[Pages 27162-27188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11654]
[[Page 27161]]
_______________________________________________________________________
Part IV
Department of Agriculture
_______________________________________________________________________
Food and Nutrition Service
_______________________________________________________________________
7 CFR Parts 210 and 220
National School Lunch Program and School Breakfast Program: Additional
Menu Planning Alternatives; Proposed Rule; Republication
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 / Proposed
Rules
[[Page 27162]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210 and 220
RIN 0584-AC38
National School Lunch Program and School Breakfast Program:
Additional Menu Planning Alternatives
Editorial Note: FR Doc. 98-11654 was originally published at 63
FR 24686-24709 in the issue of Monday, May 4, 1998. Due to numerous
errors, the document is being republished in its entirety. The
comment dates have changed. Also, disregard the correction document
published at 63 FR 25569 May 8, 1998.
AGENCY: Food and Nutrition Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National School Lunch Act requires that schools that are
participating in the National School Lunch or School Breakfast Programs
claim reimbursements only for lunches or breakfasts which meet the
nutrition standards of the National School Lunch Act, including
compliance with the Dietary Guidelines for Americans. The Healthy Meals
for Children Act expanded the number of menu planning alternatives
available to school food authorities participating in the National
School Lunch and School Breakfast Programs. In accordance with that
legislation, this proposed rulemaking would reinstate the menu planning
system in effect for School Year 1994-95 (the traditional meal pattern)
as one of the menu planning alternatives available to local school food
authorities. In addition, this proposal would permit school food
authorities to use ``any reasonable approach'' to plan menus to meet
the nutrition standards. The Department is also proposing to clarify
and simplify several State agency monitoring responsibilities
associated with the implementation of the nutrition standards of the
National School Lunch Act.
DATES: To be assured of consideration, comments must be postmarked or
e-mail comments dated on or before November 12, 1998.
ADDRESSES: Comments must sent to: Mr. Robert M. Eadie, Chief, Policy
and Program Development Branch, Child Nutrition Division, Food and
Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia,
22302 or via the Internet at [email protected] All written
submissions will be available for public inspection in Room 1007, 3101
Park Center Drive, Alexandria, Virginia during regular business hours
(8:30 a.m. to 5:30 p.m.), Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Robert M. Eadie at the above address
or by telephone at 703-305-2620.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule has been determined to be significant and is
subject to review by the Office of Management and Budget under
Executive Order 12866.
Public Law 104-4
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
Food and Nutrition Service generally prepare a written statement,
including a cost-benefit analysis, for proposed and final rules with
``Federal mandates'' that may result in expenditures to State, local,
or tribal governments, in the aggregate, or to the private sector, of
$100 million or more in any one year. When such a statement is needed
for a rule, section 205 of the UMRA generally requires the Food and
Nutrition Service to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, more cost-effective
or least burdensome alternative that achieves the objectives of the
rule.
This proposed rule contains no Federal mandates (under regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector of $100 million or more in any one
year. Thus, this proposed rule is not subject to the requirements of
sections 202 and 205 of the UMRA. However, a Regulatory Cost/Benefit
Assessment is provided in the Appendix to this preamble.
Regulatory Flexibility Act
This proposed rule has been reviewed with regard to the
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 through
612). The Under Secretary for Food, Nutrition and Consumer Services has
certified that this rule will not have a significant economic impact on
a substantial number of small entities. The Department of Agriculture
(the Department or USDA) does not anticipate any adverse fiscal impact
on local schools as the proposal would expand the number of options
available to plan menus for school meals.
Executive Order 12372
The National School Lunch Program and the School Breakfast Program
are listed in the Catalog of Federal Domestic Assistance under Nos.
10.555 and 10.553, respectively, and are subject to the provisions of
Executive Order 12372, which requires intergovernmental consultation
with State and local officials. (7 CFR Part 3015, Subpart V and final
rule-related notice at 48 FR 29112, June 24, 1983.)
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed rule is intended to have preemptive
effect with respect to any State or local laws, regulations or policies
which conflict with its provisions or which would otherwise impede its
full implementation. This proposed rule is not intended to have
retroactive effect unless so specified in the Effective Date section of
this preamble. Prior to any judicial challenge to the provisions of
this proposed rule or the application of the provisions, all applicable
administrative procedures must be exhausted. In the National School
Lunch Program and School Breakfast Program, the administrative
procedures are set forth under the following regulations: (1) School
food authority appeals of State agency findings as a result of an
administrative review must follow State agency hearing procedures as
established pursuant to 7 CFR 210.18(q); (2) school food authority
appeals of Food and Nutrition Service (FNS) findings as a result of an
administrative review must follow FNS hearing procedures as established
pursuant to 7 CFR 210.30(d)(3); and (3) State agency appeals of State
Administrative Expense fund sanctions (7 CFR 235.11(b)) must follow the
FNS Administrative Review Process as established pursuant to 7 CFR
235.11(f).
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C.
3507, this notice invites the general public and other public agencies
to comment on the information collection.
Written comments must be received on or before July 14, 1998.
Comments concerning the information collection aspects of this
proposed rule should be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Room 3208,
New Executive Office Building, Washington, DC. 20503, Attention : Laura
Oliven, Desk Officer for FNS. A copy of these
[[Page 27163]]
comments may also be sent to Mr. Eadie at the address listed in the
ADDRESSES section of this preamble. Commenters are asked to separate
their information collection requirements comments from their comments
on the remainder of this proposed rule.
OMB is required to make a decision concerning the collection of
information contained in this proposed regulation between 30 and 60
days after the publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulation.
Comments are invited on: (a) Whether the collection of information
is necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility; (b) the
accuracy of the agency's estimate of the burden of the collection of
information, including the validity of the methodology and assumptions
used; (c) ways to enhance the quality, utility, and clarity of the
information to be collected; and (d) ways to minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques of other forms of information
technology.
The title, description, and respondent description of the
information collections are shown below with an estimate of the annual
recordkeeping burdens. Included in the estimate is the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: 7 CFR Part 210, National School Lunch Program.
OMB Number: 0584-0006.
Expiration Date: October 31, 1999.
Type of Request: Revision of currently approved collection.
Abstract: The National School Lunch Act requires that schools that
are participating in the school lunch program claim reimbursements only
for lunches under the program which meet the nutrition standards of the
Act, including compliance with the Dietary Guidelines for Americans.
The Healthy Meals for Children Act expanded the number of menu planning
alternatives available to school food authorities participating in the
NSLP. In accordance with that legislation, this proposed rulemaking
would reinstate the menu planning system in effect for school year
1994-95 (the traditional meal pattern) as one of the menu planning
alternatives available to local school food authorities. In addition,
this proposal would permit school food authorities to use ``any
reasonable approach'' to meet the requirements.
In accordance with the Paperwork Reduction Act of 1995, the
Department is providing the public with the opportunity to provide
comments on the information collection requirements of the proposed
rule as noted below:
BILLING CODE 1505-01-F
[[Page 27164]]
[GRAPHIC] [TIFF OMITTED] TP15MY98.000
BILLING CODE 1505-01-C
[[Page 27165]]
Background
On June 13, 1995, USDA published a final rule (60 FR 31188)
updating the nutrition standards for the National School Lunch Program
(NSLP) and School Breakfast Program (SBP). That rulemaking was the
foundation of the Department's School Meals Initiative for Healthy
Children, an integrated, comprehensive plan for promoting the health of
the Nation's school children by updating the nutrition standards for
school meals and by providing State agencies and local food service
operators with the technical assistance to meet these standards. In
addition to announcing a fundamental change in the direction of the
school meals programs, the rulemaking implemented section 106(b) of
Public Law 103-448, the Healthy Meals for Healthy Americans Act of
1994, which was enacted on November 2, 1994. That provision amended
section 9(f) of the National School Lunch Act (NSLA) (42 U.S.C.
1758(f)) to require that school meals meet the Dietary Guidelines for
Americans (hereinafter referred to as the Dietary Guidelines) by School
Year 1996/1997, unless an implementation waiver of up to two years was
approved by the State agency. The rule also established specific
minimum standards for key nutrients (protein, calcium, iron, Vitamin A
and Vitamin C), and calories which school meals must meet. (As
discussed later, these standards are now also included in section 9(f)
of the NSLA.)
To assist schools with implementation of the updated nutrition
standards, the School Meals Initiative (SMI) rule provided three menu
planning alternatives: Nutrient Standard Menu Planning (NSMP), Assisted
Nutrient Standard Menu Planning (ANSMP) and a food-based menu planning
alternative. After publication of the final SMI rule, Public Law 104-
149, the Healthy Meals for Children Act, was enacted on May 29, 1996.
It expanded the number of menu planning alternatives which school food
authorities have available to them by including the menu planning
system that was in effect for School Year 1994-95, as a permanent
option as well as ``any reasonable approach, within guidelines
established by the Secretary * * *.''
Before a proposed rule to implement Public Law 104-149 could be
published, Public Law 104-193, the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, was enacted on August 22, 1996.
This law further amended section 9(f)(1)(B) of the NSLA to mandate that
school lunches and breakfasts provide, over a week, one-third and one-
fourth, respectively, of the Recommended Dietary Allowances (RDA)
established by the Food and Nutrition Board of the National Research
Council of the National Academy of Sciences. Because these requirements
are already included in the regulations establishing the new specific
nutrition standards for school lunches and breakfasts (Sec. 210.10(b)
and Sec. 220.8(a), respectively), this proposal would only add the
appropriate RDA requirements for the traditional meal pattern.
Menu Planning Systems
The sole menu planning system that was in effect for School Year
1994-95 was a meal pattern (the ``traditional'' meal pattern) which
stipulated the food components (meat/meat alternate, fruits/vegetables,
bread/bread alternate, and milk) and the minimum quantities of those
components that had to be offered to children of specific age/grade
groups. This meal pattern was virtually unchanged since the
establishment of the NSLP in 1946 and, until the June 13, 1995,
rulemaking, was the only menu planning system available to school food
authorities.
In order to provide flexibility as well as the tools that school
food authorities would need to meet modern nutrition standards for
children, the Department developed new menu planning alternatives
designed to facilitate compliance with the Dietary Guidelines and the
other nutrition-related requirements of section 9(f) of the NSLA. NSMP
and ANSMP provide menu planners with more flexible approaches by
eliminating the strict component and quantity requirements. Also, NSMP
and ANSMP provide actual nutrient information, including fat and
saturated fat levels, to menu planners on an on-going basis. In
addition, after the initial proposal in 1994, the Department developed
the enhanced food-based menu planning option which increased the
minimum number of servings over a week's time for the fruits/vegetables
and grains/breads components in order to maintain calorie levels while
keeping the percentages of calories from fat and saturated fat to 30
percent and less than 10 percent, respectively, as required. School
food authorities were given the option of choosing which of these menu
planning alternatives best suited their particular circumstances.
The Department developed these menu planning alternatives with the
Dietary Guidelines nutrition standards of the NSLA as the fundamental
element. The Department continues to believe that the enhanced food-
based, NSMP and ANSMP alternatives best support compliance with the
Dietary Guidelines. However, the Department acknowledges that some
school food authorities are progressing toward meeting the Dietary
Guidelines under the traditional meal pattern. Therefore, the
Department has concluded that, with increased emphasis on vegetables,
fruits and grain products and with appropriate modifications to
preparation techniques and product specifications, the traditional meal
pattern may support all of the nutrition standards required by the
NSLA. In recognition of this potential, the President signed Public Law
104-149 which amended section 9(f) of the NSLA to authorize the
traditional meal pattern as a permanent menu planning alternative as
well as any other reasonable approaches to menu planning under
guidelines established by the Secretary.
The remainder of this preamble discusses the proposed
implementation of the recent statutory amendments. This proposal also
clarifies monitoring procedures for assessing compliance with the
Dietary Guidelines and the other nutrition standards for all menu
planning alternatives.
The 1994-95 Meal Pattern (The Traditional Meal Pattern)
This proposal would reinstate the menu planning system in effect
for School Year 1994-1995 as a permanent alternative for planning
school menus under the NSLP and SBP. The SMI final rulemaking did not
allow continued use of the traditional meal pattern after June 30,
1998, the latest date that school food authorities could be authorized
to delay compliance with the Dietary Guidelines. Therefore, the
provisions for the traditional meal pattern for the NSLP were moved to
a separate section (Sec. 210.10a) so that schools could continue using
the traditional meal pattern until the newer menu planning alternatives
had been fully implemented. Similarly, the traditional meal pattern for
the SBP was redesignated as Sec. 220.8a.
Now that Public Law 104-149 has reinstated the traditional meal
pattern as a permanent, food-based menu planning alternative, this
proposal would incorporate it into paragraphs (d) and (k) of
Sec. 210.10 and into paragraphs (c) and (g) of Sec. 220.8 where the
requirements for the food-based menu planning alternative established
by the June 13, 1995, final rule are set forth. Sections 210.10a and
220.8a would be removed. Please note that, due to the statutory
amendment made after publication of the final rule, the
[[Page 27166]]
traditional menu planning approach will remain in effect after the July
1, 1998, implementation deadline in Sec. 210.10 (o) and Sec. 220.8(m).
To distinguish between the two food-based systems, the meal pattern in
effect for School Year 1994/1995 would be formally renamed the
``traditional food-based menu planning alternative.'' The food-based
menu planning alternative established in the June 13, 1995, rulemaking
would be renamed the ``enhanced food-based menu planning alternative.''
RDA for the Traditional Food-Based Menu Planning Alternative
One proposed revision to Sec. 210.10(d) of the NSLP regulations
would add a chart indicating the amounts of calories and required
nutrients that equal one-third of the RDA for key nutrients and
calories for the age/grade groups of the traditional food-based menu
planning alternative. A similar chart showing one-fourth of the RDA for
key nutrients and calories for breakfasts would be added to
Sec. 220.8(c). These additional charts are necessary as the traditional
food-based menu planning alternative follows different age/grade
groupings than used for the NSMP, ANSMP, and enhanced food-based menu
planning alternatives.
The Department recognizes the importance of offering meals that
provide a proportionate share of the nutritional needs of the nation's
schoolchildren, and that determination of whether those needs are being
met must be based on the most accurate data available. To this end, the
Department has calculated the RDA for each age group using computer
software specifically designed for this purpose. In creating the
enhanced food-based menu planning alternative, the Department developed
age/grade groupings that were averaged to more precisely meet the
calorie and nutrient levels at each age or stage of development.
Uniform groupings, based as closely as possible on the actual
nutritional needs of the various ages, for the two food-based systems
would be preferable. However, section 9(f)(4)(A)(i) of the NSLA
requires the availability of the traditional meal pattern as it existed
in the 1994-1995 school year. The Department, therefore, does not want
to add complexity to the traditional approach by proposing to make more
precise age/grade groupings apply to both food-based menu planning
alternatives. While this means menu planners using the traditional meal
pattern may continue to meet a single set of quantity requirements for
all children in the school, regardless of their age or grade, the
Department is concerned that this practice could undermine the
nutrition goals of the programs, since the food service would not be as
responsive to respond to the varying needs of children of different
ages. The Department recognizes the need to provide the traditional
approach without additional requirements but is also concerned with the
need to meet the appropriate nutrition standards. Therefore, interested
parties in the food service, nutrition and scientific communities may
wish to comment on the appropriateness of allowing a single age/grade
grouping and the associated nutrition standards.
``Any Reasonable Approach''
Public Law 104-149 amended section 9(f)(4) of the NSLA to permit
school food authorities to use ``any reasonable approach'' to menu
planning not specifically delineated in section 9(f)(3) and (4) of the
NSLA. The law makes it clear, however, that ``reasonable approaches''
must meet guidelines established by the Secretary. In developing
appropriate guidelines, the Department believes there will be two
distinct classes of proposed alternative approaches. First, some
proposed alternatives will consist of relatively minor modifications to
one or another of the four existing menu planning systems. For this
type of suggested alternative, the Department is proposing to allow
State agencies to establish a general policy allowing school food
authorities to adopt such approaches without prior Departmental
approval. The second class of alternatives will involve unique
proposals that depart significantly from existing systems. The
Department is proposing to redesignate Sec. 210.10(l) through (o) as
Sec. 210.10(m) through (p) and to add a new Sec. 210.10(l) to establish
basic requirements for authorizing both classes of alternate menu
planning approaches. For the SBP, Sec. 220.8(h) through (m) would be
redesignated as Sec. 220.8(i) through (n) and Sec. 220.8(h) would
provide for alternate menu planning approaches.
Minor ``Pre-Approved'' Modifications
The first proposed class of alternate approaches is specific, minor
modifications to provisions of the existing menu planning alternatives
and would be added at Sec. 210.10(l)(1) and Sec. 220.8(h)(1). While the
State agency may require prior approval or may establish additional
guidelines for their adoption, these modifications would be considered
``pre-approved'' in that State agencies may allow their use without any
additional review. Of course, as part of their general oversight
responsibilities under the NSLA, State agencies must ensure that the
school food authority's operations, including these ``pre-approved''
options, are consistent with the NSLP and SBP regulatory standards,
even if State agencies do not require pre-approval. The modifications
are: a weekly meat/meat alternate standard (for the NSLP only) and
flexible age/grade groupings for the food-based menu planning
alternatives (for both the NSLP and SBP). While only two modifications
are proposed, the Department solicits suggestions on similar variations
that could be included under this category of other approaches.
The Department was also asked to consider extending a policy
currently applicable only to lunches planned under the enhanced food-
based menu planning approach to the traditional food-based menu
planning approach. This policy, at Sec. 210.10(k)(2), allows menu
planners to credit up to one grain-based dessert daily towards the
weekly grain/bread requirements. This policy was established to provide
additional flexibility for menu planners as the number of required
grain/bread items increased substantially over the number required for
the traditional food-based menu planning approach. For example, for
grades 7-12, the traditional food-based alternative required eight
servings (but recommended 10) while 15 servings are required for the
enhanced food-based approach.
The Department gave this suggestion serious consideration. However,
crediting up to one grain-based dessert daily as a serving of grains/
breads for the traditional food-based menu planning alternative is too
significant a proportion of the total number of required grain/bread
items. A child selecting a grains-based dessert on a daily basis would
have the majority of their grains/breads component over the week met
through the consumption of dessert. Given this concern, the Department
is not proposing to extend this policy to the traditional food-based
menu planning approach. However, the Department would appreciate
comments on this issue.
1. Weekly Meat/Meat Alternate Quantity Standard
Some food service directors have indicated that it is not always
practical to offer the full daily minimum portion of the meat/meat
alternate component required for the NSLP under the food-based menu
planning alternatives. For example, a serving of less than the required
four tablespoons of peanut butter or two ounces of cheese in a sandwich
may produce a more
[[Page 27167]]
appealing entree while the full amount required can lead to waste. To
address this situation, those school food service directors have
suggested that schools using either of the food-based menu planning
systems be allowed the flexibility to vary the quantity of meat/meat
alternate on a daily basis as long as the total amount served over the
course of the school week equals the minimum daily quantity multiplied
by the number of serving days in the week. For example, the amount of
meat/meat alternate served on a given day could be only one ounce or
the equivalent provided that the full 10 ounces (for grades 4-12) or
equivalent of meat/meat alternate were available over a five day week.
This alternative would enable meal planners using a food-based
alternative much of the same flexibility enjoyed by their counterparts
using NSMP while still ensuring that minimum quantities of essential
foods were offered to children over a week's time.
After considering this suggestion, the Department agrees that it
could provide additional flexibility without compromising the
nutritional integrity of the meals served over the course of the school
week. However, the Department does not believe that the school food
authority's ability to vary the quantity of this component should be
completely unrestricted. Therefore, the Department is proposing to
require that a minimum of one ounce or its equivalent of meat/meat
alternate be offered daily. This proposal would ensure that the amount
of meat/meat alternate offered to the student will be reasonably
consistent each day while still providing menu planners with enhanced
flexibility. The Department emphasizes that the option to vary the size
of the meat component would not apply to those situations in which the
minimum quantity requirement is one ounce or less.
The Department is not proposing to extend this option to the meat/
meat alternate-grains/breads component of school breakfasts because
flexibility is already provided under the food-based menu planning
alternatives. However, comments are requested on whether extending the
weekly meat/meat alternate to the SBP would be useful and appropriate.
In proposing this option, the Department recognizes that there will
be complexities with its implementation, especially in schools that
offer multiple entree choices, since children may not select items over
the week that equal the full weekly meal component requirement.
Therefore, comments are particularly requested on these and other
potential difficulties as well as any suggestions on ways to ensure
that the nutritional integrity of the meal service is not compromised.
The modification for the meat/meat alternate component is proposed at
Sec. 210.10(l)(1)(i).
2. Flexible Age-Grade Groupings for Food-Based Alternatives
Children enrolled in a given school may span different age/grade
groupings for purposes of the nutrient and calorie level requirements
and corresponding portion sizes for components under the food-based
menu planning alternatives. Under the NSMP and ANSMP menu planning
alternatives, if only one age or grade is outside the established
nutrient and calorie level requirements for the majority of children,
schools are permitted, under Sec. 210.10(i)(1)(ii) and
Sec. 220.8(e)(1)(ii), to use the nutrition standards for that majority.
In the interests of consistency and flexibility, the Department is
proposing to extend this option to the food-based alternatives as well.
Under the proposal, schools using the enhanced food-based
alternatives would be permitted to plan menus using the minimum
quantity requirements applicable to the majority of children provided
that no more than one age or grade falls outside the requirements for
the majority of children. For example, if a school following the
enhanced food-based menu planning alternative serves children in grades
6, 7 and 8, the school may, if it chooses, plan menus meeting the
nutrient levels and quantities for grades 7 through 12 in lieu of
varying the menus and portion sizes for the children in grade 6. This
option would eliminate the need to meet two sets of nutrient and
calorie levels as well as portion requirements when only a limited
number of children are affected. The Department notes that this option
will generally be applicable to schools using the enhanced food-based
alternative since it is not needed for the traditional food-based menu
planning alternative because of the broader range of the groups and
because schools may use the portion sizes for the grades 4-12 group
when the school has a large number of grades. However, under the
proposal, this option could be adopted by schools using either food-
based menu planning alternative. This proposed change would be found at
Sec. 210.10(l)(1)(ii) for the lunch program and at Sec. 220.8(h)(1) for
the breakfast program.
The Department believes that school food authorities should plan
menus and offer meals that best meet the nutrient and calorie levels
for each age or grade group of all of the children. The age/grade
groupings are geared to best meet the recommended levels of calories
and other nutrients for a particular period in a child's development.
However, the Department also recognizes that allowing the proposed
option for schools using the food-based alternatives provides increased
flexibility.
Major Changes or New Alternatives
The second class of alternate approaches concerns major changes to
one of the existing menu planning systems and may be developed by
either school food authorities or State agencies. Within this second
class, the regulations, as proposed, would require that any major
change or new alternative developed by a school food authority be
subject to State agency review and approval. State agency approval is
critical because major variations developed and used only by a school
food authority need to be carefully assessed to gauge potential impact
on the delivery of meals to children, both nutritionally and fiscally.
Further, school food authority-level approaches would not have the
benefit of the State agency's expertise when forming their approach.
State agency-developed alternatives would be subject to Departmental
review and approval unless there was an on-going State agency/school
food authority partnership and enough school food authorities intending
to adopt the alternate approach to warrant the significant involvement
of the State agency.
Written Submissions
The Department is proposing that any alternate approach developed
by either a school food authority or State agency be committed to
writing prior to its implementation. The written description must
outline the intended procedures as well as indicate how the required
elements for alternate approaches (as proposed under Sec. 210.10(l)(3)
and Sec. 220.8(h)(3) for the lunch and breakfast programs,
respectively) will be met. For those approaches subject to prior
review, a written submission is needed to ensure a comprehensive
review. For those approaches not subject to prior review, a written
description needs to be available for monitoring purposes. The
Department is not, however, proposing any specific format or requiring
a formal plan, other than proposing that the intended procedures and
the required elements be addressed in writing for any proposed
alternative approach. This
[[Page 27168]]
provision is proposed at Sec. 210.10(l)(2) and Sec. 220.8(h)(2).
State Agency-Developed Systems: Approval Procedures
Some State agencies have developed or intend to develop their own
menu planning alternatives for use by their school food authorities.
State agency-developed alternatives could involve either extensive
modifications to one of the existing menu planning alternatives or
development of an altogether new alternative. As mentioned above, the
Department is proposing different approval procedures for State agency-
developed approaches depending on whether there is on-going,
operational support from the State agency.
For the purpose of approval, the first type of a State-agency
developed alternate approach is one that the State agency develops and
then makes available to its school food authorities without on-going
support and assistance. Because the State agency will not have any on-
going operational role in such approaches, the Department believes
independent review is essential prior to implementation of an alternate
approach by any school food authority. This review would ensure that
the changes or the new alternative adequately meets program
requirements and goals. Therefore, the Department is proposing to
require State agencies to submit this type of alternate approach to the
Food and Nutrition Service (FNS) for review and approval before
implementation. The approval procedures are proposed at
Sec. 210.10(l)(2) and Sec. 220.8(h)(2), respectively, for the lunch and
breakfast programs.
The second type of alternate approach would also involve either
extensive modifications to one of the existing menu planning
alternatives or development of an altogether new alternative. The
Department is proposing that these approaches not be subject to
approval by FNS when the State agency is an active and on-going partner
with the school food authorities, if there are a sufficient number of
school food authorities adopting it to warrant the State agency's
commitment of resources necessary to its successful operation and the
State agency issues an announcement notifying the public of the
alternate approach. With the State agency's active involvement, there
is oversight as well as the ability to promptly adjust the policies and
procedures of the approach to ensure efficient and effective operation
and compliance with all applicable requirements. The Department is
proposing that these approaches must be adopted by at least five school
food authorities within the State. The proposed requirement for a
public announcement allows for review of the State agency's approach by
any concerned parents, students, program administrators, etc. In
addition to the public announcement, the Department considered
requiring that State agencies hold public hearings (in accordance with
established State procedures) on these types of alternative approaches.
The Department would appreciate comments on whether public hearings, in
addition to the public announcement, are a more effective way to notify
the public and whether the benefits of conducting a hearing outweigh
the costs to the State agency.
This type of State agency-developed alternate approach is intended
to allow innovative, large-scale State agency-sponsored menu planning
systems to operate without prior approval. An example of a large-scale
system that extensively modifies current regulatory requirements
(specifically the weighting component and software requirements for
NSMP) is the Shaping Health as Partners in Education (SHAPE) program,
which has been successfully operated in California for several years.
Because the SHAPE program is already operational, the requirement for
issuing a public announcement is not applicable.
The Department emphasizes that the different approval requirements
for the State agency-developed alternate approaches are based on the
differing degrees of State agency involvement. When the State agency is
acting as a partner and is routinely assisting school food authorities
and providing technical assistance, it can, if needed, quickly
determine if implementation at the local level is not successful or if
the system itself needs to be modified to meet the required elements
such as compliance with the nutrition standards. In the other
situations, there is no continuous State agency presence. Instead, the
State agency simply makes the system available to local school food
authorities as another option from which they may chose and would only
be able judge its effectiveness under normal review procedures.
Therefore, the Department is proposing, at Sec. 210.10(l)(2)(iii) and
Sec. 220.8(h)(2)(iii), that any State-agency developed system is not
subject to prior FNS approval if five or more school food authorities
adopt the approach, if the State agency maintains on-going oversight
including making adjustments to the approach's policies and procedures,
as needed, to ensure compliance with the nutritional and other meal
service requirements, and if the State agency makes a public
announcement concerning the alternate menu planning approach prior to
its implementation by any school food authority. Please keep in mind,
though, that all alternate approaches would be subject to the proposed
minimum requirements discussed below.
Required Elements for Alternate Approaches
In devising the guidelines for reasonable approaches other than the
proposed ``pre-approved'' modifications, the Department balanced the
necessity to foster innovation and flexibility with the equally
compelling need to maintain program accountability administratively,
fiscally and nutritionally. The basic consideration is that every menu
planning alternative, regardless of the source or the level of
approval, must meet all statutory requirements. Also, the Department is
proposing to include a limited number of guidelines that are based on
discretionary regulatory procedures that the Department feels are
essential to effective and efficient program management unless the
alternate approach is one of the distinct situations with on-going
State involvement (the second type discussed above). With this extra
involvement and oversight by the State agency, school food authorities
would be provided additional flexibility.
Offering Fluid Milk
Section 9(a)(2) of the NSLA (42 U.S.C. 1758(a)(2)) requires that
school food authorities offer fluid milk to children participating in
the NSLP. Section 4(e)(1)(A) of the Child Nutrition Act of 1966 (CNA),
(42 U.S.C. 1773 (e)(2)), requires that a combination of foods be served
in the SBP and that breakfasts ``* * * meet minimum nutritional
requirements prescribed by the Secretary * * *'' The provision of fluid
milk is one of the minimum nutritional requirements established for the
SBP under Sec. 220.8(h). Therefore, any alternate menu planning
approach must also offer fluid milk for both the NSLP and SBP. The
provisions requiring milk to be offered in the school programs for any
alternate approach are proposed at Sec. 210.10(l)(3)(i) and
Sec. 220.8(h)(3)(i), for the NSLP and SBP, respectively.
Offer Versus Serve (OVS)
Section 9(a)(3) of the NSLA (42 U.S. C. 1758(a)(3)) requires that
schools implement OVS in the NSLP for senior high school children; at
local option, school food authorities may adopt OVS in the lunch
program for lower grades as well. Under section 4(e)(2) of the CNA (42
U.S. C. 1773 (e)(2)), local
[[Page 27169]]
school food authorities may also implement OVS for the SBP. OVS
encourages children to make selections that they prefer, thus helping
to reduce plate waste. Because of the statutory mandate, any menu
planning alternative designed by an school food authority or State
agency for use in the NSLP must include OVS for senior high school
children. OVS will continue to be optional at the discretion of school
food authorities in the SBP.
While OVS would continue to be required for senior high school
students, school food authorities and State agencies would be permitted
by this rulemaking to propose alternatives to the OVS approaches
currently permitted in the regulations. Such approaches must be based
on the existing regulatory OVS structures as much as possible. For
example, OVS for alternate food-based systems must be patterned on the
OVS requirements in Sec. 210.10(k)(6) and Sec. 220.8(g)(3), while those
for alternate NSMP approaches must be based on the requirements of
Sec. 210.10(i)(2)(ii) and Sec. 220.8(e)(2)(ii).
If the existing OVS procedures in Sec. 210.10(k)(6)/
Sec. 220.8(g)(3) or Sec. 210.10(i)(2)(ii)/Sec. 220.8(e)(2)(ii) are not
followed, the description of the alternate approach must indicate what
age/grade groups are included, how plate waste would be reduced and how
the meal, as taken, will provide a reasonable level of nutrients and
calories. As discussed in more detail below, any modifications to the
existing OVS procedures must include the number and type of items (and,
if applicable, the quantities for the items) that constitute a
reimbursable meal. These provisions on OVS in alternate menu planning
approaches are proposed at Sec. 210.10(l)(3)(ii) and
Sec. 220.8(h)(3)(vi) for the lunch and breakfast programs,
respectively.
Nutrition Standards
As discussed earlier, the NSLA requires school lunches to
approximate, over a week's time, one-third of the RDA needed by growing
children of different ages. School breakfasts must provide one-fourth
of the RDA. In addition, the menus must comply with the recommendations
of the Dietary Guidelines. These requirements cannot be modified.
Therefore, any alternate menu planning approach must ensure that
these standards, as implemented in Sec. 210.10(b)(1)-(b)(4) for the
NSLP and Sec. 220.8(a)(1)-(a)(4) for the SBP, would be met or exceeded
for the age/grade groups to be served. In addition, the alternate
approach must indicate how the proposal is designed to meet these
standards. The requirements are proposed at Sec. 210.10(l)(3)(iii) and
Sec. 220.8(h)(3)(ii).
Competitive Foods
For both the NSLP and SBP, Section 10(a) of the CNA (42 U.S.C.
1779(a)), requires regulations ``* * * relating to the service of food
* * * in competition with the [school meals] programs * * *.'' To
implement this provision, Sec. 210.11(b) and Sec. 220.12(a) prohibit
the sale of foods of ``minimal nutritional value'' in the cafeteria
area during the service of meals. Appendix B to each of these parts
lists the foods considered to be foods of minimal nutritional value.
Any alternate approach may not alter this statutory provision and the
implementing regulations. This restriction is proposed at
Sec. 210.10(l)(3)(iv) and Sec. 220.8(h)(3)(iii) for the lunch and
breakfast programs, respectively.
Crediting Foods Under Food-Based Type Approaches
Paragraphs (k)(3)-(k)(5) and (m) of Sec. 210.10; Sec. 220.8(g)(2)
and (i); and the Appendices to Parts 210 and 220 provide the basic
crediting policies for food items offered in the school meals programs
for food-based menu planning alternatives. These crediting policies are
expanded upon in FNS instructions and guidance. This proposal would
require that any alternate food-based menu planning approaches follow
the existing food crediting policies for school meals. The Department's
standards for crediting food items are designed to maintain the
nutritional integrity of school meals by ensuring that foods used to
satisfy quantity and component requirements provide a sufficient amount
of the component or its equivalent to count toward meeting the meal
requirements.
To be credited, foods must be both present in the minimum required
quantities and identifiable as at least one of the required food
components of the meal pattern (meat/meat alternate, fruits/vegetables,
grains/breads and fluid milk). These foods may be served as single food
items or as combinations in recipes or in commercially processed foods.
To assist in the identification of the definition of the basic foods,
the Department relies on government and industry standards of identity
and/or specifications. These standards are essential to ensuring that
the individual meal merits Federal reimbursement and that the meal
service, over time, complies with the programs' nutrition standards.
Therefore, the Department is proposing at Sec. 210.10(l)(3)(v) and
Sec. 220.8(h)(3)(v) that the minimum quantities established to credit
food items as components under the food-based menu planning systems be
adhered to in any food-based menu planning alternate approach.
Identification of a Reimbursable Meal
The concept of a reimbursable meal is essential to program
integrity. Sections 210.10 and 220.8 of the regulations establish
definitions of a reimbursable meal for the four menu planning
alternatives currently recognized by the NSLA. Under the traditional
meal pattern and the enhanced food-based menu planning system for
lunches, the school food authority must offer minimum quantities of a
meat/meat alternate, a grain/bread item, two separate fruits/vegetables
and fluid milk as a beverage. This requirement is found at
Sec. 210.10(k). Under NSMP and ANSMP, the school must offer an entree,
fluid milk and at least one additional menu item for lunches. This
requirement is found at Sec. 210.10(i)(2)(i) for the NSLP. The parallel
requirements for the SBP are at Sec. 220.8 (e) and (g).
This proposal would require that any alternate approach comply with
the current requirements for reimbursable meals to the extent possible.
When the existing procedures are not followed, the proposed alternate
approach must detail what constitutes a reimbursable meal, including
the number and type of item (and if applicable, the quantities for each
item) and how a reimbursable meal is to be identified at the point of
service by the children, the cashiers, and any reviewers. The proposals
appear at Sec. 210.10(l)(3)(vi) and Sec. 220.8(h)(3)(v), respectively,
for the school lunch and breakfast programs.
Monitoring Compliance
Section 210.18 of the regulations establishes methods for
determining if school food authorities are meeting the administrative
requirements for the school meals programs while Sec. 210.19 provides
for reviewing compliance with the nutrition standards. In determining
the essential elements for any alternate approach, the Department
believes that these monitoring aspects must be incorporated so that the
State agency can determine if reimbursable meals are being offered,
accepted, and properly counted and if the meal service is in compliance
with all of the nutrition and administrative standards.
The Department expects that, in most cases, alternate approaches
can be monitored within the existing criteria for both coordinated
review effort (CRE) and nutrition reviews. As discussed below, some
aspects of Performance Standard 2 in Sec. 210.18 must be modified
[[Page 27170]]
to take into account the flexibility for alternate approaches. However,
the Department does not believe that the procedures for conducting CRE
reviews will need to be revised in order to accommodate alternate
approaches. Therefore, this rule would require, in Sec. 210.10(l)(vii)
and Sec. 220.8(h)(3)(vi), that the alternate approach be subject to CRE
reviews under the current procedures provided in Sec. 210.18.
However, in some cases, the proposed alternate approach may not
lend itself to the established nutrition review methods. Therefore, to
allow the State agency to ensure that an alternate approach can be
reviewed adequately for compliance with the nutrition standards, any
alternate approach must include either an explanation of how the
alternate approach could be monitored within the existing criteria in
Sec. 210.19 or a comprehensive nutrition monitoring plan that the State
agency could follow. As part of this plan, the alternate approach must
include a description of the records it will maintain to document
compliance with administrative and nutrition requirements. This
provision is proposed at Sec. 210.10(l)(3)(vii) and
Sec. 220.8(h)(3)(vi) for both the administrative and nutrition review
aspects. Conforming amendments are also proposed to Sec. 210.19(a) and
are discussed in greater detail later in this preamble.
Weighted Averages for NSMP/ANSMP
Sections 210.10(i)(5) and 220.8(e)(5) require school food
authorities using NSMP or ANSMP to conduct nutrition analyses by
weighting all foods planned as part of the reimbursable meal service.
This weighting is done according to the frequency with which each food
is actually offered. The purpose of weighting is to assist in ensuring
that meals actually offered to children meet the nutrition standards.
The Department acknowledges that weighted averages are not the only way
to ensure compliance with the nutrition standards. In fact, in order to
make the transition to the updated menu planning methods easier and to
ensure that every avenue for promoting sound nutrition is explored, the
Department has authorized temporary waivers of this regulatory
requirement. The waivers allow the Department the opportunity to
evaluate weighted and unweighted averages to determine their accuracy
in indicating determinations of compliance with the nutrition
standards. The Department believes that this temporary postponement
through a State agency waiver is the appropriate way to ease
implementation and to permit further evaluation of this requirement. As
part of this evaluation process, the Department is particularly
interested in receiving comments on the use of a weighted nutrient
analysis versus nonweighted approaches. Comments from operators using
nutrient analysis and their experiences with weighting would be
especially helpful. The Department would also like comments from State
agency reviewers and their experiences with weighting when evaluating
meal services.
However, until the Department determines that alternatives to
weighted averages adequately ensure that meals comply with the
nutrition standards, weighted averages continue to be required for NSMP
systems other than those for which a waiver has been granted.
Accordingly, the Department is proposing to require compliance with the
weighting requirements for alternate NSMP-type approaches. However, the
Department is proposing to provide added flexibility in those instances
in which the State agency has developed the alternate approach and is a
partner with at least five school food authorities and maintains on-
going oversight of the operation and evaluation. The level and
consistency of the State agency's involvement coupled with a more rapid
response to problems in order to make needed adjustments allows for
further innovation. These provisions are proposed at
Sec. 210.10(l)(3)(viii) and Sec. 220.8(h)(3)(vi).
Approved Software for NSMP and ANSMP
Sections 210.10(i)(4) and 220.8(e)(4) require menu planners using
NSMP or ANSMP to conduct or to have their analyses conducted using
software that incorporates the National Nutrient Database for Child
Nutrition Programs and is approved by FNS. The software must meet the
minimum requirements established by FNS such as having the capability
to perform all functions required after the basic data has been
entered, including calculating weighted averages, and the optional
combining of the analyses of the NSLP and SBP. The Department is aware
that there are many nutrition software packages available; however,
many of these are for individuals or for clinical settings such as
hospitals. The software approved by FNS is designed to meet the needs
of school food service professionals and fulfills two essential
criteria--the ability to perform all the requirements of the
regulations and the achievement of uniform results. The Department also
notes that the number and variety of software packages approved to date
ensures that school food authorities have extensive flexibility in
choosing a package that best meets their individual needs. Therefore,
this proposal would require, at Sec. 210.10(l)(3)(viii) and
Sec. 220.8(h)(3)(vii), that any alternate approach use approved
software.
Again, however, the Department is proposing to allow modification
of the required specifications for software for any alternate approach
under the same limited circumstances allowing for modification of
weighted analysis. In those situations in which the State agency
developed the alternate approach and remains an active partner and five
or more school food authorities adopt the alternate approach, the
Department is proposing, at Sec. 210.10(l)(3)(viii) and
Sec. 220.8(h)(3)(vii), to permit the use of software which does not
meet the regulatory requirements. While this means that the software
would not need to incorporate the National Nutrient Database nor would
it be required to have prior FNS approval, the alternate approach would
still need to meet all the nutrition standards. Again, the Department
believes that the on-going State agency oversight provides sufficient
assurance that any software will provide appropriate nutrient analysis
and, to the extent that deficiencies are identified, that they will be
rapidly addressed.
The Department also wishes to emphasize that weighted analyses and
standard software packages do not, in and of themselves, determine the
kinds and amounts of foods provided. Rather, they are fundamentals in
the internal monitoring system which enables schools, school food
authorities, and State agencies to measure the success of the food
service in complying with the nutrition standards. Consequently,
modification of these requirements, without substantial care and
involvement by the State agency, may undermine the accuracy of the
nutrition analysis and compromise the ability of menu planners to make
necessary adjustments. This is the basis for the Department's decision
to not apply the weighting and software specification requirements to
those situations in which there will be substantial State agency
involvement and oversight.
Monitoring Requirements for Compliance With the Nutrition Standards
The Department is proposing to clarify some aspects of the
nutrition monitoring requirements in order to ensure appropriate State
agency oversight of all menu planning alternatives. In addition, some
conforming amendments are proposed due to the reinstatement of the
[[Page 27171]]
traditional food-based menu planning alternative and the availability
of alternate approaches.
Monitoring Procedures for the Traditional System and for Alternate
Approaches
The current monitoring provisions for the food-based and nutrient
standard menu planning alternatives are found at Sec. 210.18 and
Sec. 210.19. As discussed earlier, any alternate approach must be
capable of being monitored under Sec. 210.18. In addition, if the
alternate approach cannot be monitored under Sec. 210.19, there must be
a description of alternate monitoring procedures to ensure compliance
with the fiscal, administrative and nutrition standards.
This proposed rule would amend Sec. 210.18 and Sec. 210.19 to make
clear that the existing monitoring requirements apply to the
traditional food-based menu planning alternative as well as to the
enhanced food-based and nutrient standard menu planning systems. In
addition, technical amendments are made to modify the terminology in
Sec. 210.18 and Sec. 210.19 related to Performance Standard 2 which
establishes review criteria to assure that the lunches served by
schools are reimbursable. In other words, any school lunch must contain
whatever meal elements that are required for reimbursable lunches under
each of the menu planning alternatives. In order to clarify that all
the various menu planning approaches are subject to Performance
Standard 2, technical amendments are proposed to Sec. 210.18(b)(2)(ii),
(g)(2), and (i)(3)(ii) and to Sec. 210.19(c)(6)(i) to reference the
various terms used to stipulate the elements in a reimbursable meal.
Finally, Sec. 210.19 would be amended to make clear that the
nutrition review procedures for food-based and nutrient standard
alternate approaches are the same as those for food-based and nutrient
standard menu planning systems, respectively, except for those
alternate approaches that do not lend themselves to existing nutrition
review procedures. In those cases, the nutrition review procedures are
those review procedures developed under Sec. 210.10(l).
Adjustments to Review Periods
The Department is proposing to adjust the review period for
nutrition reviews. Currently, paragraphs (a)(1)(i) and (ii) of
Sec. 210.19 stipulate that the State agency is to review the school's
nutrition analysis or conduct an independent analysis for the last
completed week prior to the review. The intent of this provision was to
ensure that the analysis reflected the current state of the meal
service. However, some State agencies have noted that, under CRE, as
detailed in Sec. 210.18, State agencies select the month prior to the
month of the review as the sample period. Consequently, State agencies
which would elect to conduct nutrition reviews concurrently with CRE
reviews will likely need to look at two different review periods during
the same visit. Therefore, in the interests of efficiency, this
proposal would permit reviewers to conduct the assessment of compliance
with nutrition standards for any week of the current school year prior
to the month of the review. However, the week selected must continue to
represent the current state of the meal service. The State agency could
select, for example, a week for the nutrition review that was in the
same month in which a CRE was scheduled. The Department believes that
this proposed provision will still allow State agencies to determine
whether the program is in compliance with the nutrition standards and,
if necessary, prescribe appropriate steps for improvements by requiring
review of a relatively current period that is typical of the on-going
meal service. This change is proposed at Sec. 210.19(a)(1)(i).
Extent of Reviews
Another proposal would amend Sec. 210.19(a) to clarify that, during
the review cycle, State agencies must review at least one school for
each type of menu planning alternative used by the school food
authority. For example, if eight schools in a school food authority use
the traditional meal pattern, three use the enhanced food-based system
and five use NSMP, the State would select at least one school from each
category. The Department recognizes that, in some cases, this
requirement would result in more schools being visited for nutrition
compliance than are required to be reviewed under CRE. The Department
believes, however, that this coverage is essential to ensure that the
school food authority is following all alternatives correctly. For
example, a school food authority may be achieving great success with
the enhanced food-based system but may not be conducting NSMP properly.
The only way for the State agency to identify this problem, provide
appropriate technical assistance and require corrective action is to
examine the school food authority's experience with all alternatives in
use. This amended is proposed at Sec. 210.19(a)(1).
The proposal would also clarify that State agencies are required to
perform the necessary nutrition review on only the lunch program unless
the school food authority uses a particular menu planning alternative
only for the breakfast program. For example, if all of the schools in a
school food authority use either NSMP or the enhanced food-based system
for lunch, and at least some of the schools use the traditional food-
based menu planning alternative for breakfast, the State agency would
need to conduct two lunch reviews (one of a school using NSMP and one
of a school using the enhanced food-based system) and one review of a
breakfast program which uses the traditional meal pattern. However, if
all three of these alternatives are used for the lunch program in the
school food authority, no review of the breakfast program would be
needed. The Department cautions, however, that if the lunch review
indicates that the school food authority needs technical assistance
and/or corrective action, the State agency may wish to review a
breakfast program as well to determine if the school food authority
needs to take specific corrective action for that program as well. In
these cases, the review of the breakfast program could be done either
at the time of the initial lunch review or as part of any follow-up
needed to further evaluate the results of technical assistance or
corrective action.
Conforming Review Cycles
Finally, the Department is proposing a minor technical amendment to
Sec. 210.19(a)(1)(i) to make the cycle for nutrition reviews consistent
with the cycle for administrative reviews under CRE. The SMI rule
established a five-year cycle for reviews of nutrition compliance and
intended that cycle to run concurrently with the CRE cycle so that
those States electing to conduct nutrition reviews at the same time as
administrative reviews could do so efficiently. The regulation
currently stipulates that the first five-year cycle would begin on July
1, 1996, unless the State agency authorized a temporary waiver of
compliance with the nutrition standards, in which case the first year
of the cycle could begin as late as July 1, 1998. Consequently, the
first five-year cycle would end as early as June 30, 2001 or as late as
June 30, 2003, depending upon actual implementation. The current CRE
cycle ends on June 30, 1998, however, and the next cycle will end on
June 30, 2003. Therefore, the two review cycles would be out of
sequence for State agencies which implement the regulations before
School Year 1998/1999.
While State agencies are not required to conduct nutrition reviews
at the same time as administrative reviews, the Department proposes to
make the two
[[Page 27172]]
review cycles coincide so that State agencies may avail themselves of
this option efficiently. To achieve this goal, therefore, the
Department is proposing to establish an initial cycle of seven years
for nutrition reviews, from July 1, 1996 through June 30, 2003.
Thereafter, review cycles would be five years in length. This expanded
cycle would allow State agencies more flexibility during the
implementation phase to complete reviews and provide schools with
necessary assistance.
The Department notes that the extended time frame for completing
nutrition reviews increases the need for State agencies to identify
school food authorities that may have menu planning difficulties in
order to schedule visits to them as early as possible in the cycle. The
Department also would like State agencies to comment on any increased
potential for noncompliance that might result from this extension and
whether or not the Department should consider establishing intermediate
review goals within the cycle.
Updating the Dietary Guidelines and Other Technical Changes
Section 9(f)(1)(A) of the NSLA requires that schools offer meals
consistent with the goals of the ``most recent Dietary Guidelines for
Americans.'' The June 13, 1995, SMI rulemaking incorporated the 1990
edition of the Dietary Guidelines as program requirements because they
were, at that time, the latest official version. The Department
indicated, however, that later editions would be incorporated to
reflect any revisions to the recommendations. In December 1995, the
Department, in partnership with the Department of Health and Human
Services, issued the 1995 edition. While there were no substantive
differences between the 1995 edition and the 1990 edition, there were
some minor language revisions. Therefore, the Department is taking this
opportunity to propose amending Sec. 210.10(b)(3) and Sec. 220.8(a)(3)
to incorporate the minor wording changes of the 1995 guidelines, and to
change references to the 1990 guidelines to 1995.
The 1995 Dietary Guidelines also include the suggestion that the
diets of children between the ages of two and five should be gradually
altered so that, by age five, they receive no more than 30 percent of
their calories from fat. Since the Dietary Guidelines do not treat this
suggestion as a formal recommendation, the Department is not
incorporating it into Sec. 210.10(b)(3) or Sec. 220.8(a)(3), where the
Dietary Guidelines' recommendations are enumerated. However, a footnote
containing this information would be added to the charts in
Sec. 210.10(c)(1), Sec. 210.10(c)(2), Sec. 210.10(d), Sec. 220.8(b)(1),
Sec. 220.8(b)(2) and Sec. 220.8(c)(1). The Department is also aware
that the RDA are in the process of being reviewed and that an update is
scheduled to be released in 1999. At that time, the Department will
propose any needed revisions to the key nutrient and calorie levels.
The name of the database used in the nutrient analysis software has
been changed from the ``National Nutrient Database for the Child
Nutrition Programs'' to the ``Child Nutrition Database.'' This proposal
would, therefore, update the references to the database in
Sec. 210.10(i) and Sec. 220.8(e).
It was brought to the Department's attention that there was a
misstatement in the preamble of the final regulation published on June
13, 1995. The regulation, Child Nutrition Programs: School Meal
Initiatives for Healthy Children, was published in the Federal Register
at 60 FR 31188. The erroneous statement at 60 FR 31203 was:
* * * program regulations (Sec. 210.11(a) and Sec. 220.12(a))
prohibit the sale of certain foods of minimal nutritional value in
the food service area between the start of school and the last lunch
period of the day.
The correct policy is contained in Sec. 210.11(b) for the NSLP. The
correct policy is:
Such rules or regulations [established by State agencies or
school food authorities] shall prohibit the sale of foods of minimal
nutritional value, as listed appendix B of this part, in the food
service areas during the lunch periods.
(Emphasis added)
This policy may found for the SBP at Sec. 220.12(a).
Although the statement in the preamble was incorrect, the actual
regulatory language contained in Sec. 210.11 (b) was correct. The
Department regrets any confusion this error may have caused.
Appendix to Preamble--Regulatory Cost/Benefit Assessment
1. Title: National School Lunch Program and School Breakfast
Program: Additional Menu Planning Alternatives.
2. Background:
a. Need for Action: Public Law 104-149, the Healthy Meals for
Children Act, amended the National School Lunch Act by expanding the
number of alternatives available to plan menus for the school meals
programs. Section 9(f) of the National School Lunch Act was amended
to allow schools to continue using the meal planning system in
effect in School Year 1994-95 as well as the other meal planning
alternatives already available. In addition, the Act was amended to
allow schools to use ``* * * any reasonable approach, within
guidelines established by the Secretary * * *''.
The menu planning system in effect in School Year 1994-95 was
the ``traditional pattern'' which has been in use for many years,
and which requires four components (meat/meat alternate, breads/
grains, fruits/vegetables and milk) and five items. Because this
alternative was to be deleted from the regulations at the end of the
implementation period (July 1, 1998), this proposal would reinstate
this alternative permanently. In addition, this proposal would
establish the guidelines for ``any reasonable approach'' to ensure
that schools continue to serve reimbursable meals and provide proper
accountability for Federal reimbursement while still having the
flexibility to design a menu planning alternative that meets their
particular needs.
Before the Department issued a proposal to implement Public Law
104-149, Public Law 104-193, the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 was enacted on August 22,
1996. This law further amended the National School Lunch Act to
mandate that school lunches provide, over a week, one-third of the
Recommended Dietary Allowances (RDA) and that school breakfasts
provide one-fourth of the RDA. These requirements are, however,
already included in the school programs' regulations.
b. Affected parties: The entities affected by this proposal are
State agencies, school food authorities, the nation's school
children, and the Food and Nutrition Service.
c. Promotes the President's Priorities: This proposal would
promote the President's commitment to flexibility for program
administrators while continuing to support the objectives of
providing meals to the nation's school children that meet the
Dietary Guidelines for Americans and other established nutrition
standards.
3. Statutory Authority: Public Law 104-149.
4. Cost-Benefit Assessment of Economic and Other Effects:
Reinstatement of the Traditional Meal Pattern
Background: The proposed regulation would reinstate the meal
pattern in effect in School Year 1994-1995 as one menu planning
alternative. The meal pattern would be incorporated into the section
of the regulation establishing the food-based menu planning
alternatives and would be entitled the ``traditional food-based menu
planning alternative.'' The food-based alternative implemented in
the June 5, 1995, final rule would be renamed ``the enhanced food-
based menu planning alternative.'' The provision would provide a
table with the minimum levels of nutrients (calories, protein,
calcium, iron, Vitamin A, and Vitamin C) for the age/grade groups of
the meal pattern. Further, the provision makes minor conforming
amendments to allow for monitoring compliance with the nutrition
standards for this additional menu planning alternative.
Effects of Reinstating the Traditional Meal Pattern
Benefits: The provision permanently reinstating the meal pattern
in effect during
[[Page 27173]]
School Year 1994-1995 will allow schools to use a meal pattern with
which they are familiar. Extensive experience with the traditional
meal pattern has allowed schools to successfully develop menus that
meet program requirements and are popular with students. The
reinstatement of the traditional meal pattern provides schools with
an additional menu planning option and even greater flexibility in
meeting the nutritional needs of students.
The rule extends nutrition monitoring provisions pertaining to
reviews of the enhanced food-based menu planning option to reviews
of schools using the traditional meal pattern. School lunches are
required to provide, over a week's time, one-third of the RDA for
key nutrients (protein, calcium, iron, vitamin A and vitamin C) and
calories needed by growing children of different ages. School
breakfasts are required to provide, over a week's time, one-fourth
of the RDA for key nutrients (protein, calcium, iron, vitamin A and
vitamin C) and calories needed by growing children. In addition,
schools should be making progress towards providing meals which
comply with the Dietary Guidelines, including the recommendations
that no more than 30 percent of calories come from fat and that
saturated fat be limited to less than 10 percent of calories. The
extension of this provision to the traditional food-based meal
planning systems will ensure that children in schools using this
system will receive meals of comparable nutritional quality as
children in schools using the enhanced food-based menu plan. This
provision does not require any additional burden of school food
authorities as regulations require any menu planning system to
provide comparable levels of RDAs for key nutrients and comply with
the Dietary Guidelines.
Costs: The 1993 USDA School Nutrition Dietary Assessment Study
(SNDA) assessed the nutritional quality of lunches served under the
traditional meal pattern. SNDA found that the amount of nutrients in
the average school lunch provided under the traditional meal pattern
exceeded the standard of one-third of the daily RDA for the age
groups at the elementary, middle, and high school level for most
nutrients. However, the average percentage of food energy from total
fat offered in school lunches was 38 percent, compared with the
Dietary Guideline goal of not more than 30 percent; the percentage
from saturated fat was 15 percent, compared with the Dietary
Guideline of less than 10 percent.\1\ In addition, the Continuing
Survey of Food Intake by Individuals (CSFII), 1989-91 found that
school-age children have average daily intakes of 33.7 to 34.7
percent of calories from fat, and 12.6 to 13.3 percent of calories
from saturated fat depending on age-sex group.
---------------------------------------------------------------------------
\1\ Burghardt, JC, A. Gordon, N. Chapman, P. Gleason, T. Fraker
(1993). The School Nutrition Dietary Assessment Study: School Food
Service, Meals, and Dietary Intakes. October 1993.
---------------------------------------------------------------------------
The SNDA and CSFII findings heightened awareness of the need to
improve the nutritional quality of school meals. In response the
Department initiated the School Meals Initiative for Healthy
Children, the first program-wide reform of the school meals program
since its establishment in 1946. Since the introduction of the
School Meals Initiative the Department has provided training and
technical assistance designed to assist school food service
personnel in implementing the Dietary Guidelines. FNS has sponsored
training on the preparation of healthier meals; provided recipes
which are lower in fat and sodium; and issued grants to assist State
agencies in establishing statewide training systems to assist local
agencies in implementing the Dietary Guidelines. The Department has
also increased efforts to provide lower fat commodities to local
school districts.
Even with increased efforts by the Department, State agencies
and school food authorities to provide schools with the knowledge
and skills necessary to successfully implement the Dietary
Guidelines, the possibility still exists that it might prove
difficult for some schools using the traditional food-based meal
pattern to comply with the recommendations. In these instances, it
may be necessary for the school food authority or the State agency
to provide further training of the school food service personnel to
enable them to successfully develop meal patterns which comply with
the Dietary Guidelines.
The State agency will be responsible for monitoring progress
towards meeting the Dietary Guidelines and nutrition standards and
for making adjustments in procedures that schools follow in order to
ensure effective progress toward eventual compliance with the
updated nutritional requirements. Should a number of schools using
the traditional food-based menu pattern encounter difficulty in
meeting the Dietary Guidelines, the State agency will need to
cooperate with the school food authority in designing corrective
action to rectify the deficiencies. Additionally, the State agency
will need to monitor the execution of corrective action taken by the
school food authority to ensure that progress is being made towards
meeting the Dietary Guidelines.
Since most State agencies used the1996-1997 school year to train
staff to conduct the nutrient analyses, the number of analyses that
were actually completed was fewer than expected. As a result, there
is no data available on the number of school food authorities that
fail to meet the nutrient standards and need to take corrective
action.
Any Reasonable Approach to Meal Planning
Benefits: Public Law 104-149 permits school food authorities to
use ``any reasonable approach'' to menu planning not specifically
delineated in the regulations. The law makes it clear, however, that
approval of other ``reasonable approaches'' must be in accordance
with guidelines established by the Secretary. In developing
appropriate guidelines, the Department considers that there are two
classes of additional reasonable approaches. The first class of
reasonable approaches consists of alternatives which are essentially
relatively minor modifications to one or another of the existing
menu planning systems. The second class of alternatives would
involve unique proposals that depart significantly from the existing
systems.
Minor Modifications
The Department believes that minor modifications to existing
meal planning systems do not pose significant questions about
nutritional content or program integrity. Therefore, to reduce
unnecessary paperwork, the Department is proposing to authorize
State agencies to permit their school food authorities to choose any
of the following adaptations without applying to the State agency
for approval. The decision to authorize any or all of these
modifications rests entirely with the State agency. State agencies
may establish a general policy allowing school food authorities to
adopt any or all of these approaches without prior approval or chose
to review requests from school food authorities. The preapproved
approaches are:
1. Weekly Meat/Meat Alternate Quantity Standard: Schools using
one of the food-based menu planning systems would be allowed the
flexibility to vary the quantity of the meat/meat alternate on a
daily basis as long as the total amount served over the course of
the school week equals the minimum daily quantity multiplied by the
number of serving days in the week. Schools would still be required
to serve a minimum of one ounce of meat/meat alternate daily.
2. Flexible Age-Grade Groupings for Food-Based Systems: Under
the analysis-based menu planning options, if only one age or grade
in a school is outside the established RDA and calorie requirements
for the majority of students, schools are permitted to use the
nutrition standards for that majority. In the interests of
consistency and flexibility, the Department is proposing to extend
this option to the food-based systems as well.
Innovative Approaches
The second class of other reasonable approaches involves
innovative systems that are not currently established in program
regulations and guidance. These innovative menu planning systems
could be developed by school food authorities for use in their
schools, or developed by State agencies and made available to their
school food authorities. The Department envisions two approaches
that State agencies could take in developing menu planning systems.
It would be possible for a State to develop a unique menu planning
system and then refrain from being involved in the operation or
evaluation of the system. In these cases, the system would have to
be submitted to the Department for approval before implementation.
The second scenario involves systems developed by the State, used by
multiple school food authorities (at least five) within the State,
and the State agency remains an active partner in the operation and
evaluation of the system on an ongoing basis and issues an
announcement notifying the public of the alternate menu planning
approach. In this case, the State would not be required to submit
the system to the Department for approval prior to implementation.
Any meal planning system proposed by a school food authority or
a State agency
[[Page 27174]]
would have to be assessed for its potential impact on the delivery
of meals to children, both nutritionally and fiscally. To achieve
these goals, the Department is proposing to establish a framework
and criteria for consideration and approval of such requests. Any
approach developed by a State agency or a school food authority
would need to ensure that the following areas, which are critical to
the proper and efficient operation of the program, be satisfied:
1. Identification of Reimbursable Meals: The definition of a
reimbursable meal is essential to program integrity. The four menu
planning systems specifically recognized by the statute have
specific requirements for a reimbursable lunch or breakfast. In
keeping with these principles, the school food authority would need
to outline, in any proposed menu planning alternative, what
constitutes a reimbursable meal; how these will be identified by the
students in the line and by food service staff at the point of
service; and how reviewers will be able to document compliance.
Likewise, the State agency must determine that the reimbursable meal
will offer sufficient nutrition on a daily basis to justify Federal
reimbursement.
2. Provide for Offer versus Serve: When developing a menu
planning alternative, school food authorities must provide for offer
versus serve (OVS), as appropriate. Section 9(a)(4) of the NSLA
requires that schools implement OVS in the NSLP for senior high
students; at local option, school food authorities may adopt OVS in
the lunch program for lower grades as well. Local school food
authorities may also implement OVS for the SBP. The purpose of OVS
is to encourage students to make selections that they prefer, thus
helping to reduce plate waste. Therefore, because of the statutory
mandate, any menu planning approach proposed by an school food
authority or State agency must include OVS for senior high students
at a minimum.
3. Compliance with Nutrition Standards: By law, school lunches
are required to provide, over a week's time, one-third of the RDA
for key nutrients and one-third of the calories needed by growing
children of different ages. In addition, the meals must comply with
the recommendations of the Dietary Guidelines. School breakfasts
must provide one-fourth of the RDA and calorie needs and also must
comply with the Dietary Guidelines. Under no circumstances can these
requirements be modified. Therefore, any request to employ an
alternate menu planning approach would need to demonstrate, to the
satisfaction of the State agency, that the menus would continue to
meet or exceed these standards. Furthermore, because the RDA can
vary by age and/or grade group, the school food authority would need
to specify which age/grade groups will be served and indicate what
the appropriate RDA and calorie levels are for each age/grade group.
4. Ability to Monitor: Any alternate approach must be capable of
being monitored by the State agency to determine that reimbursable
meals are being offered, accepted, and properly counted and that the
meal service is in compliance with all of the nutrition standards.
While the Department wishes to provide school food authorities
with maximum flexibility to develop alternate menu planning
approaches, this proposed rule would prohibit State agencies from
approving modifications to the existing four menu planning options
beyond those discussed above as automatic options. The Department
considers that certain requirements governing these options must
remain intact except for limited exceptions for special State-wide
systems. Consequently, the following operational components of the
established menu planning systems may not be modified except as
discussed below:
1. Weighted Averages for NSMP/ANSMP: The regulations require
schools employing NSMP or ANSMP to conduct their analyses by
weighting all foods planned as part of the reimbursable meal service
according to the amount of each food actually intended to be
produced, based on production records or experience. However, in
order to make the transition to updated menu planning methods as
smooth as possible and to ensure that every avenue for promoting
sound nutrition while minimizing burden is explored, the Department
authorized a delay in implementing this regulatory requirement for
all schools adopting NSMP until the Department has the opportunity
to evaluate the ability of weighted and unweighted averages to
provide accurate determinations of compliance with the nutrition
standards.
2. Use of Approved Software for NSMP and ANSMP: The regulations
also require menu planners electing to use NSMP or ANSMP to conduct
or to have their analyses conducted using software approved by the
Department. The Department is aware that there are many nutrition
software packages available; however, many of these are for
individuals or for clinical settings such as hospitals. The software
approved by USDA is designed to meet the needs of school food
service professionals and fulfills essential school-based needs.
3. Crediting Requirements for Food-Based Alternatives: This
proposed rule would prohibit State agencies from disregarding any of
the Department's crediting policies for schools electing to use a
food-based menu planning system. The Department's standards for
crediting food items are designed to maintain the nutritional
integrity of school meals by ensuring that foods used to satisfy
quantity and component requirements provide a sufficient amount of
the component or its equivalent to count toward meeting the meal
requirements, standards of identity and/or specifications.
4. Foods of Minimal Nutritional Value: The Department also
wishes to emphasize that States may not, under any circumstances,
approve the sale of foods of minimal nutritional value as defined in
program regulations.
However, the Department is also proposing that, in certain
limited situations, menu planning systems, supported by the
knowledge and resources of a State agency, can operate with
modifications beyond those available to school food authorities
while maintaining the necessary control over the nutritional content
of their meals. Therefore, this proposal would authorize
modification in some menu planning systems of the provisions on
weighted nutrient analysis and approved software, provided that:
these systems are operated under policies and procedures developed
or adopted by a State agency; the State agency remains an active
participant in the operation and evaluation of the project on an
ongoing basis; and the system is used by multiple school food
authorities (at least five) within the State and the State agency
issues a public announcement concerning the alternative menu
planning approach.
Effects of Implementing ``Any Reasonable Means''
Benefits: The provision permitting the use of ``any reasonable
approach'' to menu planning will provide school food authorities with
even greater flexibility in developing a menu service which meets the
needs and preferences of local children. The rule contains a provision
allowing school food authorities to make minor modifications to
existing meal planning systems. The rule also contains provisions which
allow school food authorities or States to make extensive modifications
to existing menu planning systems or to develop innovative systems that
are not currently established in program regulations and guidance.
The rule proposes that certain minor modifications by a school
food authority to one or another of the existing meal systems would
be allowed, at the discretion of the State agency, without prior
approval. An example of the additional flexibility to be gained by
individual schools is the ability to vary the amount of meat/meat
alternate served on daily basis. This provision provides schools
with an option that allows them to produce a more appealing entree
or to reduce the amount of plate waste while still meeting the
minimum weekly serving requirement of a meat/meat alternate.
A school food authority desiring to make more than minor
modifications would be permitted to develop a proposal which differs
significantly from the existing meal planning systems. The authority
to develop their own menu planning systems will allow school food
authorities to take into consideration any unique local food
preferences or dietary needs when planning such systems.
The provisions of this rule allow State agencies to develop
their own menu planning alternatives and make them available to
local school food authorities. State agencies will have the
opportunity to develop, in consultation with school food authorities
within their State, a menu planning system designed to meet the
specific needs of the children of their State rather than one
designed for the tastes and needs of the national student
population.
The rule allows such a menu planning system to use alternate
weighting procedures and software while continuing to operate within
normal regulatory authority, provided that the system is used by at
least five school food authorities within the State, the State
agency remains an active participant in the
[[Page 27175]]
operation and evaluation of the system on an ongoing basis and
notifies the public about their alternative menu planning approach.
This provision would provide State agencies with increased
flexibility in the selection of software used to conduct the
nutrient analyses.
Costs: While it is entirely possible that local menu planners
may devise systems which produce nutritious meals which are
appealing to children, these innovative systems are, by their very
nature, untested and subject to unforeseen consequences. Any unique
meal planning system will be required to serve meals which provide
the same level of key nutrients as any of the prescribed meal
patterns. It is possible that a locally developed system might have
difficulty complying with the recommendations. In these instances,
school food authorities and States might find it necessary to
provide additional training and technical assistance to those
schools failing to meet the nutrition requirements. However, it is
also reasonable to expect that innovation may result in lower costs
methods being devised. In either case, the nutrient standards remain
the same; and the anticipated impacts on agriculture and the
children's health are verifiable.
As noted previously, the percentage of total calories from fat
consumed by school aged children in the late 1980's and early 1990's
was above what was recommended by the Dietary Guidelines for
Americans. Because States will conduct reviews once every five
years, several years may pass before problems in meeting the
nutritional guidelines will be detected. If schools fail to meet the
nutrient standards using innovative systems, it is possible that the
nutritional quality of some school meals may be deficient for a
period of up to five years. However, FNS has anecdotal evidence that
school food authorities have made improvements in their ability to
meet the Dietary Guidelines.
As with the traditional meal pattern, the State agency will
still be responsible for monitoring the progress these locally
developed systems make toward complying with the Dietary Guidelines
and nutrition standards. Should any such system or systems fail to
comply with these standards, the State agency would need to work
with the school food authorities to devise corrective action that
would ensure that the menu planning systems would make progress
towards, and eventually comply with, the Dietary Guidelines. If
locally developed systems prove to have difficulty meeting the
required nutritional requirements, the State agency would be faced
with an increased monitoring burden without a concomitant reduction
in any other monitoring burdens.
At this time it is impossible to determine the additional burden
that will be required of State agencies as a result of school food
authorities developing their own menu planning systems and failing
to meet the nutrition standards. As stated earlier, the 1996-1997
school year is the first one in which States have been required to
conduct the nutrient analyses so no data is available as to the
number of schools failing to meet the standards. Additionally, FNS
has no indications as to how many local agencies might choose to
develop their own menu planning systems. It is also impossible to
determine the additional nutritional risk placed on children in
schools that have difficulty meeting the Dietary Guidelines.
However, because there is a certain amount of uncertainty regarding
the ability of schools to meet the nutritional requirements under
innovative systems, FNS acknowledges that nutritional risk exists.
Miscellaneous Monitoring Provisions
Background: The Department is also proposing a number of
amendments to the requirements for nutrition monitoring designed to
ensure appropriate State agency oversight of all menu planning
alternatives and to clarify some existing provisions.
First, the nutrition monitoring provisions pertaining to reviews
of the enhanced food-based menu planning option would be extended to
reviews of schools using the traditional meal pattern and other
reasonable approaches. As part of these reviews, the State agency
must conduct a nutrient analysis using the regulatory procedures
schools follow for NSMP.
Second, the Department is proposing to redefine the review
period for nutrition reviews which is currently the last completed
week prior to the review in order to expedite concurrent reviews of
the nutrition standards and reviews for compliance with serving
reimbursable meals and free/reduced price application requirements
as conducted under coordinated review effort (CRE) reviews. The
proposal would permit reviewers to conduct the nutrition review for
any week prior to the month of review as is allowed in other
reviews.
A third proposed provision would clarify that State agencies
must conduct at least one review of every menu planning option
employed by the school food authority. The proposal also clarifies
that State agencies would be required to review only the lunch
program unless the school food authority uses a particular menu
planning option for breakfast but not for lunch, in which case at
least one school's breakfast program would need to be reviewed.
A fourth proposed change would require State agencies to ensure
that there are appropriate methods for monitoring compliance with
the nutrition standards in schools using approved reasonable
approaches. At a minimum, nutrition monitoring in these schools
would be required to include a nutrient analysis by the State agency
using software approved for NSMP.
Finally, the Department is proposing a minor technical amendment
to make the cycle for nutrition reviews consistent with the cycle
for administrative reviews under CRE. The cycle for conducting
nutrition standard reviews was intended to run concurrently with the
CRE cycle so that those States electing to conduct nutrition reviews
at the same time as administrative reviews could do so efficiently.
While State agencies are not required to conduct nutrition reviews
at the same time as administrative reviews, the Department intended
to make the two review cycles coincide so that State agencies could
avail themselves of this option efficiently. To achieve this goal,
therefore, the Department is proposing to establish an initial cycle
for nutrition reviews as seven years, from July 1, 1996 through June
30, 2003. Thereafter, review cycles would be five years in length.
This expanded cycle would allow State agencies more flexibility
during the implementation phase to complete reviews and provide
schools with necessary assistance.
Effects of Miscellaneous Monitoring Provisions
Benefits: The rule contains minor provisions which provide State
agencies with greater flexibility in scheduling of nutrition
reviews. The rule allows States to conduct the nutrient analysis
based on one week in the month prior to the month of review. Current
regulations require that the week chosen for analysis be the last
completed week prior to review. Allowing the State agency to choose
a week in any month prior to the month of review allows the States
to coordinate their nutrition review with the CRE administrative
reviews.
The rule proposes to alter the nutrition review cycles so that
States wishing to conduct their nutrition reviews at the same time
as their CRE administrative reviews will be able to do so. The June
13, 1995 final rule established a five-year cycle for reviews of
nutrition compliance. The regulation stipulated that the first five-
year cycle could begin as early as July 1, 1996 or as late as July
1, 1998. As a result, the first cycle could end as soon as June 30,
2001, or as late as June 30, 2003, depending upon implementation.
The current CRE cycle ends on June 30, 1998 and the following cycle
will end June 30, 2003. So that the two cycles might coincide, the
rule proposes to establish an initial cycle for nutrition reviews of
seven years, from July 1, 1996 to June 30, 2003. The expanded cycle
would allow State agencies more flexibility during the
implementation phase to complete reviews and provide schools with
necessary assistance.
Costs: When the June 13, 1995 final rule established reviews of
nutrition compliance, the Department did not anticipate that the
traditional meal pattern would continue to be an option after June
30, 1998, so no provision was made requiring a nutrient analysis for
schools using this meal pattern. The proposed rule extends nutrition
monitoring provisions pertaining to reviews of the enhanced food-
based menu planning option to reviews of schools using the
traditional meal pattern. The requirement that a nutritional
analysis be conducted on schools using the traditional meal plan
does not place any additional burden on State agencies.
The rule requires that State agencies must conduct at least one
review of every menu planning option employed by the school food
authority. This requirement could result in more schools being
reviewed for nutrition compliance than would be required to be
reviewed under CRE. For each school it takes one staff person
approximately one and a half days to complete a CRE review. This
would come at the approximate cost of $216 for
[[Page 27176]]
each additional school.\2\. The Department believes this coverage is
necessary to ensure that the school food authority is employing all
menu planning systems correctly. The only way for the State agency
to identify problems and provide technical assistance is to examine
the school food authorities experience with all systems. It is
impossible to determine how many more schools State agencies will
have to review for nutrition compliance than would be required for
CRE as the Department has no data on how many school food
authorities use multiple menu planning systems.
---------------------------------------------------------------------------
\2\ Cost calculated assuming 12 hours to review each school at a
wage rate of $18 an hour.
---------------------------------------------------------------------------
Other Effects of the Proposed Regulation
Effects of Rule on NSLP Participation
The provisions of this rule may have a small effect on
participation in the National School Lunch Program. The provisions of
this rule may have the effect of making meals more appealing which may
increase participation. Implementation of the rule is not expected to
increase meal prices or decrease meal acceptability. The rule allows
schools to continue to use the current meal pattern. Additionally,
school food authorities and States are now able to develop menu plans
that they feel would be even more appealing to their student population
than the menu plans prescribed by the Department.
Effects of Rule on Program Costs
The provisions in this proposed rule will provide increased
flexibility to State or local program operators but have no budgetary
impact.
Effects on Small Entities
This proposal will not have significant economic impact on a
substantial number of small entities. This proposal does not add any
new requirements and there are no required additional costs. School
food authorities and schools may experience some positive effects from
this proposed rule as noted previously.
Summary of the Effects of the Proposed Rule
The proposed rule provides school food authorities and State
agencies with increased choices and flexibility in selecting a menu
planning system by permanently reinstating the meal pattern in effect
during the 1994-1995 school year and providing guidelines for approval
of other reasonable approach alternatives that schools may develop.
The proposed rule contains minor monitoring provisions. It extends
monitoring provisions pertaining to reviews of the enhanced food-based
menu planning option to reviews of schools using the traditional meal
pattern. It provides State agencies with greater flexibility in
selection of the week to be reviewed for nutrient compliance. Further,
the proposed rule alters the nutrition review cycle so that it
coincides with the CRE administrative review cycle. This will allow
State agencies to more easily conduct nutrient reviews at the same time
as administrative reviews.
The proposed rule is not expected to have any impact on program
participation, nor is the rule expected to have any budgetary impact.
The rule will not have a significant economic impact on a substantial
number of small entities.
5. Public Comments: This proposal will provide a 180-day comment
period.
List of Subjects
7 CFR Part 210
Commodity School Program, Food assistance programs, Grant
programs--education, Grant programs--health, Infants and children,
Nutrition, Reporting and recordkeeping requirements, School breakfast
and lunch programs, Surplus agricultural commodities.
7 CFR Part 220
Food assistance programs, Grant programs--education, Grant
programs--health, Infants and children, Nutrition, Reporting and
recordkeeping requirements, School breakfast and lunch programs.
Accordingly, 7 CFR Parts 210 and 220 are proposed to be amended as
follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
1. The authority citation for 7 CFR Part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
Sec. 210.2 [Amended]
2. In Sec. 210.2:
a. the definition of ``Food component'' is amended by removing the
words ``or one of the four food groups which compose the reimbursable
school lunch, i.e., meat or meat alternate, milk, bread or bread
alternate, and vegetable/fruit under Sec. 210.10a'';
b. the definition of ``Food item'' is amended by removing the words
``or one of the five required foods that compose the reimbursable
school lunch, i.e., meat or meat alternate, milk, bread or bread
alternate, and two (2) servings of vegetables, fruits, or a combination
of both for the purposes of Sec. 210.10a''; and
c. the definition of ``Lunch'' is amended by removing the words
``Sec. 210.10(k)(2) or the school lunch pattern for specified age/grade
groups of children as designated in Sec. 210.10a'' and adding in their
place the words ``Sec. 210.10(k)(1) or Sec. 210.10(k)(2), whichever is
applicable''.
Sec. 210.4 [Amended]
3. In Sec. 210.4, paragraph (b)(3) introductory text is amended by
removing the words ``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever
is applicable'' and adding in their place a reference to ``Sec. 210.10
(o)(1)''.
Sec. 210.7 [Amended]
4. In Sec. 210.7:
a. paragraph (c)(1)(v) is amended by removing the words ``or
Sec. 210.10a(b), whichever is applicable,''; and
b. paragraph (d) is amended by removing the words
``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is applicable''
and adding in their place a reference to ``Sec. 210.10(o)(1)''.
Sec. 210.9 [Amended]
5. In Sec. 210.9:
a. paragraph (b)(5) is amended by removing the words ``or 210.10a,
whichever is applicable'';
b. paragraph (c) introductory text is amended by removing the words
``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is applicable''
and adding in their place a reference to ``Sec. 210.10(o)(1)''; and
c. paragraph (c)(1) is amended by removing the words ``or
Sec. 210.10a, whichever is applicable''.
6. In Sec. 210.10:
a. paragraph (a)(1) is amended by revising the first sentence and
by adding a new sentence at the end of the paragraph;
b. the second sentence of paragraph (a)(3) is amended by removing
the word ``or'' and adding in its place a comma and by adding the words
``or those developed under paragraph (l)'' after the reference to
``paragraph (i)(1)''; the third sentence of paragraph (a)(3) is amended
by removing the third occurrence of the word ``or'' and adding in its
place a comma, and adding the words ``or those developed under
paragraph (l)'' after the reference to ``paragraph (i)(1)'';
c. paragraph (b)(1) is amended by making the word ``paragraph''
plural, by removing the second occurrence of the word ``or'' and adding
in its place a comma and by adding the words ``or (l)'' after the
reference to ``(i)(1)'';
d. paragraph (b)(2) is amended by removing the second occurrence of
the word ``or'' and adding in its place a comma, and by adding the
words ``or (l)'' after the reference to ``(i)(1)'';
[[Page 27177]]
e. paragraph (b)(3) is revised;
f. paragraph (b)(4) introductory text is amended by removing the
reference to ``1990'' and adding in its place a reference to ``1995'';
g. the first sentence of paragraph (b)(5) is revised;
h. the table in paragraph (c)(1) is revised;
i. the table in paragraph (c)(2) is revised;
j. paragraph (d) is revised;
k. the heading of paragraph (i)(4) and paragraph (i)(9) are
amended by removing the words ``National Nutrient Database'' and adding
in their place the words ``Child Nutrition Database'';
l. paragraphs (i)(4) and (i)(8) are amended by removing the words
``National Nutrient Database for the Child Nutrition Programs''
wherever they appear and by adding the words ``Child Nutrition
Database'' in their place;
m. the heading of paragraph (k) is revised and introductory text is
added;
n. paragraph (k)(1) is revised;
o. the heading of paragraph (k)(2) and the introductory text before
the chart are revised;
p. the first two sentences of paragraph (k)(4) are redesignated as
paragraph (k)(4)(i) and the last sentence of paragraph (k)(4) is
redesignated as paragraph (k)(4)(ii) and is revised;
q. paragraph (k)(5) is amended by adding a new paragraph
(k)(5)(iii);
r. paragraph (k)(5)(ii) is amended by adding two new sentences
between the second and third sentences;
s. paragraphs (l) through (o) are redesignated as paragraphs (m)
through (p), respectively, and a new paragraph (l) is added;
t. newly redesignated paragraph (o)(3)(iv) is amended by removing
the reference to ``(n)(3)'' and adding in its place a reference to
``(o)(3)''; and
u. in newly redesignated paragraph (p), the reference to ``1990''
is removed and a reference to ``1995'' is added in its place.
The additions and revisions read as follows:
Sec. 210.10 Nutrition standards for lunches and menu planning methods.
(a) General requirements for school lunches. (1) In order to
qualify for reimbursement, all lunches served to children age 2 and
older, as offered by participating schools, shall, at a minimum, meet
the nutrition standards provided in paragraph (b) of this section and
the appropriate levels of calories and nutrients provided in: paragraph
(c) or paragraph (i)(1) of this section for nutrient standard menu
planning and assisted nutrient standard menu planning; paragraph (d)(1)
of this section for the traditional food-based menu planning
alternative; paragraph (d)(2) of this section for the enhanced food-
based menu planning alternative; or as developed in accordance with the
provisions in paragraph (l) of this section for other menu planning
alternatives, whichever is applicable. * * * In addition, those school
food authorities that use menu planning approaches as allowed under
paragraph (l) of this section shall ensure that sufficient quantities
of food are planned and produced to meet the provisions in paragraph
(b) of this section and any minimum standards for food/menu items and
quantities.
* * * * *
(b) Nutrition standards for reimbursable lunches. * * *
(3) The applicable recommendations of the 1995 Dietary Guidelines
for
Americans which are:
(i) Eat a variety of foods;
(ii) Limit total fat to 30 percent of calories;
(iii) Limit saturated fat to less than 10 percent of calories;
(iv) Choose a diet low in cholesterol;
(v) Choose a diet with plenty of grain products, vegetables, and
fruits;
(vi) Choose a diet moderate in salt and sodium; and
(vii) Choose a diet moderate in sugars.
* * * * *
(5) School food authorities have several alternatives for menu
planning in order to meet the nutrition standards of this paragraph and
the applicable nutrient and calorie levels: nutrient standard menu
planning as provided for in paragraph (i) of this section; assisted
nutrient standard menu planning as provided for in paragraph (j) of
this section; traditional food-based menu planning as provided for in
paragraph (d)(1) of this section; enhanced food-based menu planning as
provided for in paragraph (d)(2) of this section; or other menu
planning approaches as provided for in paragraph (l) of this section. *
* *
(c) Nutrient levels for school lunches/nutrient analysis.
[[Page 27178]]
(1) * * *
[GRAPHIC] [TIFF OMITTED] TP15MY98.001
(2) * * *
[GRAPHIC] [TIFF OMITTED] TP15MY98.002
(d) Minimum nutrient levels for school lunches/food-based menu
planning alternatives.
(1) Traditional food-based menu planning alternative. For the
purposes of the traditional food-based menu planning alternative, as
provided for in paragraph (k)(1) of this section, the following chart
provides the minimum levels, by grade group, for calorie and nutrient
levels for school lunches offered over a school week:
[[Page 27179]]
[GRAPHIC] [TIFF OMITTED] TP15MY98.003
(2) Enhanced food-based menu planning alternative. For the purposes
of the enhanced food-based menu planning alternative, as provided for
in paragraph (k)(2) of this section, the following chart provides the
miniumn levels, by grade group, for calorie and nutrient levels for
school lunches over a school week:
[GRAPHIC] [TIFF OMITTED] TP15MY98.004
[[Page 27180]]
* * * * *
(k) Food-based menu planning alternatives. School food authorities
may choose to plan menus using either the traditional or enhanced food-
based menu planning alternatives. Under these alternatives, specific
food components shall be offered as provided in either paragraphs
(k)(1) or (k)(2) of this section, whichever is applicable, and in
paragraphs (k)(3) through (k)(5) of this section, as appropriate.
(1) Minimum quantities-traditional food-based menu planning
alternative. (i) At a minimum, school food authorities choosing to plan
menus using the traditional food-based menu planning alternative shall
offer all five required food items in the quantities provided in the
following chart:
[GRAPHIC] [TIFF OMITTED] TP15MY98.005
(ii) Schools able to provide the appropriate quantities of food to
children of each age/grade group should do so. Schools that cannot
serve children of each age or grade level shall provide all school age
children Group IV portions as specified in the table presented in this
paragraph. Schools serving lunches to children of more than one age or
grade level shall plan and produce sufficient quantities of food to
provide Groups I-IV no less than the amounts specified for those
children in the table presented in this paragraph, and sufficient
quantities of food to provide Group V no less than the specified
amounts for Group IV. It is recommended that such schools plan and
produce sufficient quantities of food to provide Group V children the
larger amounts specified in the table. Schools that provide increased
portion sizes for Group V may comply with children's requests for
smaller portion sizes of the food items; however, schools shall plan
and produce sufficient quantities of food to at least provide the
serving sizes required for Group IV.
(2) Minimum quantities-enhanced food-based menu planning
alternative. At a minimum, school food authorities choosing to plan
menus using the enhanced food-based menu planning alternative shall
offer all five required
[[Page 27181]]
food items in the quantities provided in the following chart:
* * * * *
(4) Vegetables and fruits. * * *
(ii) Under the enhanced food-based menu planning alternative, the
requirement for this component is based on minimum daily servings plus
an additional one-half cup in any combination over a five day period
for children in kindergarten through grade six.
(5) Grains/breads. * * *
(ii) * * * Schools serving lunch 6 or 7 days per week should
increase the weekly quantity by approximately 20 percent (1/5) for each
additional day. When schools operate less than 5 days per week, they
may decrease the weekly quantity by approximately 20 percent (1/5) for
each day less than five.* * *
(iii) Under the traditional food-based menu planning alternative,
schools shall serve daily at least one-half serving of bread or bread
alternate to children in Group I and at least one serving to children
in Groups II-V. Schools which serve lunch at least 5 days a week shall
serve a total of at least five servings of bread or bread alternate to
children in Group I and eight servings per week to children in Groups
II-V.
* * * * *
(l) Other menu planning alternatives.
(1) Modifications. School food authorities may adopt any or all of
the following menu planning alternatives. State agencies may require
prior approval for adopting the alternatives, may establish guidelines
for their adoption, or may permit their adoption without prior
approval.
(i) Under the traditional or enhanced food-based menu planning
alternatives provided for in paragraph (k) of this section, the meat/
meat alternate component may be provided as a weekly total with a one
ounce (or its equivalent for certain meat alternates) minimum daily
amount, except that this provision does not apply if the minimum
serving of meat/meat alternate is less than one ounce; or
(ii) Under the traditional or enhanced food-based menu planning
alternatives, if only one age or grade is outside the established
levels, schools may use the levels for the majority of children for
both portions and the Recommended Dietary Allowances and lunchtime
energy allowances.
(2) Major changes or new alternatives: use and approval. Subject to
the applicable requirements of paragraph (l)(3) of this section, school
food authorities or State agencies may modify one of the menu planning
alternatives established in paragraphs (i) through (k) of this section
or may develop their own menu planning approach. Any such alternate
menu planning approaches shall be in writing for review and monitoring
purposes, as applicable. No formal plan is required; the written
alternate approach may be in the form of guidance, protocol, or the
like. The alternate approach shall address how the provisions in
paragraph (l)(3) shall be met.
(i) Any school food authority-developed menu planning approach must
have prior State agency review and approval.
(ii) Except as noted in paragraph (l)(2)(iii), any State agency-
developed menu planning approach must have prior FNS approval.
(iii) Any State agency-developed menu planning approach is not
subject to FNS review if:
(A) Five or more school food authorities within the State use the
approach;
(B) The State agency maintains on-going oversight of the operation
and evaluation of the alternative menu planning approach including
making adjustments to the approach's policies and procedures, as
necessary, to ensure compliance with the applicable provisions in
paragraph (l)(3) of this section as needed; and
(C) The State agency issues an announcement notifying the public
concerning the alternate menu planning approach prior to the
implementation of the approach by any school food authority; such
announcement shall be issued in a manner consistent with State
procedures for public notification.
(3) Major changes or new alternatives: required elements. The
following requirements shall be met by any alternate menu planning
approach:
(i) The service of fluid milk, as provided in paragraph (m) of this
section;
(ii) Offer versus serve for senior high students. To the extent
possible, the offer versus serve procedures for an alternate approach
shall follow the procedures in paragraphs (i)(2)(ii) and (k)(6) of this
section, as appropriate. Any alternate approach which deviates from the
provisions in paragraphs (i)(2)(ii) or (k)(6) of this section shall, at
a minimum, indicate what age/grade groups are included in offer versus
serve and establish the number and type of items, (and, if applicable,
the quantities for the items) that constitute a reimbursable meal under
offer versus serve. In addition, the alternate offer versus serve
procedures shall include an explanation of how such procedures will
reduce plate waste and provide a reasonable level of calories and
nutrients for the meal as taken;
(iii) The nutrition standards in paragraphs (b)(1) through (b)(4)
of this section. Any alternate approach shall indicate the age/grade
groups to be served and how such approach is designed to meet these
requirements for those age/grade groups;
(iv) The requirements for competitive foods in Sec. 210.11 and
Appendix B to this part.
(v) For alternate food-based menu planning approaches, the
requirements for crediting food items and products provided for in
paragraphs (k)(3) through (k)(5) and paragraph (m) of this section, in
the appendices to this part, and in instructions and guidance issued by
FNS;
(vi) Identification of a reimbursable meal at the point of service.
To the extent possible, the procedures provided in paragraph (i)(2)(i)
of this section for nutrient standard or assisted nutrient standard
menu planning alternatives or for food-based menu planning alternatives
provided in paragraph (k) of this section shall be followed. In
addition, any instructions or guidance issued by FNS that further
defines the elements of a reimbursable meal shall be followed when
using the existing regulatory provisions. Any alternate approach that
deviates from the provisions in paragraph (i)(2)(i) or paragraph (k) of
this section shall indicate what constitutes a reimbursable meal,
including the number and type of items (and, if applicable, the
quantities for the items) which comprise the meal, and how a
reimbursable meal is to be identified at the point of service.
(vii) An explanation of how the alternate approach can be monitored
under the applicable provisions of Sec. 210.18 and Sec. 210.19,
including a description of the records that will be maintained to
document compliance with the program's administrative and nutrition
requirements. However, to the extent that the procedures under
Sec. 210.19 are inappropriate for monitoring the alternate approach,
the alternate approach shall include a description of review procedures
which will enable the State agency to assess compliance with the
nutrition standards in paragraphs (b)(1) through (b)(4) of this
section; and
(viii) the requirements for weighted analysis and for approved
software for nutrient standard menu planning as required by paragraphs
(i)(4) and (i)(5) of this section unless a State agency-developed
approach meets the criteria in paragraph (l)(2)(iii) of this section.
* * * * *
[[Page 27182]]
Sec. 210.10a [Removed]
7. Section 210.10a is removed.
Sec. 210.15 [Amended]
8. In Sec. 210.15:
a. paragraph (b)(2) is amended by removing the words ``menu records
as required under Sec. 210.10a and production and''; and
b. paragraph (b)(3) is amended by removing the words ``or
Sec. 210.10a(b), whichever is applicable''.
Sec. 210.16 [Amended]
9. In Sec. 210.16, paragraph (b)(1) is amended by removing the
words ``or Sec. 210.10a, whichever is applicable,'' wherever they
appear.
Sec. 210.18 [Amended]
10. In Sec. 210.18:
a. paragraph (b)(2)(ii) is revised;
b. the heading of paragraph (g)(2) introductory text is amended by
removing the words ``food items/components as required by Program
regulations'' and adding in their place the words ``meal elements (food
items/components, menu items or other items, as applicable) as required
under Sec. 210.10'';
c. Paragraph (g)(2)(i) is amended by removing the words ``required
food items/components'' and adding in their place the words ``meal
elements (food items/components, menu items or other items, as
applicable) as required under Sec. 210.10'';
d. Paragraph (g)(2)(ii) is amended by removing the words ``the
required number of food items/components'' and adding in their place
the words ``the number of meal elements (food items/components, menu
items or other items, as applicable) as required under Sec. 210.10'';
e. Paragraph (g)(2)(iii) is amended by removing the words
``required food items/components'' and adding in their place the words
``meal elements (food items/components, menu items or other items, as
applicable) as required under Sec. 210.10'';
f. paragraph (h)(2) is amended by removing the words ``food items/
components in the quantities required under Sec. 210.10 or
Sec. 210.10a, in whichever is applicable'' and adding in their place
the words ``meal elements (food items/components, menu items or other
items, as applicable) as required under Sec. 210.10''; and
g. paragraph (i)(3)(ii) is amended by removing the words ``required
food items/components'' and adding in their place the words ``meal
elements (food items/components, menu items or other items, as
applicable) as required under Sec. 210.10''.
The revision reads as follows:
Sec. 210.18. Administrative reviews.
* * * * *
(b) Definitions. * * *
(2) * * *
(ii) Performance Standard 2--Meal Elements. Lunches claimed for
reimbursement within the school food authority contain meal elements
(food items/components, menu items or other items, as applicable) as
required under Sec. 210.10.
* * * * *
11. In Sec. 210.19:
a. the first sentence of paragraph (a)(1) introductory text is
amended by removing the reference to ``Sec. 210.10(o)'' and by adding
in its place a reference to ``Sec. 210.10(p)'', and by removing the
words ``or (d),'' and adding in their place the words ``, (d), or
(i)(1) or the procedures developed under Sec. 210.10(l),'';
b. the second sentence of paragraph (a)(1) introductory text is
amended by removing the words ``At a minimum, these evaluations shall
be conducted once every 5 years and'' and adding in their place the
words ``These evaluations'';
c. paragraph (a)(1) introductory text is further amended by adding
five sentences at the end;
d. paragraphs (a)(1)(i), (a)(1)(ii), (a)(1)(iii), and (a)(1)(iv)
are redesignated as paragraphs (a)(1)(ii), (a)(1)(iii), (a)(1)(v), and
(a)(1)(vi), respectively, and new paragraphs (a)(1)(i) and (a)(1)(iv)
are added;
e. the first sentence of newly redesignated paragraph (a)(1)(ii) is
revised;
f. newly redesignated paragraph (a)(1)(iii) introductory text is
revised;
g. paragraph (a)(3) is amended by removing the words ``or
Sec. 210.10a, whichever is applicable,''; and
h. paragraph (c)(6)(i) is amended by removing the words ``food item
required under the meal pattern in Sec. 210.10a or the food-based menu
planning alternative in Sec. 210.10(k), whichever is applicable'' and
adding in their place the words ``meal element (food item/component,
menu item or other items, as applicable) as required under
Sec. 210.10''.
The additions and revisions read as follows:
Sec. 210.19 Additional responsibilities.
(a) General Program management. * * *
(1) Compliance with nutrition standards.* * * At a minimum, the
State agency shall review at least one school for each type of menu
planning alternative used in the school food authority. Review activity
may be confined to the National School Lunch Program unless a menu
planning alternative is used exclusively in the School Breakfast
Program. The review must examine compliance with the nutrition
standards in Sec. 210.10(b) and Sec. 210.10(c), (d), (i)(1), or (l),
and Sec. 220.8 (a), (c), (e)(1), or (h), as appropriate. State agencies
are encouraged to review the School Breakfast Program as well if the
school food authority requires technical assistance from the State
agency to meet the nutrition standards or if corrective action is
needed. Such review shall determine compliance with the appropriate
requirements in Sec. 220.8 and may be done at the time of the initial
review or as part of a follow-up to assess compliance with the
nutrition standards.
(i) At a minimum, State agencies shall conduct evaluations of
compliance with the nutrition standards in Sec. 210.10(b) and
Sec. 210.10(c), (d), (i)(1), or (l), as appropriate, at least once
during each 5-year review cycle provided that each school food
authority is evaluated at least once every 6 years, except that the
first cycle shall begin July 1, 1996, and shall end on June 30, 2003.
The compliance evaluation for the nutrition standards shall be
conducted on the menu for any week of the current school year prior to
the month in which such evaluation is conducted. The week selected must
continue to represent the current menu planning system.
(ii) For school food authorities choosing the nutrient standard or
assisted nutrient standard menu planning alternatives provided in
Sec. 210.10(i), Sec. 210.10(j), or Sec. 220.8(e), or Sec. 220.8(f), or
developed under the procedures in Sec. 210.10(l) or Sec. 220.8(h), the
State agency shall assess the nutrient analysis to determine if the
school food authority is properly applying the methodology in
Sec. 220.8(e), or Sec. 220.8(f), or developed under the procedures in
Sec. 210.10(l) or Sec. 220.8(h), as appropriate.* * *
(iii) For school food authorities choosing the food-based menu
planning alternatives provided in Sec. 210.10(k) or Sec. 220.8(g) or
developed under the procedures in Sec. 210.10(l) or Sec. 220.8(h), the
State agency shall determine if the nutrition standards set forth in
Sec. 210.10(b) and Sec. 210.10(d) are met. The State agency shall
conduct a nutrient analysis in accordance with the procedures in
Sec. 210.10(i) or Sec. 220.8(e), as appropriate, except that the State
agency may:
* * * * *
(iv) For school food authorities following an alternate approach as
[[Page 27183]]
provided under Sec. 210.10(l) or Sec. 220.8(h) that does not allow for
use of the monitoring procedures in paragraphs (a)(1)(ii) or
(a)(1)(iii), the State agency shall monitor compliance following the
procedures developed in accordance with Sec. 210.10(l) or
Sec. 220.8(h), whichever is appropriate.
* * * * *
Appendix A [Amended]
12. In Appendix A to Part 210--Alternate Foods for Meals:
a. under Enriched Macaroni Products with Fortified Protein,
paragraph 1.(a) is amended by removing the words ``or Sec. 210.10a,
whichever is applicable,'';
b. under Vegetable Protein Products, paragraph 1. introductory text
is amended by removing the words ``or Sec. 210.10a, whichever is
applicable'';
c. under Vegetable Protein Products, paragraph 1.(d) is amended by
removing the words ``or Sec. 210.10a, whichever is applicable'';
d. under Vegetable Protein Products, paragraph 1.(e) is amended by
removing the words ``or Sec. 210.10a, whichever is applicable'';
e. under Vegetable Protein Products, paragraph 3. is amended by
removing the words ``or Sec. 210.10a, whichever is applicable''.
Appendix C [Amended]
13. In Appendix C to Part 210-Child Nutrition Labeling Program:
a. paragraph 2.(a) is amended by removing the words ``or
Sec. 210.10a, whichever is applicable'';
b. paragraph 3.(c)(2) is amended by removing the words ``or
Sec. 210.10a, whichever is applicable'' and by removing the words ``or
Sec. 220.8a, whichever is applicable'';
c. paragraph 6. introductory text is amended by removing the words
``or Sec. 210.10a, whichever is applicable'' and by removing the words
``or Sec. 220.8a, whichever is applicable''.
PART 220--SCHOOL BREAKFAST PROGRAM
1. The authority citation continues to read as follows:
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
Sec. 220.2 [Amended]
2. In Sec. 220.2:
a. paragraph (b) is amended by removing the words ``or Sec. 220.8a,
whichever is applicable,''; and
b. paragraph (t) is amended by removing the words ``or Sec. 220.8,
whichever is applicable,''.
Sec. 220.7 [Amended]
3. In Sec. 220.7, paragraph (e)(2) is amended by removing the words
``or Sec. 220.8a, whichever is applicable,''.
4. In Sec. 220.8:
a. paragraph (a)(1) is amended by removing the second occurrence of
the word ``or'' and adding in its place a comma and by adding the words
``, or (h)'' after the reference to ``(e)(1)'';
b. paragraph (a)(2) is amended by removing the second occurrence of
the word ``or'' and adding in its place the words ``or (h)'' after the
reference to ``(e)(1)'';
c. paragraph (a)(3) is revised;
d. paragraph (a)(4) is amended by removing the reference to
``1990'' and adding in its place a reference to ``1995'';
e. the first sentence of paragraph (a)(5) is revised;
f. the first sentence of paragraph (a)(6) is amended by removing
the word ``or'' and adding in its place a comma and by adding the words
``or those developed under paragraph (h)'' after the reference to
``paragraph (e)(1)'' and the second sentence of paragraph (a)(6) is
amended by removing the third occurrence of the word ``or'' and adding
in its place a comma and by adding the words ``or those developed under
paragraph (h)'' after the reference to ``paragraph (e)(1)'';
g. the table in paragraph (b)(1) is revised;
h. the table in paragraph (b)(2) is revised;
i. paragraph (c) is revised;
j. the heading of paragraph (e)(4) and paragraph (e)(9) are amended
by removing the words ``National Nutrient Database'' and adding in
their place the words ``Child Nutrition Database'';
k. paragraphs (e)(4) and (e)(8) are amended by removing the words
``National Nutrient Database for the Child Nutrition Programs''
wherever they appear and by adding the words ``Child Nutrition
Database'' in their place;
l. the heading of paragraph (g) is revised and introductory text is
added;
m. the introductory text of paragraph (g)(1) is amended by removing
the words ``in the table in paragraph (g)(2) of this section'' and
adding in their place the words ``either in the table in paragraph
(g)(2) or (g)(3) of this section, whichever is applicable'';
n. paragraph (g)(2) is revised;
o. paragraphs (h) through (m) are redesignated as paragraphs (i)
through (n), respectively, and a new paragraph (h) is added; and
p. in newly redesignated paragraph (n), the reference to ``1990''
is removed and a reference to ``1995'' is added in its place.
The additions and revisions are as follows:
Sec. 220.8 Nutrition standards for breakfast and menu planning
alternatives.
(a) Nutrition standards for breakfasts for children age 2 and over.
* * *
(3) The applicable recommendations of the 1995 Dietary Guidelines
for Americans which are: eat a variety of foods; limit total fat to 30
percent of calories; limit saturated fat to less than 10 percent of
calories; choose a diet low in cholesterol; choose a diet with plenty
of grain products, vegetables, and fruits; choose a diet moderate in
salt and sodium; and choose a diet moderate in sugars.
* * * * *
(5) School food authorities have several alternatives for menu
planning in order to meet the requirements of this paragraph including
the appropriate nutrient and calorie levels: nutrient standard menu
planning as provided for in paragraph (e) of this section; assisted
nutrient standard menu planning as provided for in paragraph (f) of
this section; traditional food-based menu planning as provided for in
paragraph (g)(1) of this section; enhanced food-based menu planning as
provided for in paragraph (g)(2) of this section; or other menu
planning approaches as provided for in paragraph (h) of this section. *
* *
* * * * *
(b) Nutrient levels/nutrient analysis.
[[Page 27184]]
(1) * * *
[GRAPHIC] [TIFF OMITTED] TP15MY98.006
(2) * * *
[GRAPHIC] [TIFF OMITTED] TP15MY98.007
(c) Minimum nutrient levels for school breakfasts/food-based menu
planning alternatives. (1) Traditional food-based menu planning
alternative. For the purposes of the traditional food-based menu
planning alternative, as provided for in paragraph (g)(2) of this
section, the following chart provides the minimum levels, by grade
group, for calorie and nutrient levels for school breakfasts offered
over a school week:
[[Page 27185]]
[GRAPHIC] [TIFF OMITTED] TP15MY98.008
(2) Enhanced food-based menu planning alternative. For the purposes
of the enhanced food-based menu planning alternative, as provided for
in paragraph (g)(1) of this section, the following chart provides the
minimum levels, by grade group, for calorie and nutrient levels for
school breakfasts offered over a school week:
[GRAPHIC] [TIFF OMITTED] TP15MY98.009
* * * * *
(g) Food-based menu planning alternatives. School food authorities
may choose to plan menus using either the traditional or enhanced food-
based menu planning alternatives. Under these alternatives, specific
food components shall be offered as provided in either paragraphs
(g)(1) or (g)(2) of this section, whichever is applicable, and in
paragraphs (g)(3) and (g)(4) of this section, as appropriate.
* * * * *
[[Page 27186]]
(2) Minimum quantities-food-based menu planning alternatives. (i)
At a minimum, schools using the traditional food-based menu planning
alternative shall serve breakfasts in the quantities provided in the
following chart:
[GRAPHIC] [TIFF OMITTED] TP15MY98.010
[[Page 27187]]
(ii) At a minimum, schools using the enhanced food-based menu
planning alternative shall serve breakfasts in the quantities provided
in the following chart:
[GRAPHIC] [TIFF OMITTED] TP15MY98.011
* * * * *
(h) Other menu planning alternatives.
(1) Modification. Under the traditional or enhanced food-based menu
planning alternatives, school food authorities may, if only one age or
grade is outside the established levels, use the levels for the
majority of children for both portions and the Recommended Dietary
Allowances and breakfast energy allowances. State agencies may require
prior approval for adopting this alternative, may establish guidelines
for its adoption, or may permit its adoption without prior approval.
(2) Major changes or new alternatives: use and approval. Subject to
the requirements of paragraphs (h)(3) of this section, school food
authorities or State agencies may modify one of the menu planning
alternatives established in paragraphs (e) through (g) of this section
or may develop their own menu planning approach. Any such alternate
menu planning approaches shall be in writing for review and monitoring
purposes, as applicable. No formal plan
[[Page 27188]]
is required; the written alternate approach may be in the form of
guidance, protocol, or the like. The alternate approach shall address
how the provisions in paragraph (h)(3) shall be met.
(i) Any school food authority developed menu planning approach
shall have prior State agency review and approval.
(ii) Except as noted in paragraph (h)(2)(iii), any State agency-
developed menu planning alternative shall have prior FNS approval.
(iii) Any State agency developed alternative is not subject to FNS
review if:
(A) Five or more school food authorities within the State use the
approach;
(B) The State agency maintains on-going oversight of the operation
and evaluation of the alternative menu planning approach including
making adjustments to the approach's policies and procedures, as
necessary, to ensure compliance with the applicable provisions in
paragraph (h)(3) of this section as needed; and
(C) The State agency issues an announcement notifying the public
concerning the alternate menu planning approach prior to the
implementation of the approach by any school food authority; such
announcement shall be issued in a manner consistent with State
procedures for public notification.
(3) Major changes or new alternatives: required elements. The
following requirements shall be met by any alternate menu planning
approach:
(i) Service of fluid milk, as provided in paragraph (h)(1) of this
section;
(ii) The nutrition standards in paragraphs (a)(1) through (a)(4) of
this section. Any alternate approach shall indicate the age/grade
groups to be served and how such approach is designed to meet these
requirements for those age/grade groups.
(iii) The requirements for competitive foods in Sec. 220.12 and
appendix B to this part;
(iv) For alternate food-based menu planning approaches, the
requirements for crediting food items and products provided for in
paragraphs (g)(2) and (i) of this section, in the appendices to this
part, in Sec. 210.10(k)(3) through (k)(5), Sec. 210.10 (m) and in the
instructions and guidance issued by FNS;
(v) Identification of a reimbursable meal at the point of service.
To the extent possible, the procedures provided in paragraph (e)(2)(i)
of this section for nutrient standard or assisted nutrient standard-
type menu planning approaches or in paragraph (g) of this section for
food-based-type menu planning approaches shall be followed. In
addition, any instructions or guidance issued by FNS that further
defines the elements of a reimbursable meal shall be followed when
using the existing regulatory provisions. Any alternate approach that
deviates from the provisions in paragraph (e)(2)(i) or paragraph (g) of
this section shall indicate what constitutes a reimbursable meal,
including the number and type of items (and, if applicable, the
quantities for these items) which comprise the meal, and how a
reimbursable meal is to be identified at the point of service. Further,
if the alternate approach provides for offer versus serve as allowed
under paragraph (e)(2)(ii) of this section for nutrient standard or
assisted nutrient standard-type menu planning approaches or in
paragraph (g)(3) of this section for food-based-type menu planning
approaches, the alternate approach shall follow those provisions to the
extent possible. Any alternate approach that deviates from the
provisions in paragraph (e)(2)(ii) or (g)(3) of this section shall, at
a minimum, indicate what age/grade groups are included in offer versus
serve and establish the number and type of items (and, if applicable,
the quantities for the items) that constitute a reimbursable meal under
offer versus serve. In addition, the alternate offer versus serve
procedures shall include an explanation of how such procedures will
reduce plate waste and provide a reasonable level of calories and
nutrients for the meal as taken;
(vi) An explanation of how the alternate approach can be monitored
under the applicable provisions of Sec. 210.18 and Sec. 210.19,
including a description of the records that will be maintained to
document compliance with the program's administrative and nutrition
requirements. However, to the extent that the procedures under
Sec. 210.19 are inappropriate for monitoring the alternate approach,
the alternate approach shall include a description of review procedures
which will enable the State agency to assess compliance with the
nutrition standards in paragraphs (a)(1) through (a)(4) of this
section; and
(vii) The requirements for weighted analysis and for approved
software for nutrient standard menu planning as required by paragraphs
(e)(4) and (e)(5) of this section unless a State agency developed
approach meets the criteria in paragraph (h)(2)(iii) of this section.
* * * * *
Sec. 220.8a [Removed]
5. Section 220.8a is removed.
Sec. 220.9 [Amended]
6. In Sec. 220.9, paragraph (a) is amended by removing the words
``or Sec. 220.8a, whichever is applicable,''.
Sec. 220.14 [Amended]
7. In Sec. 220.14, paragraph (h) is amended by removing the words
``or Sec. 220.8a(a)(1), (b)(2), and (b)(3), whichever is applicable''.
Appendix A [Amended]
8. In Appendix A to Part 220--Alternate Foods for Meals, paragraph
1.(a) is amended by removing the words ``or 220.8a, whichever is
applicable''.
Appendix C [Amended]
9. In Appendix C to Part 220--Child Nutrition (CN) Labeling
Program:
a. paragraph 2.(a) is amended by removing the words ``or 210.10a,
whichever is applicable'';
b. paragraph 3.(c)(2) is amended by removing the words ``or
210.10a, whichever is applicable'' and is further amended by removing
the words ``or 220.8a, whichever is applicable''; and
c. paragraph 6. is amended by removing the words ``or 210.10a,
whichever is applicable'' and is further amended by removing the words
``or 220.8a, whichever is applicable''.
* * * * *
Dated: April 27, 1998.
Shirley R. Watkins,
Under Secretary for Food, Nutrition and Consumer Services.
Editorial Note: FR Doc. 98-11654 was originally published at 63
FR 24686-24709 in the issue of Monday, May 4, 1998. Due to numerous
errors, the document is being republished in its entirety. The
comment dates have changed. Also, disregard the correction document
published at 63 FR 25569 May 8, 1998.
[FR Doc. 98-11654 Filed 5-1-98; 8:45 am]
BILLING CODE 1505-01-F
