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

SUMMARY: This final rule amends the regulations governing the nutrition

standards for the National School Lunch and School Breakfast Programs.

It is part of an integrated, comprehensive plan for promoting the

health of the Nation's school children by updating the nutrition

standards for school meals and by providing State agencies and local

food service operators with the technical assistance and tools to meet

these standards. On June 10, 1994, the Department proposed

improvements, including a provision to incorporate the Dietary

Guidelines for Americans into the program regulations. The Dietary

Guidelines for Americans set forth medical and scientific consensus on

proper nutrition as a vital element in disease prevention and long-term

health promotion. That proposal would have also established a method of

meal planning and preparation based on computerized nutrient analysis.

On January 27, 1995, the Department published a supplemental proposal

to provide local food authorities with an additional meal planning

option--a food-based menu system. This final rule implements provisions

of both proposals and reflects the Department's review of the comments

received on those proposals. The foundation of this final rule is the

requirement that, by School Year 1996/1997, school lunches and

breakfasts comply with the recommendations of the Dietary Guidelines

for Americans. This rule also establishes specific minimum standards

for key nutrients and calories which school meals must meet. To

facilitate implementation of the updated standards, the regulation

provides schools with three meal planning options and streamlines some

administrative requirements to enhance flexibility for schools and

State agencies. This rule also incorporates some provisions of the

Healthy Meals for Healthy Americans Act of 1994. The effect of this

rule will be to provide more healthful and nutritious meals to the

Nation's school children.

EFFECTIVE DATE: July 13, 1995

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Eadie, Chief, Policy and

Program Development Branch, Child Nutrition Division, Food and Consumer

Service, USDA, 3101 Park Center Drive, Alexandria, Virginia, 22302;

telephone: 703-305-2620.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final rule has been determined to be significant and was

reviewed by the Office of Management and Budget under Executive Order

12866.

Regulatory Flexibility Act

This final rule has been reviewed with regard to the requirements

of the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The

Administrator of the Food and Consumer Service (FCS) has certified that

this rule will not have a significant economic impact on a substantial

number of small entities. In the interest of furthering efforts to

reinvent government, this rule reduces current State agency

administrative burdens and makes a technical adjustment in the

recordkeeping burdens. In addition, the Department of Agriculture (the

Department or USDA) does not anticipate any adverse fiscal impact on

local schools. Analyses by FCS and the Department's Economic Research

Service found that the menu planning aspects can be met at the current

cost of food in the National School Lunch and School Breakfast

Programs. Further, these analyses indicate that the reimbursement

structure of the Programs, along with student payments for meals

served, provide sufficient subsidy.

Catalog of Federal Assistance

The National School Lunch Program and the School Breakfast Program

are listed in the Catalog of Federal Domestic Assistance under Nos.

10.555 and 10.553, respectively, and are subject to the provisions of

Executive Order 12372, which requires intergovernmental consultation

with State and local officials. (7 CFR Part 3015, Subpart V and final

rule-related notice at 48 Federal Register (FR) 29112, June 24, 1983.)

Executive Order 12778

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This final rule is intended to have preemptive

effect with respect to any State or local laws, regulations or policies

which conflict with its provisions or which would otherwise impede its

full implementation. This final rule is not intended to have

retroactive effect unless so specified in the Effective Date section of

this preamble. Prior to any judicial challenge to the provisions of

this final rule or the application of the provisions, all applicable

administrative procedures must be exhausted. In the National School

Lunch Program and School Breakfast Program, the administrative

procedures are set forth under the following regulations: (1) School

food authority appeals of State agency findings as a result of an

administrative review must follow State agency hearing procedures as

established pursuant to 7 CFR 210.18(q); (2) school food authority

appeals of FCS findings as a result of an administrative review must

follow FCS hearing procedures as established pursuant to 7 CFR

210.30(d)(3); and (3) State agency appeals of State Administrative

Expense fund sanctions (7 CFR 235.11(b)) must follow the FCS

Administrative Review Process as established pursuant to 7 CFR

235.11(f).

Information Collection

This final rule contains information collection requirements which

are subject to review by the Office of Management and Budget (OMB)

under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35). The

title, description, and respondent description of the information

collections are shown below with an estimate of the annual reporting

and recordkeeping burdens. Included in the estimate is the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

Title: National School Lunch Program and School Breakfast Program:

School Meals Initiative for Healthy Children.

Description: Under this final rule, some existing recordkeeping

activities contained in 7 CFR parts 210 and 220 would be affected. The

OMB control numbers are 0584-0006 and 0584-0012, respectively.

Description of Respondents: State agencies, school food authorities

and schools doing on-site preparation of meals.

[[Page 31189]]

Estimated Annual Recordkeeping Burden

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

Average

Annual Annual burden per Annual burden

7 CFR 210.8 (a)(3) number of frequency response hours

respondents (hours)

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

Existing................................................. 20,249 12 2 485,976

New...................................................... * 3,442 12 2 82,608

Difference............................................... ........... ........... ........... -403,368

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

* These respondents represent the 17% of school food authorities which are found through administrative reviews

conducted under Sec. 210.18 to have counting and claiming deficiencies and therefore must continue using the

current edit checks.

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

Annual Average

7 CFR 210.10/nutrient analysis menu planning number of Annual burden per Annual burden

respondents frequency response hours

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

Existing................................................. ........... ........... ........... ..............

New...................................................... * 14,235 180 .333 853,246

Difference............................................... ........... ........... ........... +853,246

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

* This estimate uses approximately 20% of schools. Please note that the current OMB approved burden is based on

70,455 schools. However, for the purposes of a more accurate comparison, the current burden has been adjusted

here to include the same number of schools used to determine the new burden.

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

Annual Average

7 CFR 210.10/ food-based menu planning number of Annualfrequency burden per Annual burden

respondents response hours

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

Existing............................................. * 71,176 180 .25 3,202,920

New................................................. ** 56,941 180 .25 2,562,345

Difference........................................... ........... ............... ........... -640,575

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

* Please note that the current OMB approved burden is based on 70,455 schools. However, for the purposes of a

more accurate comparison, the current burden has been adjusted here to include the same number of schools used

to determine the new burden.

** This estimate uses approximately 80% of schools.

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

Annual Average

7 CFR 210.15(b)(4) number of Annual burden per Annual burden

respondents frequency response hours

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

Existing................................................. 20,249 12 52.333 12,716,291

New...................................................... ........... ........... ........... ..............

Difference............................................... ........... ........... ........... -12,716,291

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

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

Annual Average

7 CFR 220.8/nutrient analysis number of Annual burden per Annual burden

respondents frequency response hours

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

Existing................................................. ........... ........... ........... ..............

New...................................................... * 12,117 180 .117 255,184

Difference............................................... ........... ........... ........... +255,184

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

* This estimate uses approximately 20% of schools. Please note that the current OMB approved burden is based on

49,962 schools. However, for the purposes of a more accurate comparison, the current burden has been adjusted

here to include the same number of schools used to determine the new burden.

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

Annual Average

7 CFR 220.8/food-based menu planning number of Annual burden per Annual burden

respondents frequency response hours

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

Existing................................................. * 60,585 180 .083 905,140

New...................................................... ** 48,468 180 .083 724,112

Difference............................................... ........... ........... ........... -181,028

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

* Please note that the current OMB approved burden is based on 49,962 schools. However, for the purposes of a

more accurate comparison, the current burden has been adjusted here to include the same number of schools used

to determine the new burden.

** This estimate uses approximately 80% of schools.

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

Annual Average

7 CFR 220.13(i) number of Annual burden per Annual burden

respondents frequency response hours

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

Existing................................................. 5,658 12 34 2,308,464

New...................................................... ........... ........... ........... ..............

Difference............................................... ........... ........... ........... -2,308,464

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

[[Page 31190]]

As required by section 3504(h) of the Paperwork Reduction Act of

1980, 44 U.S.C. 3504(h), FCS has submitted a copy of this final rule to

OMB for review of these information collection requirements. Other

organizations and individuals desiring to submit comments regarding

this burden estimate or any aspects of these information collection

requirements, including suggestions for reducing the burdens, should

direct them to the Policy and Program Development Branch, Child

Nutrition Division, (address above) and to the Office of Information

and Regulatory Affairs, OMB, Room 3208, New Executive Office Building,

Washington, DC 20503, Attention: Laura Oliven, Desk Officer for FCS.

Background

The primary purpose of the National School Lunch Program (NSLP), as

instituted by Congress in 1946, was ``to safeguard the health and well-

being of the Nation's children. * * *'' (Section 2 of the National

School Lunch Act (NSLA), 42 U.S.C. 1751). At that time, nutritional

concerns in the United States centered on nutrient deficiencies and

issues of underconsumption. Therefore, over time, meal requirements for

the NSLP (7 CFR 210.10) were designed to provide foods sufficient to

approximate one-third of the National Academy of Sciences' Recommended

Dietary Allowances (RDA). Participating schools were required to offer

meals that complied with general patterns established by the

Department. These patterns were developed to provide balanced meals by

focusing on minimum amounts of specific components (meat/meat

alternate, bread/bread alternate, vegetables, fruits and milk) rather

than on the nutrient content of the entire meal. Virtually no

substantive changes have been made to these patterns since the

program's inception.

Over the past 50 years, an array of scientific knowledge has been

developed which documents that excesses in consumption are a major

concern because of their relationship to the incidence of chronic

disease. The typical diet in the United States is high in fat,

saturated fat and sodium and low in complex carbohydrates and fiber. As

a result of this accumulating body of scientific research, dietary

recommendations for the population of the United States were developed

in the late 1970's. These recommendations were followed in 1980 by the

Dietary Guidelines for Americans (or Dietary Guidelines), issued

jointly by the Department of Agriculture and the Department of Health

and Human Services. These Dietary Guidelines were subsequently updated

in 1985 and again in 1990. Also in that year, Title III of the National

Nutrition Monitoring and Related Research Act of 1990 (Public Law (Pub.

L.) 101-445, 7 U.S.C. 5301, et. seq.) was enacted. This law requires

that the Dietary Guidelines be reviewed by a panel of experts every

five years to determine whether the existing standards need to be

altered and, if so, to recommend changes. As a result of this process,

the Dietary Guidelines are based on the best available scientific and

medical knowledge. (Readers wishing a more detailed discussion of the

development of the Dietary Guidelines should refer to the preamble of

the June 10, 1994, proposal at 59 FR 30219.)

The current Dietary Guidelines recommend that people eat a variety

of foods; maintain a healthy weight; choose a diet with plenty of

vegetables, fruits, and grain products; and use sugar and sodium in

moderation. The Dietary Guidelines also recommend diets that are low in

fat, saturated fat, and cholesterol so that over time, fat comprises 30

percent or less of caloric intake and saturated fat less than 10

percent of total calories for persons two years of age and older.

Information available to the Department consistently shows that

children's diets, including meals served in schools, do not conform to

the recommendations of the Dietary Guidelines. Especially significant

were the findings of a nationally representative USDA study entitled

the School Nutrition Dietary Assessment (SNDA) study. Released in

October, 1993, the SNDA study presented findings on the nutrients and

foods provided in school meals and described the dietary intakes of

students on a typical school day. The study compared nutrients provided

in school meals with the recommendations of the Dietary Guidelines on

fat and saturated fat, the National Research Council's (NRC) Diet and

Health recommendations on sodium, cholesterol and carbohydrate intake,

and the current objectives that the nutrients provided in the NSLP meet

one-third of the RDA and that the School Breakfast Program (SBP) meet

one-fourth of the RDA.

The findings from the SNDA study showed that school lunches meet

the nutrition standards established at the start of the NSLP in the

late 1940's, but the study also showed that school lunches exceed the

recommended levels of fat and saturated fat established by the Dietary

Guidelines. Specifically, the average percentage of calories from total

fat was 38 per cent compared with the recommended goal of 30 per cent

or less; and the percentage from saturated fat was 15 per cent,

compared with the recommended goal of less than 10 per cent. The study

also found that children who ate the school lunch consumed a

significantly higher amount of calories from fat than children who

brought their lunch from home or obtained a lunch from vending machines

or elsewhere at school. The SNDA study also showed that while school

meals met the NRC recommendation on cholesterol, the meals did not meet

the NRC recommendations on sodium or carbohydrate levels. In fact, the

level for sodium, at 1,479 milligrams, was nearly two times the NRC

lunch target of 800 milligrams. Even though the SBP did meet most of

the recommendations in the Dietary Guidelines, the number of lunches

served in schools far exceeds the number of breakfasts served. It is

clear, therefore, that school meals do not conform overall to current

scientific knowledge of what constitutes a healthful diet.

The SNDA study underscored the fact that the meal patterns have not

kept up over the years with scientific knowledge about diet. This

situation is cause for concern because it demonstrates the need for

significant improvement if the school nutrition programs are to meet

the objective of the NSLA to safeguard the health and well-being of the

nation's children.

As the first step toward achieving meaningful improvement in

children's diets and, thus, their health and future well being, the

Department considers it necessary to update the regulations by setting

specific nutrition criteria for reimbursable school meals including

incorporating the RDA for key nutrients, energy allowances for

calories, and the most current nutritional standards as outlined in the

Dietary Guidelines as requirements for the NSLP and SBP. Before

proceeding with a rulemaking, however, the Department recognized the

importance of public input. To obtain this input, the Department

solicited comments on nutrition objectives for school meals through

public hearings and written comments. In a notice published in the

Federal Register (58 FR 47853, September 13, 1993), the Department

announced a series of four public hearings. Any person who was

interested could register to speak at any of the hearings. Persons

unable to testify in person were invited to submit written comments.

A total of 363 witnesses testified at the hearings, and an

additional 2,013 written comments were received by the Department,

representing medical [[Page 31191]] professionals, nutritionists or

dietitians, public health, nutrition or food organizations (21%); the

general public (21%); parents and students (21%); school food service

personnel, school food service organizations and State education/child

nutrition agencies (16%); teachers, school officials and school

associations (11%); food industry (7%); and other State or Federal

agencies or members of Congress.

In general, commenters voiced support for the goal of more

nutritious meals which meet the current Dietary Guidelines. However,

the comments also raised some concerns about paperwork burden, the

quality of USDA donated commodities and the need for enhanced training

and education. (Readers wishing a complete analysis of the themes and

concerns raised by commenters should refer to the preamble of the June

10, 1994, proposal at 59 FR 30221-30225.)

From the testimony and written comments, the Department developed

Guiding Principles and a Framework for Action to address the need for a

comprehensive, integrated plan to improve school meals. The five

Guiding Principles are:

Healthy children--Our goal is to provide our Nation's children with

access to school meal programs that promote their health, prevent

disease, and meet the Dietary Guidelines for Americans.

Customer appeal--We understand that if food doesn't look good or

taste good, children will not eat it. We must involve students,

parents, teachers and the food and agriculture community in any change

through a national nutrition education campaign, using the media that

children and parents understand and the language that they speak.

Flexibility--We have to reduce paperwork, streamline reporting

systems, recognize regional and economic differences and offer schools

different approaches to designing menus that meet the Dietary

Guidelines. To do this, we must use technology more effectively.

Investing in people--We must provide schools and school food

service directors with the training and technical assistance they need

to bring about nutrition changes in the school meal programs and build

the nutrition skills of our nation's children, and thereby improve

their health.

Building partnerships--To meet our national health responsibility

to American children and to increase cost effectiveness, we must forge

partnerships throughout the public and private sectors. This includes

continuing collaborative efforts with our Federal partners at the

Departments of Education and Health and Human Services and building

bridges to consumer and industry groups.

Guided by these five principles, USDA constructed a comprehensive,

integrated framework for action:

I. Eating for Health: Meeting the Dietary Guidelines. School meals'

nutrition standards will be updated and expanded to include the Dietary

Guidelines for Americans with standards for fat and saturated fat as

well as required nutrients.

II. Making Food Choices: Nutrition Education, Training and

Technical Assistance. It is not enough to change the food on the plate.

We must also provide the knowledge and the skills that enable children

to make choices that lead to a nutritious diet and improved health. It

also is vital that local meal providers receive training on how to

improve meal quality. This dual initiative to educate children and

assist meal providers offers many opportunities to influence both what

foods are offered by schools and what foods are eaten by children.

III. Maximizing Resources: Getting the Best Value. By marshalling

all available resources and strengthening partnerships with our State

and local cooperators, we will stretch food dollars and cut costs while

improving the nutritional profile of commodities. We will enhance

access to locally grown commodities and better use regional

agricultural resources. And we will provide assistance, training and

the power of Federal purchases to help school administrators manage

school meal programs in a more cost-effective way.

IV. Managing for the Future: Streamlined Administration. It is

necessary to reduce the paperwork and administrative burdens of local

administrators. We will streamline procedures and emphasize

administrative flexibility to free State and local food program

managers to concentrate on nutrition.

June 10, 1994, Proposed Rulemaking

As an important part of this overall initiative, the Department

published a proposed rule on June 10, 1994, to update and expand the

nutrition standards for the school meal programs, to incorporate the

Dietary Guidelines into the NSLP and SBP regulations and to require

that school meals meet the applicable recommendations of the Dietary

Guidelines, including the quantified standards established for fat and

saturated fat. This proposal also sought to establish new menu planning

systems that would facilitate compliance with the proposed updated

nutrition standards, and it included proposals to reduce paperwork and

streamline program administration at both the State and local levels.

Under this proposal, school lunches would be required to provide,

over a school week's menu cycle, one-third of the RDA for protein,

vitamin A, vitamin C, iron and calcium as well as one-third of the

energy allowances for calories for the appropriate age/grade group.

Breakfasts would be required to provide one-fourth of the RDA for the

same nutrients and for calories over a school week's menu cycle. In

addition, under the June 10th proposal, by School Year 1998/1999, at

the latest, both breakfasts and lunches would have been required to

comply with the recommendations of the Dietary Guidelines, including

the limitations on fat (30% of total calories) and saturated fat (less

than 10% of total calories).

To provide local food service directors with flexibility to meet

these nutrition goals, the Department proposed to replace the current

rigid meal patterns with a method of menu planning and preparation

called Nutrient Standard Menu Planning (NuMenus). Under NuMenus, a

nutrient analysis is conducted on all foods offered as part of

reimbursable meals over a school week, and appropriate adjustments are

made to ensure that the meals meet the nutrition standards. In

recognition of the fact that some school food authorities may not have

the computer capability or the access to technical support necessary to

conduct NuMenus independently, the proposal allowed school food

authorities to use a modified form of NuMenus, called Assisted NuMenus,

under which schools could arrange for menu development and nutrition

analysis by other entities, such as State agencies, consortiums of

school food authorities or consultants.

Since meals would no longer have had to conform to the traditional

five-item meal pattern structure, the Department proposed that a

reimbursable lunch must include a minimum of three menu items, one of

which had to be an entree and another which had to be fluid milk.

(Fluid milk is required by section 9(a)(2)(A) of the NSLA, 42 U.S.C.

1758(a)(2)(A).) Moreover, if a school participates in ``offer-versus-

serve'' (defined in current regulations at 7 CFR 210.10(e) and

220.8(a)(3)), the child must select at least two menu items, one of

which would be an entree. (The Department did not propose to extend the

requirement concerning entrees to the breakfast program.) Under the

proposed [[Page 31192]] rule, the nutrients in all menu items or other

foods offered as part of the reimbursable meal would be analyzed to

determine whether or not the nutrition standards were being met.

However, the nutrient analysis would have to be weighted to reflect the

nutrient and calorie levels that each menu item or food offered

actually contributed to the meals. Weighting is necessary to indicate

the proportion the menu items and foods actually represent in the meal

service offered, rather than simply being an average of the nutrients

in all of the items listed on the menu.

The Department also proposed to establish a nutrition monitoring

system for State agencies which would be coordinated with other

oversight activities. Under this system, State agency reviewers would

assess the school's nutrient analysis for the last completed school

week to determine if the school was applying the correct methodology

and was properly conducting the analysis. If the State agency's review

indicated that the school was not conducting NuMenus accurately or was

not applying Assisted NuMenus properly, or if the meals, as offered,

did not comply with nutrition standards, the school food authority

would be required to take appropriate corrective action to achieve

compliance. The State agency would monitor the school's corrective

action efforts to ensure that progress was being made toward

compliance. The State agency would be required to impose fiscal

sanctions only if the school's violation was intentional or the school

refused to comply with the corrective action plan.

Finally, the Department proposed three provisions to streamline

program administration. The first of these would extend the Coordinated

Review Effort (CRE) review cycle from four to five years, thereby

providing State agencies with additional flexibility to undertake

technical assistance and corrective action efforts. The second

provision would eliminate the regulatory requirement for a specific

type of edit check on daily meal counts if no meal counting or claiming

problems were identified on the most recent CRE review. Instead, a

school food authority could develop and implement its own system of

internal controls to ensure the accuracy of claims. Lastly, the

Department proposed removing the regulatory requirement that school

food authorities maintain records specifically to document the

nonprofit status of their food service. Rather, the records kept as a

normal part of operating a business would suffice.

The Department established a 90-day comment period on this

proposal, which expired on September 8, 1994. During this period, the

Department received over 14,000 comments. The following shows the

number of commenters by class which were received on the June 10, 1994,

proposed rule as well as those received on the January 27, 1995,

proposal which is discussed in more detail below:

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

January

June 10, 27,

1994, 1995,

proposed proposed

rule rule

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

General public/others............................... 1,112 9

Parents/Grandparents/students....................... 1,967 0

School food service................................. 9,894 199

Medical/Registered dieticians/Public health/Food

organizations...................................... 262 26

Teachers/Professors/School organizations............ 661 79

Food industry/Chefs................................. 180 50

Federal agencies/Congress........................... 16 0

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

Totals........................................ 14,092 363

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

All of these comments were considered, and a detailed discussion of

the major issues and concerns raised by commenters occurs later in this

preamble.

Public Law 103-448 and the January 27, 1995, Proposed Rulemaking

Before the Department could finalize the June 10, 1994, proposal,

Pub. L. 103-448, the Healthy Meals for Healthy Americans Act of 1994,

was enacted on November 2, 1994. This law essentially codified the

major provisions of the June 10th proposed rule. However, the law did

mandate compliance with the Dietary Guidelines by School Year 1996/

1997--two years earlier than the Department had proposed--although

State agencies are authorized to waive implementation on a case-by-case

basis until School Year 1998/1999. Public Law 103-448 also provided

that schools could elect to use a ``food-based'' system of menu

planning and preparation in lieu of NuMenus or Assisted NuMenus. The

law further directed the Department to hold a public meeting with

affected parties within 45 days of publication of a proposed rule to

implement the nutrition-related provisions of Pub. L. 103-448. Because

of the need to expedite the rulemaking activity, the law (section

112(c) of Pub. L. 103-448, 42 U.S.C. 1760(k)(2)) specifically exempted

this meeting from the procedures normally required under the

Administrative Procedure Act.

On January 27, 1995, the Department published a rule (60 FR 5514)

proposing to incorporate the statutory requirement of section 106(b) of

Pub. L. 103-448 (42 U.S.C. 1758(f)(1)) that school meals conform to the

Dietary Guidelines by School Year 1996/1997, unless a waiver of up to

two years is authorized by the State agency. The rule also proposed

revisions to the existing meal pattern to enable schools using a

``food-based'' menu planning system to comply with the updated

nutrition standards including the recommendations of the Dietary

Guidelines. Finally, the proposal included a provision for State agency

monitoring of food-based menu planning systems to ensure compliance

with the nutrition standards, similar to the monitoring provisions

proposed for NuMenus and Assisted NuMenus.

In developing the proposed food-based menu planning system, the

Department retained the component structure of the current meal

patterns for lunches and breakfasts because their familiarity would

facilitate implementation at the local level. However, the Department

proposed revisions to the age/grade groups: Two mandatory age/grade

groupings: kindergarten through grade 6, and grade 7 through grade 12,

with an optional grouping for kindergarten through grade 3. These

groups are designed to reflect the need to distinguish the nutrient and

caloric needs of younger and older children while also accommodating

the grade structures of the majority of schools.

Moreover, the Department did not propose any reductions to the

current minimum quantity requirements for any components. The principal

differences between the proposed food-based menu planning system and

the current meal patterns reflect increases in the quantities of

vegetables/fruits and breads/grains products for reimbursable lunches.

This change was intended to maintain calories while reducing fat. For

children in kindergarten through grade 6, the Department proposed that

the serving of fruits/vegetables be three-quarters of a cup per lunch

plus an additional one-half cup served over a five-day period. The

proposal set the minimum quantity of vegetables/fruits to one cup per

lunch for children in grades 7 through 12.

With respect to grains/breads, the proposal would require that the

number of lunch period servings per week for children in kindergarten

through grade 6 be increased from the current 8 to 12. For children in

grades 7 through 12, the number of servings would be increased from 8

(10 recommended) to 15 per week. To provide schools with

[[Page 31193]] flexibility in meeting this requirement, the proposal

further allowed one serving per day to be in the form of a grain-based

dessert, such as rice pudding.

The Department proposed no changes to the quantity and component

requirements for breakfasts. However, the proposal encouraged school

food authorities to offer children in grades 7 through 12 an additional

serving of the grains/breads component each day. This optional increase

was intended to provide sufficient calories to meet the needs of

adolescent children, especially males, when the fat content was

modified to conform to the Dietary Guidelines.

Finally, to provide sufficient State agency oversight of meal

services employing a food-based menu planning system, the Department

proposed to have State agencies conduct a nutrient analysis of one

week's meals using the school's menus and supporting production

records. Under the proposal, the State agency would be required to do

the nutrient analysis once every five years and could combine the

analysis with administrative review activity. As noted above, all

school food authorities will be required, beginning with School Year

1996/1997, unless the requirement is temporarily waived, to comply with

the Department's nutrition standards, including the Dietary Guidelines.

Since schools using a food-based planning system will not generally be

conducting routine analyses of their meals and, therefore, will have no

records documenting compliance, it will be necessary for the State

agency to determine whether or not the way the school is using the

food-based menu planning system actually produces meals that meet the

nutrition standards. In the interests of flexibility, however, the

proposal also would have authorized the Department to approve

alternative review methodologies proposed by a State agency if they

provided the same degree of assurance that school meals are in

compliance with all nutrition standards.

The Department allowed a 45-day comment period, during which 363

comment letters were received. (See chart earlier in this preamble for

a detailed list of the number of commenters by type.) Moreover, on

February 17, 1995, the Department conducted a public meeting and

invited representatives of the health, nutrition, education, food

service and food industry communities to participate. Members of the

general public were also invited to attend and address the meeting.

Twenty-six persons spoke at this meeting, and their comments were also

analyzed and considered in developing this final regulation.

Development of the Final Rule

This final rule incorporates provisions from both the June 10,

1994, and the January 27, 1995, proposed rules. In finalizing the two

proposals, the Department established the same nutrition standards for

all menu planning approaches, including the key nutrients that must be

met. In essence, this rule provides an array of menu planning methods

for school food authorities to choose from to meet the Dietary

Guidelines. The remainder of this preamble addresses the key issues

raised by commenters on both proposals.

Nutrition Standards: Dietary Guidelines, RDA and Calories

As mentioned earlier, both proposals would have incorporated the

Dietary Guidelines as well as specific standards for RDA and calories

into the NSLP and SBP regulations. Under the proposals, school lunches

would be required to meet one-third of the RDA for protein, vitamin A,

vitamin C, iron and calcium as well as one-third of the Recommended

Energy Intake (calories). School breakfasts would be required to

provide one-fourth of the RDA for the same nutrients and calories.

Moreover, in the June 10, 1994, rulemaking, the Department proposed

incorporation of the recommendations of the 1990 Dietary Guidelines

appropriate for school meals and announced its intention to review

modifications or additions in subsequent issues of the Dietary

Guidelines for possible future inclusions in the applicable program

regulations. The proposed rulemaking also would have required full

implementation by School Year 1998/1999.

However, section 106(b) of Pub. L. 103-448, the Healthy Meals for

Healthy Americans Act of 1994, amended section 9 of the NSLA, 42 U.S.C.

1758(f)(2)(C), to require that school meals meet the recommendations of

the Dietary Guidelines in School Year 1996/97. The January 27, 1995,

proposal, therefore, included this requirement along with the statutory

authority for State agencies (provided by section 106(b) (42 U.S.C.

1758(f)(2)(B)) to waive implementation on a case-by-case basis until no

later than School Year 1998/1999. Section 106(b) of Pub. L. 103-448 (42

U.S.C. 1758(f)(1)(B)) also requires compliance with the Dietary

Guidelines as they evolve. That is, the Department will adjust the

nutritional standards of the NSLP and SBP if and when changes are made

to the Dietary Guidelines.

Over 2,000 of the more than 14,000 commenters on the June 10, 1994,

proposal addressed the Dietary Guidelines; of these, nearly 1,800

supported their use as the basis for the nutrition standards for school

meals. In addition, over 900 commenters from the school food service

community felt that the Dietary Guidelines could be implemented faster

if they had the option to plan and prepare meals using a food-based

menu planning system. Also, these commenters felt that a food-based

menu planning system would support the goal of the Dietary Guidelines

to increase consumption of fruits and vegetables. The basis for this

latter comment was a perception that nutrient analysis seemed to focus

on the nutrient content of individual foods rather than emphasizing the

food groups, especially as depicted by the Food Guide Pyramid, jointly

issued by the Department of Health and Human Services and USDA. The

Department wishes to note that both proposals, as well as this final

rule, reflect the Dietary Guidelines which the Food Guide Pyramid

presents visually. The Department fully intends to continue using the

Pyramid to promote nutritionally sound diets for the American people,

and the Department expects the Pyramid to continue making a major

contribution to nutrition education in the school meal programs and

among the general public.

In view of the support by commenters, the scientific consensus

recommending the Dietary Guidelines and the subsequent statutory

provisions, the Department is incorporating the appropriate

recommendations of the Dietary Guidelines into this final rule at

Sec. 210.10(b) (3) and (b)(4) and Sec. 220.8(a) (3) and (4), and is

requiring compliance with these recommendations by School Year 1996/97

unless a waiver not to exceed two years (to School Year 1998/99 at the

latest) is authorized by the State agency (Sec. 210.10(o) and

Sec. 220.8(m)). The law does provide the Department with the authority

to establish a later date for compliance (42 U.S.C. 1758(f)(2)(B)), but

the Department does not consider a general extension appropriate given

the importance of implementing the Dietary Guidelines as expeditiously

as possible. As noted above, the statute (42 U.S.C. 1758(f)(1)(B)) also

requires compliance with the most recent Dietary Guidelines. Therefore,

this final regulation specifies compliance with the 1990 Dietary

Guidelines, the most recent version to date. The Department will revise

the school nutrition standards as necessary in the future to

incorporate any [[Page 31194]] appropriate updates to the Dietary

Guidelines.

Over 1,700 commenters specifically addressed the proposed

provisions to implement the Dietary Guidelines' recommendation on

limiting the levels of calories from fat and saturated fat. The

majority of these commenters were parents and students. Many parents

were concerned that the levels established by the Dietary Guidelines

were too low for children and that overemphasizing the need to limit

fat would lead to eating disorders. Other commenters suggested that the

level for fat be set at 32 per cent, not 30 per cent, because they

believed that student participation might decline if fat is reduced too

much. The Department notes, however, that approximately three-quarters

of the comments received from the public health sector agreed with the

proposed levels.

The final regulation includes the current recommendations of the

Dietary Guidelines for fat and saturated fat as proposed because the

Dietary Guidelines represent the best scientific knowledge on nutrition

currently available for everyone above the age of two. Moreover,

Congress mandated that school meals comply with the Dietary Guidelines

in recognition of the fact that they represent scientific consensus.

Given this statutory mandate, the Department has no authority to alter

the current recommendations regarding limits on fat and saturated fat.

The Department recognizes the importance of encouraging children to

accept meals with reduced fat content. Merely enacting policies will

not accomplish change. That is why USDA established Team Nutrition to

implement ``Making Food Choices,'' our nutrition education, training

and technical assistance effort. The mission of Team Nutrition is to

improve the health of children by creating innovative public and

private partnerships that promote healthy food choices through the

media, schools, at home and the community.

As part of this overall effort, the Department has established the

Children's Nutrition Campaign--a multi-faceted education program

delivered through the media, in schools and at home that builds skills

and motivates children to make healthy food choices. The campaign will

bring proven, focused, science-based nutrition messages to children in

a language that they understand while strengthening social support for

children's healthy food choices among parents, educators and food

service professionals. To accomplish this goal, the Department is

building partnerships with public and private sector organizations,

such as the Walt Disney Company, Scholastic Inc. and the National PTA

to name only a few.

The Department is also promoting a Training Plan for Healthy School

Meals--a strategic plan for ``change-driven'' training to provide

support to school food service personnel implementing the Dietary

Guidelines. Through this plan, the Department will ensure that school

nutrition and food service personnel have the education, motivation,

training, and skills necessary to provide healthy meals that are

appealing to the children and meet the nutrition standards established

by this rule. As initial steps in this approach, the Department has

developed improved recipes for schools and is working with the American

Culinary Federation to share recipes and techniques in food preparation

with the school food service community.

In Fiscal Year 1995, the Department is also awarding $4.4 million

in Team Nutrition Grants to enable States to start or expand training

and technical assistance activities for local food service personnel.

The Department expects these grants to result in more expeditious

compliance with the Dietary Guidelines.

The Department considers that providing accurate information about

nutrition through the Children's Nutrition Campaign, as well as

assistance with meal planning and preparation offered through the

Training Plan for Healthy School Meals, will go far toward maintaining,

or even increasing, participation in more healthful school meal

programs.

To comply with the Dietary Guidelines, schools will also need to

decrease the levels of sodium and cholesterol and increase the amount

of dietary fiber and total carbohydrates in school meals. The

Department did not propose specific levels for these components because

numeric targets are not established by the current Dietary Guidelines.

However, progress in this area will be assessed in a variety of ways

including gradual reductions in sodium, and if necessary, cholesterol

levels, and increased use of vegetables, fruits and grain products.

In addition, the Department did not propose measuring sugar or

carbohydrate levels or the school's success in offering a variety of

foods. As stated in the June 10th proposal, specific levels are not

established by the current Dietary Guidelines for these components. The

Department believes, however, that the provisions of this final rule

actively promote an increase in the amount and variety of fruits,

vegetables and grain products in school meals.

Approximately 2,600 comments addressed one or more of the above

issues. The large majority of these were from school food service

personnel, although more than 250 were from the public health

community, with the majority of these agreeing with the Department's

decision not to establish numeric levels. With respect to the

recommendations on sodium, dietary fiber, and cholesterol, the number

who supported including the recommendations without specific limits was

about the same as the number who wanted a specific limit. For sugar and

other carbohydrates, the majority suggested that the Department

establish numeric levels. At this time, the Dietary Guidelines do not

recommend quantitative levels of sodium, fiber, cholesterol, sugar or

carbohydrates. Therefore, the final rule does not establish any numeric

standards for any of these nutrients or dietary components. The

provisions on the Dietary Guidelines are found at Sec. 210.10(b) and

Sec. 220.8(a).

Additional RDA/Tolerances for RDA

Over 300 commenters, approximately half from the school food

service community, addressed the minimum standards for RDA and

calories. Some commenters recommended additional nutrients that should

be measured such as: potassium, thiamine, riboflavin, copper,

magnesium, zinc and B vitamins. Others asked that tolerance levels for

meeting the required nutrients and calorie levels be established. As

stated in the June 10th proposal, the included nutrients were chosen

because they are the key nutrients that promote growth and development.

Moreover, the presence of some of these nutrients is an indication that

other important nutrients such as those suggested by commenters are

present as well. Further, they are consistent with those required in

the Nutrition Labeling and Education Act of 1990 (Pub. L. 101-535) and,

thus, are clearly identified on labels or food specifications. The

Department considers that measurement of nutrients would be too complex

and burdensome if they are not included on labels. Therefore, the

Department does not intend to add any other nutrients to those already

proposed. Finally, with respect to tolerances, the Department does not

consider it appropriate to include them as part of the regulatory

standards, since those standards represent minimums which school food

authorities should always strive to meet. The Department also notes

that, as will be discussed later in this preamble,

[[Page 31195]] schools which are making good faith efforts to comply

will not be held fiscally accountable if they do not meet the standard

precisely. The RDA requirements are found at Sec. 210.10(b) and

Sec. 220.8(a).

Menu Planning Systems

As discussed above, the June 10, 1994, proposal would have required

all school food authorities to plan and prepare meals using Nutrient

Standard Menu Planning (NuMenus) or its corollary, Assisted Nutrient

Standard Menu Planning (Assisted NuMenus). Over 8,600 commenters

addressed the concept of NuMenus. The large majority were from school

food service personnel. Many of these comments stated that the NuMenus

concept was too complex and inflexible and that it, and Assisted

NuMenus, should just be options for menu planning. Some commenters felt

that the proposed system would have the effect of reducing choices for

students and would lower the quality of meals served because of

perceived increases in costs associated with implementation and

training.

Further, over 2,500 commenters addressed the concept of Assisted

NuMenus. Approximately half of these commenters were from the school

food service area, while more than 700 were students or their families,

over 250 were teachers or other school officials, and over 300 from

other sources. Nearly 900 commenters believed Assisted NuMenus was

inflexible, and about 450 found the system too complex. More than 200

commenters specifically recommended that schools without the resources

for NuMenus be allowed to continue using a meal pattern. Other

significant issues involved concerns about costs, possible outside

control over menus and lack of responsiveness to local needs. Finally,

a few commenters requested that the Department provide a set of menus,

recipes, procurement specifications and preparation techniques.

In addition to the issues raised about menu choices and costs, the

Department notes that many commenters were primarily concerned about

being required to adopt NuMenus or Assisted NuMenus. The Department

would like to point out that many commenters underestimated the

flexibility of nutrient standard menu planning. In fact, this system is

inherently flexible since meals would no longer be restricted to

specific components and quantities. In addition, nutrient standard menu

planning supports accommodation of ethnic, regional, and vegetarian

choices. The concern about limiting menu planning options was addressed

by the January 27, 1995, proposal that allows schools to elect a food-

based menu planning system in lieu of NuMenus or Assisted NuMenus. The

Department is retaining NuMenus and Assisted NuMenus in this final

regulation (at Sec. 210.10 (i) and (j) and Sec. 220.8 (e) and (f))

because it continues to believe that these two systems can be valuable

menu planning options in that they allow maximum flexibility. In fact,

these are the only systems that the Department has identified which

allow menu planners to assess their actual compliance with the

quantified recommendations of the Dietary Guidelines and the other

nutrition standards. The Department also notes that section

9(f)(2)(C)(i)(II) of the NSLA, as amended by section 106(b) of Pub. L.

103-448, requires that these two systems be available to local school

food authorities. The Department acknowledges that Assisted NuMenus may

be less responsive to local conditions than NuMenus, but it still

provides a viable option for schools which are unable to conduct

nutrient analysis themselves, but do not wish to continue with a more

rigid meal pattern approach. Furthermore, unlike the food-based system,

Assisted NuMenus will provide schools with accurate analyses of the

nutrient content of the meals they are serving so that schools will be

better able to determine their level of compliance with the Dietary

Guidelines and other nutrition standards, thus alerting schools to

needed menu adjustments. A more detailed discussion of the proposed

methodology occurs later in this preamble.

National Nutrient Database for the Child Nutrition Programs

Successful conduct of nutrient analysis requires accurate

information about the nutrient content of foods. To meet this need, the

Department has developed a centralized National Nutrient Database that

provides standard reference information on the foods and recipes used

in the NSLP and SBP. As described in the preamble to the June 10, 1994,

proposal (59 FR at 30229-30), this database contains information on the

nutritional composition of (1) commodities supplied by the Department,

(2) standard reference food items used in the NSLP and SBP, (3)

Quantity Recipes for School Food Service developed by the Department

and (4) commercial products for which the manufacturer has submitted

nutrient analysis. The proposal, at Sec. 210.10(k)(1) and

Sec. 220.8(j)(1), required that this database be incorporated into all

software systems used to support NuMenus and Assisted NuMenus, and the

Department gave assurance that the database would be made available

free of charge to software companies and would be regularly updated to

ensure that the database is as accurate and current as possible.

The Department received about 150 comments specifically on the

database, primarily from school food service personnel. Most of the

commenters were concerned that it might be too difficult to add local

recipes to the database, while a few believed it would prove difficult

to add locally available processed foods. Finally, there was some

concern that food processors might be required to pay a fee to have

their products included in the database.

The Department recognizes that the effectiveness of this database

is partially dependent on the willingness of the food industry to

submit data about their processed products. To ensure that processed

foods are well represented in the database, the Department has met with

food industry representatives to resolve issues related to the

submission of processed food information. As a result of these

meetings, the Department has taken a number of actions to improve the

submission process. For example, the data submission disk has been

revised to make data entry easier, and the Department is accepting

unrounded data generated by the food industry and some provisional

data. The Department has also reduced the details which must be

reported for quality control purposes and has given industry greater

flexibility in submitting samples of their laboratory results. The

Department will continue to work with the food industry to improve the

system for including processed foods in the database. The Department

also wishes to emphasize that, while processors may pay to have their

products analyzed, there is no fee for having the product included in

the database. Finally, while the Department's database will not include

local recipes and locally available processed foods, the software being

developed for schools to use in nutrient analysis will have a feature

allowing the incorporation of local recipes and products.

School Food Service Software Systems

The Department acknowledges that computer software is essential to

NuMenus and Assisted NuMenus, since without effective software it would

be nearly impossible for school food authorities to conduct the

mathematical and analytical tasks associated with nutrient analysis.

Therefore, the June 10, 1994, proposal required school food

[[Page 31196]] authorities to use a software system that FCS had

determined met a set of minimum requirements. The Department is

undertaking software evaluation as a means of providing technical

assistance to local schools seeking to implement NuMenus or Assisted

NuMenus. While the determination would not constitute an endorsement by

either FCS or the Department, it would ensure that the software used by

local school food authorities has been proven to support the program

requirements for NuMenus and Assisted NuMenus. All approved software

will perform the following specific operations: (1) Compute a weighted

nutritional analysis of meals, (2) weight and average the RDA to

establish new nutrient standards, (3) convert the nutritional analysis

information on any label to 100 grams, (4) create and analyze recipes

and (5) print a calendar format. Also, the software will provide for a

local database into which local recipes and locally available processed

foods can be loaded for analysis. The Department intends to continue

working with the computer software industry to develop and improve

software applications for nutrient analysis. The Department is also

currently working with the software industry to modify their packages

to allow for a combined weighted breakfast/lunch analysis for those

schools wishing to take advantage of this menu planning option. The

database requirements are found at Sec. 210.10(i)(4) and

Sec. 220.8(e)(4).

The Department received approximately 4,800 comments on the

software requirements. Nearly 3,700 commenters, primarily from those in

school food service, raised concerns about the cost of computers and

software needed for NuMenus and Assisted NuMenus. Over 950 commenters

believed the Department should provide or pay for the software, while

over 2,700 maintained that the equipment and software would be too

costly for local schools. The remainder raised concerns about the

complexity of these systems and the need for adequate training.

The Department appreciates these concerns but does not believe it

would be appropriate or practical for the Department to develop

software because local schools must have flexibility to select the

software that is best for their particular circumstances. If the

Department were to provide a specific package, it would not be

compatible with the variety of computer systems currently in use, and

in many cases would not include additional applications which the local

school might want. The Department notes that the price of computer

hardware and software will vary widely, depending on several factors,

including the ability of the software to perform additional functions

such as maintaining inventory. Nevertheless, some approved software is

already available at nominal cost. The Department anticipates that, as

competition in this field increases, market forces will make approved

software even more affordable. It also must be recognized that, when

averaged over the life of the software and the number of meals being

served, the acquisition cost should be quite modest.

Finally, given the range of software which the Department

anticipates being available for local schools to choose from, it would

not be possible for the Department to provide uniform training.

However, software companies routinely provide detailed training as part

of the cost of software, so local schools should not experience any

significant extra cost for training.

Weighted Averages

Sections 210.10(k)(2) and 220.8(j)(2) of the June 10, 1994,

proposal would have required school food authorities to determine

compliance with the nutrition standards by conducting a weighted

analysis of all foods served to children as part of their reimbursable

meals. Thus, if children are offered a choice of more than one entree

(e.g., pizza and fish sticks) the analysis would give more weight to

the nutrients in the more popular item and correspondingly less weight

to those in the less popular item. For example, if 75 percent of the

children select pizza and 25 percent select fish sticks, the nutrients,

calories and other components of the pizza would count for three times

as much as those in the fish sticks. The purpose of this procedure is

to ensure that the menu planner receives an accurate picture of the

entire food service's compliance with the nutrition standards and to

avoid situations in which token items on a menu could make the meal

service appear to be in compliance even though these items are rarely

selected.

The Department received nearly 3,000 comments on this provision,

over 2,700 from school food service personnel. While a few commenters

agreed with the proposal, nearly 1,300 maintained that the procedure

would be too complex, and nearly 100 specifically cited the difficulty

of separating out the a la carte service of items that are also part of

a reimbursable meal. Approximately 1,000 commenters raised concerns

about potential increases in paperwork and meal costs as well as the

possibility that schools would limit choices, thereby reducing

participation. Many commenters contended that school food authorities

would be held accountable for children's food preferences, but that

children frequently do not select foods that are best for them. Some

commenters recommended alternatives to weighted analysis, such as

averaging the nutrients in all of the menu items regardless of whether

or not the items are routinely selected or averaging the nutrients in

the most popular entrees (up to a maximum of three if more than three

are offered), the method employed in a Nutrient Standard Menu Planning

demonstration project in California.

The Department appreciates commenters concerns and recommendations.

With respect to concerns about cost and complexity, the Department

notes that the software designed to accommodate NuMenus and Assisted

NuMenus will have the capacity to perform a weighted nutrient analysis

just as it performs other calculations. Food service personnel,

therefore, should experience much less difficulty with weighted

nutrient analyses than they predicted in their comments. Moreover,

while it may be necessary in some cases for schools to account for menu

and a la carte items separately, in most cases school food service

personnel will be able to make reliable estimates of the proportion of

menu items that will be sold a la carte based on their experience. The

Department does acknowledge that menu planners in centralized food

services may experience some complexity in dealing with different

preference patterns in different schools. The Department is confident,

however, that school districts will be able to work out appropriate

procedures that will not be overly burdensome to individual schools.

In addition, the Department stresses that the value of nutrient

analysis is that it provides a tool for accurately measuring the degree

to which the meals provided to children meet the nutrition standards.

This measurement does not, in itself, penalize the schools. In fact,

the Department believes that it is in the school's interest to have an

accurate picture of its meal service. Without a weighted average,

schools will be unable to track the relationship between what they

offer and what is accepted, or the effects of introducing new foods or

using modified cooking techniques. In the absence of the complete

picture that weighted analysis provides, there is little incentive for

the school to make changes in its menus or to know how best to

undertake nutrition education. [[Page 31197]]

Finally, the Department does not consider that the alternatives

proposed by commenters would represent improvements over the proposed

methodology. While a straight average of the nutrient values of all

menu items would measure the nutrients in the foods available to the

children, there would be little, if any, correlation between the

nutrient analysis and the actual nutrition value of the meals consumed

by the children. The Department's experience with the Nutrient Standard

Menu Planning pilot project conducted during School Years 1983-1985

suggests that an unweighted analysis can, in fact, bias the results.

Although that project did not track fat or saturated fat, certain foods

with high iron content were sometimes offered but were rarely taken by

students. Consequently, an unweighted analysis of menu items made it

appear that children were receiving meals that met the standards for

iron when, in fact, they were not.

These disadvantages apply equally to an analysis which averages the

three most popular entrees. While on the surface, this method appears

to provide a middle ground between weighting everything that is

produced and averaging everything that is on the menu, in fact it does

not provide accurate information about the overall meal service. For

example, if a school served 100 helpings of pizza, 25 helpings of fish

sticks and 5 chef salads, a simple averaging of the three items would

not accurately reflect the actual meal service. Moreover, schools using

this method would need to develop a way of accounting for the nutrients

in side dishes and milk. Finally, it would not enable schools to track

changes in children's food habits and would provide no incentive for

introducing new foods or modifying cooking methods.

Nutrition analysis is significantly weakened without a weighting

component. It is only through weighting that schools can develop more

healthful and nutritious meals and track improvements in children's

diets. The Department believes approved software packages will

alleviate many of the concerns of local personnel, especially as they

become more familiar with the software applications over time.

Therefore, this final rule incorporates, at Sec. 210.10(i)(5) for the

NSLP and Sec. 220.8(e)(5) for the SBP, the proposed requirements that

NuMenus and Assisted NuMenus be based upon a weighted analysis of the

foods produced.

Menu Adjustments Under Assisted NuMenus

The Department also wishes to address a proposed provision of

Assisted NuMenus which was widely misunderstood. This provision

(Sec. 210.10(l)(4) and Sec. 220.8(k)(4) of the proposed rule) required

a reanalysis of the Assisted NuMenus cycles when adjustments to menu

offerings are needed to reflect changes in student preferences and

participation or increased emphasis on meeting nutrition standards. It

is important that the school food authority be alert to shifts in

participation trends, as well as such factors as modifications to USDA

commodities or food purchased in the market, since these changes can

affect the degree to which menus continue to meet the nutrition

standards. This information must be conveyed to whomever prepares the

menus so that the recipes and menus can be reanalyzed and appropriate

adjustments made. In accepting a set of menus from an outside source,

the school food authority needs to confirm that there is a ready

mechanism for making the necessary adjustments to the menu cycle and

its accompanying segments. The Department emphasizes, however, that

such adjustments do not have to be made routinely to reflect minor

changes in participation or preference. On the contrary, the Department

believes that adjustments would be necessary only when the school

experiences significant fluctuations in student consumption patterns or

as the school continues to improve meal quality by changing its menus.

Therefore, this proposed provision is retained at Sec. 210.10(j)(4) and

Sec. 220.8(f)(4).

Finally, the Department recognizes that Assisted NuMenus may not be

suitable for all schools. However, for those schools whose

circumstances lend themselves to this menu planning option, the

Department will be providing technical assistance materials. In

accordance with section 9(f)(2)(C)(i)(II) of the NSLA (as amended by

section 106(b) of Pub. L. 103-448), the Department is developing a

cycle menu with accompanying recipes, food product specifications and

recommended food preparation methods. These guidance materials will

enable local schools to prepare meals which meet the nutrition

standards.

Combining Analysis of Breakfasts and Lunches

The June 10, 1994, proposal would have required school food

authorities to conduct separate analyses of lunches and breakfasts.

This requirement was based on the fact that breakfasts, as documented

by the SNDA study, are generally in compliance with the Dietary

Guidelines. A combined analysis, therefore, might tend to disguise

situations in which no significant improvements were being made to the

nutritional quality of lunches. Moreover, since the number of children

participating in the breakfast program is a fraction of the children

eating school lunches, a straight average of the two meal services

would not provide an accurate reflection of the food service for the

majority of children.

The Department received nearly 900 comments on this proposed

provision. Over two-thirds came from school food service professionals,

although more than 130 of the comments were from the general public.

All but three comments recommended combining the analyses of breakfast

and lunch, generally on the grounds that the Dietary Guidelines are

intended to apply to total consumption rather than to individual meals.

The Department agrees that it can be useful to measure the

compliance of the entire food service. Therefore, the final rule is

being revised to give schools the option of conducting a combined

analysis provided the meal services are properly weighted for

participation (Sec. 210.10(i)(5)(iii) and Sec. 220.8(e)(5)(iii)). The

Department notes, however, that even though the software will handle

the additional calculations, menu planners may find that this method

does not have any significant practical effect on their ability to

achieve the required nutrition standards, since breakfast represents a

relatively small portion of the overall meal service.

Reimbursable Meals Under NuMenus and Assisted NuMenus

Currently, school food authorities receive reimbursement for each

meal served to children that meets the meal pattern requirements for

lunch or breakfast. Basically, the minimum quantity of all the required

components (meat/meat alternate, bread/bread alternate, two different

fruits/vegetables and fluid milk) must be offered, and a minimum number

of items (at least three if the school employs ``offer-versus-serve''

(OVS)) must be selected. In order to determine if the meal chosen by

the child is reimbursable, the cashier observes, at the point of

service, if the proper number of components has been taken.

Under NuMenus and Assisted NuMenus, however, schools will have the

flexibility to vary the amounts and quantities of individual foods as

needed to achieve compliance with the nutrition standards.

Nevertheless, it will [[Page 31198]] still be important that each

reimbursable meal include a minimum number of food items for the

following reasons. First, there needs to be a reasonable standard for

Federal reimbursement. Secondly, a reimbursable meal must be easily

recognizable at the point of service so that it can be counted

accurately. Finally, it is preferable that children receive a minimum

amount of nutrients from every meal rather than experiencing large

fluctuations from day to day.

Therefore, the Department proposed that under NuMenus and Assisted

NuMenus, a lunch would be reimbursable if at least three menu items

(one must be an entree and one fluid milk) were offered, and, if the

school does not participate in OVS, all menu items are taken. If the

school participates in OVS, a lunch would be reimbursable if at least

three menu items were offered (again, one must be an entree and one

must be fluid milk), and at least two menu items (including the entree)

were selected. For the SBP, at least three menu items had to be offered

and at least two taken under OVS. The entree requirement was not

extended to the SBP. The proposal ensured that children would receive

appropriate daily levels of nutrition and that cashiers would continue

to be able to determine easily if the meal selected by the child was

reimbursable.

The Department received nearly 1,300 comments stating that a

minimum of two items for OVS was not adequate. About 700 of these

commenters were concerned that allowing children to take as few as two

items would not support nutrition education efforts or provide

sufficient calories. Further, they felt that only two items under OVS

would undermine efforts to have meals comply with the Dietary

Guidelines.

The Department agrees that the number of items which children may

decline should be limited. Therefore, this final rule revises the

proposed definition of a reimbursable lunch when schools using NuMenus

or Assisted NuMenus also participate in OVS. For lunches in these

situations (at Sec. 210.10(i)(2)(ii)), the child must select at least

two items (the entree and one other) and may decline no more than two

items. Thus, when a school offers a meal with five or more items, the

student may decline only two items and must take three or more. Under

the proposal, the student would have been required to accept only two

items and could have declined three or four items in a five or six item

meal. The entree, of course, could not have been declined. For the SBP,

the current requirement that the child may decline only one item is

retained at Sec. 220.8(e)(2)(ii). Consequently, the amount of food

taken by the child under NuMenus and Assisted NuMenus will at least

equal, and in many cases will exceed, the amount taken under the old

meal pattern requirements.

The Department does wish to address what appears to be a

misunderstanding on the part of some commenters regarding the term

``menu item'' as it is used in NuMenus and Assisted NuMenus. Under a

meal pattern system, food items are generally viewed as satisfying one

or more components. For example, a helping of spaghetti and meatballs

will supply the meat/meat alternate and grain/bread components of the

meal as well as one of the fruit/vegetable components. The same holds

true for many popular foods, such as lasagna, pizza or chef salads. If

schools use a meal pattern menu system and participate in OVS, the

child would have to take the spaghetti and meatballs, since

collectively that dish includes three components, but could decline the

second vegetable/fruit item or the milk.

Under a system of nutrient analysis, however, spaghetti and

meatballs is a single menu item (in this case, an entree) which

contributes specific nutrients. If, therefore, the school offered this

dish along with two other items (e.g., milk and fruit), the meal would

actually provide more nutrients than under OVS in schools using a meal

pattern, since the child would have to select the entree and at least

one other item. If the school offered this dish along with three other

items (e.g., green beans, fruit and milk), the child would also receive

a more substantial meal than under the meal pattern since s/he could

decline only two of the remaining three items.

The proposed requirement (at Sec. 210.10(e)(4)(ii)) that the child

select the entree stemmed from the Department's concern that the school

lunches children consume provide an adequate amount of calories and

other essential nutrients. Traditionally, the most significant

nutrition contribution in a school lunch has come from the entree.

Therefore, this provision was proposed as a way of ensuring that

children participating in OVS receive the most nutritious lunch

possible.

The Department recognized that the proposal deviated from current

requirements which do not stipulate any particular item that the child

must select. Therefore, the Department specifically solicited comments

on this requirement. Only about 30 commenters supported the

requirement, while 644 commenters expressed some objection. Some

commenters were concerned that requiring students to select an entree

would lead to reduced participation since students would have less

opportunity for personal choice. Others thought that fewer fruits and

vegetables would be selected. Finally there was concern that requiring

selection of the entree would increase meal service costs.

The Department appreciates the concerns expressed by the commenters

but continues to believe that it is necessary to require that the

entree be selected for lunch in order for the meal to be reimbursable.

Because the meal is built around the entree, that dish will generally

make the most significant calorie contribution to the meal and also

will be likelier than other items to provide a variety of nutrients.

The Department also notes that schools have considerable flexibility in

determining what the entree will be. For example, a school could serve

a chef's salad or a vegetable and fruit platter as an entree. The

Department emphasizes that the final provisions on NuMenus and Assisted

NuMenus require the child to take the entree and at least one other

item. Therefore, the child may actually receive more food than would

necessarily be the case under the former meal pattern. Finally, data

from the SNDA study shows that children overwhelmingly select entrees

under the current system. Therefore, the Department does not believe

that requiring children to select the entree will result in greater

plate waste. For these reasons, this final regulation, at

Sec. 210.10(i)(2)(ii), requires that one of the items selected by the

child under OVS be an entree.

While the Department believes that the OVS requirement for an

entree is necessary to ensure that children receive proper nutrition

from school meals, it is concerned about the possibility of plate

waste. Consequently, the Department requests that school food service

personnel submit comments based on their operational experience with

OVS under NuMenus and Assisted NuMenus. If operational experience with

OVS as required by this rule indicates an increase in plate waste, the

Department will consider future rulemaking, including issuance of a

proposed rule, to change the regulatory requirement.

Complexity/Inflexibility of NuMenus/Assisted NuMenus

Over 2,200 commenters maintained that NuMenus and Assisted NuMenus

were too complex, and more than 3,400 believed these menu planning

systems would be inflexible. The Department notes that, since NuMenus

is not bound [[Page 31199]] by the component and quantity requirements

of a food-based menu planning system, it gives schools more flexibility

to vary their menus and to introduce different foods than they have

under a meal pattern. The Department does agree that some additional

effort will be necessary when NuMenus is initially implemented. As

schools acquire more experience with the software and learn to take

full advantage of NuMenus, this alternative can actually reduce the

amount of time spent on menu planning.

Many commenters were specifically concerned about what they viewed

as the inflexibility of Assisted NuMenus. Most of these commenters

believed that Assisted NuMenus would impose outside controls over local

menus, would be unresponsive to local preferences and would result in

limited food choices which, in turn, would lead to reduced

participation. The Department agrees that Assisted NuMenus is less

flexible than NuMenus because the basic analysis is not performed on

site, but that Assisted NuMenus still provides a better method to

determine compliance with the Dietary Guidelines and other nutrition

standards and provides more flexibility than the current meal pattern

approach. This option was proposed in response to concerns that some

schools may not have the resources to conduct NuMenus themselves. The

Department notes, however, that schools electing to use Assisted

NuMenus will still be able to control the kinds and variety of foods

they serve. To account for local preferences or the purchase of local

foods, schools will provide the appropriate information or

specifications to whomever conducts the analysis. Subsequent

modifications also would need to be referred to the analyst for

adjustments. Thus, under Assisted NuMenus, local schools will continue

to exercise latitude over the meals they serve and will not be subject

to the analyst's decisions unless they choose to be.

Food-Based Menu Systems

A total of 363 commenters addressed one or more aspects of the

January 27, 1995, proposed rule, either at the public hearing or in

writing. About 200 comments were submitted by State and local food

service professionals, and 79 were from other school personnel not

connected with the food service. Fifty representatives of the food

industry commented as did 26 nutritionists and food advocates or

groups. Of these, 95 commenters generally approved of the proposed

food-based system, while 78 generally disagreed. The remainder tended

to approve of some aspects of the rule and disapprove of others. The

chief areas addressed by commenters were the quantities specified for

each of the four components, the age/grade groupings, and the

monitoring requirements.

Before discussing these issues, however, the Department wishes to

address a widespread misperception that the State agency would decide

which menu planning alternative (food-based or nutrient analysis) would

be used by local schools. Section 9(f)(2)(D) of the NSLA, as amended by

section 106(b) of Pub. L. 103-448, specifically makes the choice of a

menu planning system a local school option. While the State agency can

(and, in the Department's view, should) provide advice on which system

might prove to be most effective for an individual school food

authority, the final decision rests with the local school food

authority.

Component and Quantity Requirements

Eleven commenters gave general approval to the proposed meal

patterns, while 13 disagreed completely with the proposal. For the most

part, however, commenters discussed specific issues without entirely

approving or disapproving. The most prevalent concern was that

increased servings of vegetables/fruits and grains/breads would lead to

increased plate waste (69 comments) and cost (115 comments). With

respect to the meat/meat alternate component, 58 comments recommended

reducing the quantity but were not specific. Another 64 commenters

recommended specific reductions, and about the same number recommended

crediting various alternatives, including yogurt. The Department

received 142 comments on the proposed vegetables/fruits portions. Forty

of these were concerned with increased plate waste and costs. The

remainder generally raised technical questions or proposed revisions to

the quantity requirements. The Department received 232 comments on the

proposed grains/breads requirements. About half of these recommended

revisions to the quantity requirements (80 comments) or raised

crediting issues (47 comments). The remaining comments were concerned

with a variety of technical issues, the most important of which was the

proposed provision to allow one serving of dessert per day to be

credited toward meeting the grains/breads requirement. Finally, 73

comments addressed the milk component. Most of these comments (52)

recommended that yogurt be credited as meeting the milk requirement.

The Department appreciates commenters' recommendations for

adjustments to the proposed quantity requirements. The Department did

not propose to reduce the quantity requirement for the meat/meat

alternate component because, while it is true that this component will

generally be higher in fat than the other components, the meat/meat

alternate contributes a substantial portion of the calories and protein

in the meal. If this component were to be reduced, the quantities of

fruits/vegetables and grains/breads would need to be significantly

greater than was proposed in order to replace the calories lost from

this source. The proposed food-based menu planning alternative was

designed to enable schools to comply with all of the meal standards,

including the requirement that lunches provide one-third of the

calories needed by growing children. Therefore, the Department does not

believe it is feasible to reduce the meat/meat alternate component

without a correspondingly large increase in the other components. The

Department continues to recommend, however, that schools use lower-fat

protein sources and employ preparation techniques that will minimize

the levels of fat and saturated fat.

As noted above, the Department proposed to increase the quantities

of fruits/ vegetables and grains/bread to increase dietary fiber and

calories from low-fat or nonfat sources. The Department appreciates

commenters' concerns about possible increases in food costs. However,

it would not be possible to reduce the servings of these components and

still have a meal pattern that meets the Dietary Guidelines. Moreover,

in designing the proposed patterns, the Department considered the cost

ramifications. As discussed elsewhere in this preamble, the Department

compared the costs currently incurred by school food authorities with

the costs of items in the meal pattern and concluded that the current

cost-per-component-serving for food can be maintained through the

selection of lower-cost grains/breads. For a complete discussion of the

nutrition basis and cost implications of the proposed revisions to the

meal pattern, readers should refer to the preamble and regulatory

assessment for the proposed rule at 60 FR 5514.

The Department also shares commenters' concerns about plate waste.

However, as noted elsewhere in this preamble, the Department is

undertaking a major initiative to educate children and their families

about good nutrition and to provide school food authorities with

recipes and techniques [[Page 31200]] that can make more healthful

meals that are also appealing to children. The Department continues to

believe that there is no inherent reason why fruits/vegetables and

grains/breads should not be appealing if they are properly prepared and

presented.

In the January 27th proposed rule, the Department sought to include

the crediting of one dessert per day to provide schools with

flexibility in meeting the enhanced grains/breads requirement in the

proposed rule. The Department appreciates commenters' concerns about

possible sugar content of desserts. The Department emphasizes, however,

that if desserts are served as part of the reimbursable meal service,

all of the elements in these food items will be analyzed by the State

agency as part of its review of the school's compliance with the

nutrition standards. To assist schools in preparing desserts that make

a balanced contribution to the meal, the Department has developed

modified dessert recipes which reduce fat content and increase the use

of whole grain products. Such popular desserts as orange rice pudding,

whole grain cookies and fruit-filled items will provide many of the

children's other needs, such as dietary fiber, without overemphasizing

sugar and fat. For the above reasons, the Department is adopting in

this final rule, at Sec. 210.10(k) and Sec. 220.8(g), the proposed

food-based menu planning meal patterns.

Age/Grade Groupings

One concern cited by commenters to the January 27th proposed rule

was the difference between the age/grade groups for NuMenus and those

for the food-based menu planning systems. In the June 10, 1994,

proposal, the Department advocated establishing minimum levels of

calories and nutrients for four age groups: (1) Ages 3-6, (2) ages 7-

10, (3) ages 11-13 and (4) ages 14-17. These groupings were designed to

take into account the ages at which children tend to need greater

amounts of nutrients and calories to ensure proper growth. The specific

levels represented weighted averages of the levels of nutrients and

calories needed by children in those groups with the greatest increase

coming at approximately age 11. Under a system of nutrient analysis,

such as NuMenus or Assisted NuMenus, the computer software enables the

menu planner to calculate the required nutrient levels easily and to

adjust the menu and portion sizes to reflect the nutrient profile of

the children when more than one age group is being served.

With a food-based menu planning system, however, the components and

portion sizes are prescribed for menu planners to ensure that

sufficient food is provided to meet the children's calorie and nutrient

needs. Consequently, this system, which is not as flexible as nutrient

analysis, does not allow for the tailoring that is possible under a

system of nutrient analysis. In recognition of this limitation, the

Department proposed to establish minimum portion sizes (accompanied by

the appropriate levels of calories and nutrients for these grade

levels) for two grade groupings in the January 27, 1995, rulemaking:

Kindergarten-grade 6 and grades 7-12 for the NSLP while retaining the

current single grade group of kindergarten-grade 12 for the SBP. In

addition, optional levels were established in the NSLP for

kindergarten-grade 3 and in the SBP for grades 7-12. These groups were

selected because they reflect the age breakouts commonly used for

individual schools and because they recognize the need for significant

increases in nutrients and calories for adolescents.

The Department received over 500 comments on the age/grade

groupings proposed in the June 10, 1994, rule, the vast majority of

which were from school food service personnel. While a few commenters

agreed with the four age groupings for nutrient analysis, most raised

questions or concerns. About a third of the commenters asserted that

the groupings were too complicated and too costly and would require too

much paperwork. Some commenters were concerned that the groupings did

not reflect the actual age/grade groups in some schools, and some

maintained that these groupings would not work in schools with

kindergarten-grade 12. A small number recommended that a single generic

standard be established for all ages/grades. Over half of the

commenters, again mainly representing school food service, addressed

miscellaneous concerns about applying these groupings in different

local situations and recommended modifications such as applying one age

category based upon the majority of students or establishing standards

for pre-school, elementary, middle and high schools.

The Department received 53 comments addressing the age/grade

groupings of the January 27, 1995, proposed rule for the food-based

menu planning system. Three commenters agreed with the proposed

groupings, while eight disagreed without raising specific issues. Over

forty commenters suggested changes to the groupings because of concerns

about the applicability of the two groupings to their particular

situations.

The Department does recognize that no set of age/grade groupings

will apply precisely to every school's structure, nor will they satisfy

the nutrition and calorie needs of every child. Moreover, it recognizes

that not all systems will be able to tailor meals to the optimum.

Therefore, the final rule adopts the same grade groups for both NuMenus

and Assisted NuMenus as were proposed for the food-based menu planning

alternative as the minimum requirement. In addition, the regulation

also provides a number of alternatives for age/grade groupings for the

nutrient analysis alternatives. Schools may use the age levels provided

in the January 27, 1995, proposed regulation (ages 3-6, 7-10, 11-13 and

14 and above) as an option or may develop their own age/grade

groupings. The Department continues to believe it is important to

recognize the age related nutrient needs of children and provides the

option of these more age appropriate levels for schools that are able

to implement them. The software will readily allow for these

variations, and FCS will be providing guidance on how to develop

individual groupings and levels. The age/grade groupings for NuMenus

and Assisted NuMenus may be found at Sec. 210.10(c) and (i)(1) and at

Sec. 220.8(b) and (k)(1).

The January 27, 1995, proposal was structured to take into account

that, in many cases, school food authorities using the food-based menu

planning alternative would not have access to computer technology and

would, therefore, need a simpler pattern. Consequently, as noted above,

the Department proposed two grade groupings for both the nutrition

standards and portion sizes which essentially overlap the four age

groupings of the June 10, 1994, proposal. Since these groupings

generally reflect the grade structures of most schools, the Department

considers that school food authorities using these patterns should

experience little, if any, difficulty in complying with the

requirements. In fact, the grade groups in this rule conform more

closely to the standard structures of elementary and secondary schools

than did the groupings in the existing patterns (kindergarten-grade 3

and grades 4-12). Finally, the Department notes that school food

authorities may always increase the portion sizes to accommodate older

children, but to require schools to do so would introduce an

unreasonable complexity into the system. For these reasons, the age/

grade groupings of the January 27th proposal are adopted without change

at [[Page 31201]] Sec. 210.10(d) and (k)(2) and at Sec. 220.08(c) and

(g)(2).

Monitoring Compliance With Nutrition Standards

In both proposals, the Department proposed modifications to the

review requirements so that compliance with the updated nutrition

standards would be monitored properly. Currently, State agencies

monitor compliance with meal pattern components and quantities on a

per-meal basis through observation of the meal service. If there is

reason to believe that a school is consistently offering meals which

are deficient, State agencies may examine menus and production records

to ensure that all components were available, and that sufficient

quantities were offered.

Under both the June 10, 1994, and the January 27, 1995, proposals,

reimbursable meals offered over a school week must collectively meet

the updated nutrition standards, including the Dietary Guidelines, as

well as provide the minimum number of food items required for a

reimbursable meal. Therefore, both proposals would have continued to

require reviewers to determine that, on the day of review, the minimum

number of menu items (NuMenus or Assisted NuMenus) or components (the

food-based alternative) are offered and accepted. Meals lacking the

required items or components would be disallowed. To determine

compliance with the overall nutrition standards, the Department

proposed to implement a review mechanism outside of the administrative

review procedure set forth in Sec. 210.18(g).

In the June 10, 1994, proposal, the Department sought to establish

a separate nutrition analysis review requirement to supplement the

administrative review requirements. Under this requirement (proposed at

Sec. 210.19(a)(1)), the State agency would review the school's nutrient

analysis to determine that NuMenus or Assisted NuMenus are being

properly conducted and that the meals provided do, in fact, comply with

the program's nutrition standards. Under food-based systems, however,

there generally would be no local nutrition analysis records to review.

Therefore, the January 27, 1995, proposal would have required the State

agency to conduct a nutrient analysis of one week's meals using the

school's production records. That proposal (again Sec. 210.19(a)(1))

also permitted State agencies to develop an alternate review

methodology to nutrient analysis, subject to Departmental approval, or

to examine local records of nutrient analysis should there be any.

Nutrient analysis is needed because, even with a food-based system that

incorporates enhanced meal pattern requirements, there is no guarantee

that meals will comply with the Dietary Guidelines. Food selection,

preparation techniques and student choices will have a significant

effect. Periodic nutrient analysis, even if only at five-year

intervals, will be the only way of gauging the school's compliance with

the nutrition standards or of identifying ways to improve performance.

Both proposals stressed the Department's commitment to technical

assistance and corrective action in non-compliance situations as an

alternative to taking fiscal action. In both proposals, State agencies

would require corrective action when meals collectively fail to meet

the nutrition standards. However, reimbursement for those meals would

not be disallowed. School food authorities would be required to develop

an acceptable corrective action plan in collaboration with the State

agency. For school food authorities making good faith efforts to comply

with the terms of the corrective action plan, the State agency would

provide technical assistance and training to help them meet the

nutrition standards. However, if the school food authority had not been

acting in good faith to meet the terms of the corrective action plan

and refused to renegotiate the plan, the State agency would be required

to determine if a disallowance of reimbursement was warranted.

Over 800 commenters addressed the monitoring requirements in the

June 10, 1994, proposal. Most of these were parents/students (350),

school food service personnel (316) and teachers and other school

officials (101). In general, commenters agreed with the proposed

compliance procedure; 140 commenters expressed overall approval, while

only 36 completely disapproved. Commenters were concerned, however,

about the provision requiring school food authorities to develop

corrective action plans with the concurrence of the State agency and

the provision requiring disallowance of funds if the school food

authority does not act in good faith to achieve corrective action. For

the most part, these concerns were technical in nature and involved

such issues as defining ``intentional'' failure to take corrective

action or requesting a methodology for calculating a fiscal penalty.

Some commenters believed there should be no fiscal penalties, while

others believed the State agency should have greater authority to take

fiscal action for non-compliance.

The Department received 148 comments on the proposed monitoring

requirement for school food authorities electing to use food-based menu

planning systems. The principal concern was with the proposed

requirement that State agencies conduct a nutrient analysis of one

week's food service using the school's menus and supporting production

records. Thirty commenters opposed the provision, while most of the

others raised technical concerns or suggested alternate methodologies

such as analyzing only menus.

The Department proposed to monitor compliance with the nutrition

standards outside of the normal CRE process because of the belief that

State agencies should have maximum flexibility to provide training and

technical assistance to their schools. Therefore, both proposals

stressed corrective action over automatic disallowances (except when

the State agency observes that meals are not complete) because the

Department does not wish to penalize school food authorities which are

making good faith efforts to move toward compliance.

The Department believes that State agencies are in the best

position to determine what corrective actions must be taken, what the

time frames for completion will be and whether or not the school food

authority is making a good faith effort to comply. Because

circumstances will vary from one situation to another, the Department

does not believe rigid criteria can adequately determine a ``good

faith'' effort, although progress toward compliance with the nutrition

standards would certainly be one major indicator. Moreover, the

Department does not envision that disallowances would occur routinely.

The timing and amount of any disallowances are entirely at the State

agency's discretion, but the Department intends that they would be

imposed only when the school is not taking the agreed upon corrective

action and is not making progress toward compliance.

Finally, the Department proposed to have State agencies conduct a

nutrient analysis as part of the review of schools using food-based

menu systems because there is no other way to demonstrate that these

school food authorities are actually meeting the nutrition standards,

including the Dietary Guidelines. As noted elsewhere in this preamble,

section 9(f) of the NSLA now requires that all schools comply with the

Dietary Guidelines, and the Department's proposed meal patterns will

allow schools using a food-based menu planning system to achieve these

goals. However, there is a wide variation in the foods schools select

to meet the component requirements. Consequently,

[[Page 31202]] without nutrient analysis of the foods produced, it is

impossible to document that the meals do, in fact, meet the Dietary

Guidelines and the standards for RDA and calories.

By law (42 U.S.C. 1758(f)(2)(D)), schools electing to use a food-

based menu planning system are not required to conduct such an

analysis. Consequently, unlike schools using NuMenus or Assisted

NuMenus, these schools will have no records of nutrient analysis for

the State agency to review. Therefore, the State agency must conduct

such an analysis to determine compliance. Moreover, the State agency

must analyze the school's production records in conjunction with the

menus. As discussed elsewhere in this preamble, a weighted analysis

which takes into account the actual production trends is the only

reliable method for determining the quality of the meal service. Simply

averaging the items offered without regard to their acceptance would

provide results which have little, if any, correlation to the overall

meal service.

Finally, as with reviews of schools using the nutrient based

system, the Department is emphasizing technical assistance and

corrective action rather than fiscal action. While State agencies would

continue to disallow meals which are incomplete at the point of

service, the school's failure to meet the overall nutrition standards

would not automatically result in disallowances. Instead, the State

agency would work with schools to develop a corrective action plan and

would monitor the school's progress toward the nutrition standards.

Fiscal sanctions would need to be imposed only if the school does not

make a good faith effort to work toward improvement. For these reasons,

this final rule adopts the monitoring requirements at Sec. 210.19(a)(1)

as proposed in the June 10, 1994, and January 27, 1995, rules.

Streamlining: Paperwork Reduction/Nonprofit Status

As part of the Department's continuing efforts to streamline the

administration of Child Nutrition Programs, the June 10, 1994, proposal

also offered State agencies and local school food authorities

flexibility and reduced administrative burden in three important areas.

The first provision would have extended the CRE cycle from 4 to 5

years. This change, which would result in a 20 percent decrease in

annual reviews, would provide State agencies with additional

flexibility and resources to enable them to work with schools to

improve meals. The second provision would have eliminated the current

requirement for a specific daily edit check on meal counts for those

school food authorities that have been found through CRE reviews to

have accurate meal counts and claims. These school food authorities

would have the option of establishing their own systems of internal

controls without the Department's specified edits. Finally, the

Department's proposal would have removed the requirement in

Sec. 210.15(b)(4) that distinct records be maintained to document the

nonprofit status of the school food service. The Department determined

that it was not necessary for the program regulations to mandate this

recordkeeping requirement because these records (e.g., receipts,

expenditures, etc.) are the accounts which any enterprise needs to

maintain in the normal course of conducting business. These kinds of

records are a necessary part of a school food authority's own

accountability system and, in many cases, are required by State laws.

It is important to emphasize that the school food authority would still

have to be operated on a nonprofit basis; the proposed amendment would

have only eliminated the requirements for documentation of nonprofit

status. It is still incumbent upon the school food authority to

demonstrate that the school food service is being operated on a

nonprofit basis if a question arises during an audit or other oversight

activity.

Slightly over 500 of the more than 14,000 commenters discussed the

change in the administrative review cycle. Of these, 430 agreed with

the extension to 5 years, although 23 commenters stated that the new

cycle would not make much difference to the State agencies and a few

opposed the change altogether. The Department continues to believe that

the proposed reduction in the number of annual reviews will not

compromise program accountability, but will enable State agencies to

increase their commitments to training and technical assistance so

necessary to the efficient implementation of the nutrition standards

and is, therefore, adopting this amendment to Sec. 210.18(c) as

proposed. State agencies are, of course, encouraged to exceed the

regulatory requirements when resources permit, and they will continue

to be required to conduct follow-up reviews of school food authorities

which are found to exceed error thresholds on the initial reviews.

Slightly fewer than 500 commenters addressed the proposal to

eliminate specific edit checks for school food authorities found to

have accurate counting and claiming systems. Essentially, commenters

tended to assert that this change would not really reduce paperwork or

that it could impose an additional burden on State agencies to approve

alternative systems. Several commenters recommended other areas such as

elimination of verification requirements of free and reduced-price

applications or the process of determining ``severe need'' status in

the SBP.

When the Department proposed to require edit checks several years

ago, many commenters stated that school food authorities should have

the flexibility of devising their own systems of internal controls.

However, at that time, the Department believed that school food

authorities must, at a minimum, compare their meal counts, by type, to

the number of eligible children in each category multiplied by an

attendance factor. A few years later, in the regulation implementing

CRE, the Department broadened State agencies' authority to authorize

alternative systems of edits. The Department now believes that States

and local school food authorities have had several years of experience

with internal controls and are in the best position to modify these

systems to meet their own needs. Therefore, this final rule adopts the

amendment to Sec. 210.8 (a)(2) and (a)(3) as proposed.

Only 150 commenters addressed the issue of documentation of

nonprofit status. Most of these were from those in school food service.

While over 30 commenters agreed with the proposed provision, about 100

commenters stated that it was not a real reduction in paperwork at the

local level. Some commenters felt ``real'' reduction in paperwork could

be accomplished through elimination of the verification procedures, on-

site reviews and other requirements. However, the Department continues

to believe that this provision will reduce the paperwork burden on

schools because they will no longer need to maintain records using

Federal specifications; records would be maintained in the manner

preferred by the school district or required by State laws. Therefore,

the proposed amendments to Sec. 210.14(c) and Sec. 210.15(b) are

adopted as final without change. It is not possible for the Department

to implement other changes suggested by commenters at this time since

they were not a part of the original proposal. The Department will,

however, retain them for future consideration.

[[Page 31203]]

Related Topics of Concern

Competitive Foods

Approximately 640 commenters addressed the sale of foods in

competition with school meals. Nearly 400 commenters recommended that

all foods sold in the cafeteria, including a la carte items, be

included in the analysis to determine whether or not the food service

meets the Dietary Guidelines. More than 500 commenters recommended that

the Department go even further and regulate the food items that may be

sold in vending machines throughout the school or ban vending machines

altogether.

The Department appreciates and shares many of these concerns.

Currently, the program regulations (Sec. 210.11(a) and Sec. 220.12(a))

prohibit the sale of certain foods of minimal nutritional value in the

food service area between the start of school and the last lunch period

of the day. Other foods may be sold in competition with reimbursable

meals provided that the proceeds inure to the benefit of the schools or

of student organizations. These items would include foods sold a la

carte.

The Department has no authority to regulate the sale of foods

outside the food service area. The current regulations governing the

sale of competitive foods result from a Federal court's ruling in a

lawsuit filed against the Department by a soft drink manufacturers'

association. In that ruling, the court found that the Department had no

authority to regulate the sale of competitive foods beyond the food

service area. The court also limited the Department's jurisdiction over

the food service area after the meal service has ended. Therefore, the

Department cannot address the issue of vending machines elsewhere in

the school in this rulemaking. The Department notes, however, that

State agencies and local school food authorities have complete

authority to impose more stringent limitations on the sale of

competitive foods. This authority is underscored in Pub. L. 103-448,

which directs the Department to provide States with a copy of the

current regulations dealing with competitive foods and to provide

States with model language prohibiting the sale of foods of minimal

nutritional value anywhere on elementary school grounds between the

start of the school day and the last lunch period. The Department

intends to provide these materials to States for distribution to school

food authorities in the near future.

The Department shares commenters' concerns about a la carte items.

The Department notes that these items are generally not intended to be

part of a complete, balanced meal. A la carte sales can range from a

second helping of a food item prepared as part of a reimbursable meal

to items from a separate salad bar. Consequently, an analysis which

includes a la carte items would shift the focus to individual foods,

something which the Dietary Guidelines do not intend. Moreover, in the

case of prepackaged items, the school would need to establish a

separate system of records to track their selection and would need to

identify their nutrient content. The Department believes, therefore,

that requiring schools to apply the principles of the Dietary

Guidelines to these items would greatly increase the complexity and

burden of nutrient analysis.

Fortification

The preamble to the June 10, 1994, proposal solicited comments

regarding the use of fortified foods in school meal programs. The

Department was particularly interested in whether there are practical

ways to control excessive use of fortification, the degree to which

this should be a concern, and the potential impact on the character of

school meals.

No regulatory proposals were made on this subject because the

Department was unaware of any practical method for controlling the use

of highly fortified foods. It was our understanding at the time of the

proposal that it was virtually impossible to distinguish those

nutrients that have been added to a product from those that are

naturally occurring, especially for food items with numerous

ingredients. Nevertheless, the Department was committed to the

principle that meals be comprised of a variety of conventional foods,

as recommended in the Dietary Guidelines, rather than ones containing

formulated fortified foods.

More than 2,300 commenters responded to our request for comments,

some of whom recommended adoption of the fortification policy developed

by USDA and employed in the USDA nutrient standard pilots in the mid-

1980's. This method, which is also a part of pilot projects currently

operating in California, permits nutrients which are added to foods to

be counted toward the nutrient standards only if they were added in

accord with one of the following criteria: (1) a standard of identity

or standard for enrichment issued by the Food and Drug Administration

(FDA), (2) a USDA purchase specification for a donated commodity, (3) a

standard for an Alternative Food for Meals under Appendix A of Parts

210 and 220, excluding formulated grain/fruit products, and (4) in a

breakfast cereal available on the commercial market.

The Department had seriously considered adopting this policy as a

part of the June 10, 1994, proposal. However, following discussions

with the FDA, the food industry, the nutrient data laboratory of the

USDA's Agriculture Research Service and local school food service

personnel, the Department concluded that it could not be implemented at

the local level for several reasons.

First, there is no simple way to distinguish between the amount of

synthetic nutrients added to a food and the level which occurs

naturally because FDA does not require such distinctions to be made on

food labels. Moreover, the Department has found that FDA standards of

identity are not a particularly helpful source of information because

they are only available for a limited number of products (under 40).

Standards do not exist, for example, for many fruit juices commonly

fortified and sold on the market. It would be difficult and costly to

require the food industry to identify the primary source of nutrients

on the label because such a requirement would exceed the requirements

of the Nutrition Labeling and Education Act. It should be noted that

further inquiries to the California State agency concerning this policy

confirmed that it had not been successfully implemented in the pilot

sites.

Some commenters also suggested that USDA use the fortification

standards established by FDA. These standards (21 CFR 101.14) only

apply to those instances in which a health claim is being made in

connection with the use of a particular food product. Therefore, such

standards would have little applicability to the school meal programs.

Since commenters did not provide new information that could be used to

fashion a practical method for regulating the use of fortified products

in the school meal programs, this final regulation contains no new

regulatory proscriptions. The Department does wish to stress its

continued commitment to the principle that school meals should be

comprised of a variety of foods which provide naturally occurring

nutrients rather than formulated foods which have been artificially

fortified. The training and technical assistance the Department plans

to provide on implementing the Dietary Guidelines will stress the

importance of serving a variety of foods as well as the potential

dangers of serving highly fortified foods.

[[Page 31204]]

The Department also wishes to reiterate that the nutrition

standards for school meals include standards for calories as well as

for key nutrients. Moreover, the nutrient analysis alternatives

continues to require that a minimum of three food items, one of which

must be an entree, be available as part of every reimbursable meal.

Finally, the Department notes that engineered foods generally cost more

than foods that are not artificially fortified. All these factors are

disincentives to the use of heavily fortified foods and should serve to

minimize their use. The Department will be monitoring the

implementation of the nutrient analysis menu planning alternatives and

will continue to consider this issue should a feasible method of

monitoring fortification levels become available in the future.

Alternate Foods for Meals

The regulations governing Alternate Foods for Meals for the school

lunch program are found in Appendix A of 7 CFR Part 210. This Appendix

sets forth the requirements for enriched macaroni products with

fortified protein, cheese alternate products and vegetable protein

products. These regulations were developed to define and clarify the

use of new products in the Child Nutrition Programs. Advances in food

processing have allowed food producers to engineer ingredients into

fabricated or formulated foods, usually in answer to a specific need or

problem. Cheese alternate products, for example, were developed to

supplement the natural cheese supply at a time when the availability of

natural cheese had decreased and the price had increased. The alternate

foods regulations were designed to maintain nutritional quality in

school meals while providing schools with flexibility in menu planning,

convenience in food preparation and an economic advantage. Because the

Department proposed no changes to these regulations, the current

requirements for alternative foods in Appendix A will remain in effect.

However, the Department recognizes that more recent developments in

food processing may necessitate revisions and that some products not

currently allowable may provide schools with additional low-fat

options. Therefore, the Department is considering proposing changes to

these regulations in the near future. Prior to making any decisions,

however, the Department will be consulting with an expert panel, as

appropriate, to develop options.

Lunch Periods

In the June 10, 1994, proposal, the Department indicated its

concern that schools have an adequate number of lunch periods to

accommodate all of their students and that the lunch periods provide

sufficient time for children to eat the entire meal. Therefore, the

Department proposed a recommendation at Sec. 210.10(i) that school food

authorities make every effort to provide adequate meal service times

and periods to ensure that children can effectively participate in the

school lunch program.

Nine hundred and forty-five commenters addressed this provision;

over 850 were from school food service personnel, teachers, other

school officials, parents and teachers. Overwhelmingly, they asserted

that lunch periods need to be longer, especially if additional foods

are served, and nearly 600 maintained that the Department should

regulate this aspect of the food service. The Department appreciates

these concerns. However, as noted in the preamble to the proposed rule,

the Department has no authority to regulate meal times. Nevertheless,

we intend to continue working with our partners in the Department of

Education to solicit support in the education community to ensure that

educators and school administrators understand the importance of giving

students adequate time to eat. The Department also emphasizes that this

is an issue that can be dealt with effectively at the local level, and

the Department strongly encourages school food service directors to

work with other school officials. Therefore, this final rule adopts the

recommendation included in the proposed rule at Sec. 210.10(f).

Nutrition Disclosure

The June 10, 1994, proposal included a provision at Sec. 210.10(n)

encouraging school authorities to make a public disclosure of the

nutrients contained in their meals. The Department intended that such a

provision would promote an increased awareness on the part of students

and their families of the nutrients in their meals, enhance the ability

of children and their parents to make healthful food choices and

increase support for school meals through public recognition of

improved meal quality. However, in recognition of the differing needs

of school food authorities, the Department did not mandate disclosure,

nor was a particular method of making the disclosure prescribed,

although the proposal did indicate that the information should be

readily available to children and their families.

The Department received over 260 comments on this issue, over 200

of them from school food service personnel. Approximately 190

commenters agreed that nutrition disclosure should be optional, and

only 15 believed the Department should require disclosure. The

remaining comments addressed narrower issues, such as suggesting that

information be sent home with elementary students. Because the

Department did not propose mandatory disclosure, the Department is

adopting the provision as it was proposed at Sec. 210.10(h) and

Sec. 220.8(l). The Department appreciates the overall support for

voluntary disclosure. However, section 9(f)(1)(A) of the NSLA, as

amended by section 106(b) of Pub. L. 103-448, 42 U.S.C. 1758(f)(1),

includes a provision requiring schools to make a public disclosure of

the nutrient content of their meals. The Department is assessing

various methods of disclosure and intends to issue a proposed rule on

this subject at a later time.

Compliance Over a School Week

The June 10, 1994, proposal would have required nutrient analysis

of the reimbursable meals served over the course of a school week, as

defined in proposed Sec. 210.2 as a period of three to seven days. The

normal school week would, of course, be five consecutive days. To

accommodate situations when school is not in session for a complete

week, the Department intended that weeks in which school lunches are

offered fewer than three times would be combined with either the

previous or the following week. The Department's proposal for weekly

compliance and the proposed definition of ``school week'' were repeated

in the January 27, 1995, rule, in keeping with a provision of Pub. L.

103-448 (section 106(a), 42 U.S.C. 1758(a)(1)(A)(ii)) requiring that,

at a minimum, compliance with the nutrition standards be based on the

weekly average of the nutrient content of school lunches. This proposal

was intended to provide schools with a manageable time period in which

to vary menus and make meaningful calculations and adjustments. The

range of three to seven days was intended to provide school food

authorities with flexibility in planning menus when the school is not

in session for an entire week.

The Department received over 600 comments on this provision in the

June 10, 1994, proposal. Nearly 400 of the comments were from school

food service personnel, and approximately 130 were from parents and

students. [[Page 31205]] Over half of the comments agreed with weekly

analyses. Those who disagreed generally suggested a different length of

time, although some believed there should be no specific time period at

all, since the Dietary Guidelines have none. Generally commenters

recommended that planning and analysis be done on a daily, bi-weekly or

monthly basis, although some commenters recommended averaging over the

length of the menu cycle or even the entire school year. Approximately

50 commenters were also concerned that requiring weekly compliance

could result in less variety in meals overall, since schools might tend

simply to repeat a qualifying menu every week.

The Department received 25 comments on this provision as applied to

the proposed food-based menu planning system in the January 27, 1995,

rulemaking. The largest number of these came from persons in school

food service. Generally, these commenters recommended that the school

week be defined strictly as five days or raised technical concerns

about shorter periods.

The Department appreciates commenters' suggestions for changing the

length of the planning cycle. The Department continues to believe,

however, that a school week represents the optimum length of time for

determining nutrient content, as long as flexibility is built in to

accommodate days when schools are not in session. A school week allows

enough time for schools to vary menus but still ensures that nutrients

are reasonably concentrated. Moreover, since the law now mandates

compliance with the nutrition standards over the school week, the

Department is adopting this provision as proposed at Sec. 210.2 and

Sec. 220.2(w-1).

Operational Obstacles

Over 9,000 commenters addressed perceived operational obstacles to

implementation of the June 10, 1994, proposal. Nearly 7,000 commenters

were from those in school food service, and more than 100 others were

teachers or school officials. Commenters were chiefly concerned about

the potential for increased administrative and paperwork burdens, the

possibility that schools would drop out of the program because of the

complexity of the requirements, the need for additional staff to

conduct nutrient analysis and the difficulty in balancing good

nutrition with student acceptance.

The Department has given due consideration to these concerns. The

Department believes, however, that the complexities of NuMenus and

Assisted NuMenus are not as great as commenters have represented them

to be. While it is true that nutrition analysis will measure nutrients

and calories more precisely than in the past, this analysis will be

done entirely by computer. Once the information has been entered, there

is little additional burden on the school. Much the same is true of

menu adjustments. Creating the initial menu may require more time than

is currently the case with the meal pattern. However, once the recipe

and product data has been entered and the menu cycle has been adjusted

to comply with the nutrition standards, wholesale changes with

resulting new analysis should not generally be needed. The Department

also notes that the computer software approved for NuMenus will have

the capability of searching for food sources of high nutrient density

when a particular nutrient must be provided.

The Department also believes that the amount of paperwork resulting

from NuMenus will not be as great as commenters have stated. The

nutrient analysis, itself, will remain in the computer unless a report

is generated by the school or at the request of the State agency. The

Department also wishes to emphasize that the analysis need not be

performed individually by every school. If the school food authority

wishes, the analysis can be performed centrally. For these reasons, it

will not be necessary for schools' food authorities to add additional

personnel to conduct NuMenus.

Also, the Department does not consider appealing meals as

incompatible with good nutrition. The Department has undertaken Team

Nutrition--a comprehensive initiative to help meal planners produce

meals that are appealing as well as nutritious and to foster an

awareness on the part of children that good meals do taste good. The

Department is promoting an array of technical assistance programs among

State and local school food agencies. One prominent example is our

partnership with the American Culinary Federation and others to develop

recipes and provide information on how to make the meal presentation

more appealing. In addition, the Department believes that the

Children's Nutrition Campaign, which concentrates on bringing the

message of good nutrition to children and their parents, will make

nutritious foods more popular. Thus, the Department anticipates that

these efforts to assist and educate will lead to increased

participation.

Cost Implications

Over 5,500 commenters, many from school food service personnel,

were concerned that the changes set forth in the June 10, 1994,

proposal would significantly increase the cost of their food

operations. These concerns were based on the perception that they would

need to purchase more expensive lower-fat foods and employ costlier

preparation techniques along with the expense of acquiring computer

equipment and software for NuMenus. Approximately 145 commenters raised

cost concerns about the January 27, 1995, proposal because of the

increased quantity requirements for fruits/vegetables and grains/

breads.

The Department extensively studied the cost implications of both

proposals as part of the Regulatory Assessments published with the

proposals. The analysis published on June 10, 1994, found that the

nutrient requirements of NuMenus can be met at about the current cost

of food in the National School Lunch Program. Moreover, the Department

does not anticipate the need for significant changes in meal

preparation practices that would affect the cost of meals. While

schools without computer resources might experience one-time

acquisition costs, these costs must be considered in light of the

length of time the schools will be using that equipment. Moreover,

software to conduct NuMenus can have other food service applications as

well, thereby providing some administrative efficiencies. For a

complete discussion of the cost analysis, readers should refer to the

June 10, 1994, issue of the Federal Register (59 FR 30250).

In the cost/benefit analysis for the January 27, 1995, proposed

rule, the Department noted that its school lunch model did experience

slight increases in costs for leaner meat and for fruits/vegetables.

These increases, however, can be effectively offset by selecting less

expensive items from the grains/breads component. In fact, the analysis

found that the nutrient requirements of the food-based menu planning

system can be met at about the current cost of food in the program.

Again, readers wishing a complete discussion of costs should refer to

the January 27, 1995, issue of the Federal Register (60 FR 5525-26).

General Comments on Meal Content

The Department received over 4,200 comments on various issues

related to the content of school meals. More than 2,500 were from

persons in school food service, while nearly 800 were from students or

their families and over 250 were from the medical, public health and

food advocacy communities. Some of these comments were general

observations on the quality of existing meal services or reflected

concerns [[Page 31206]] about plate waste. For the most part, however,

commenters discussed increasing or decreasing specific food components.

Approximately 1,000 commenters recommended increasing the amounts of

fruits and vegetables, and another 500 wanted more breads and grain

products. On the other hand, approximately 400 commenters recommended

using either lower fat meats or meat substitutes such as soy, while

over 1,200 opposed the milk requirement.

The Department appreciates commenters' concerns. The Department

agrees that it is important for children to receive plenty of fruits

and vegetables as well as grain products. Although there are no

component or quantity requirements under NuMenus and Assisted NuMenus,

the Department believes that menu planners will use more of these food

groups since they are prime sources of low-fat, nutrient-dense foods

needed to meet the recommendations of the Dietary Guidelines. The

Department's January 27, 1995, proposal did, in fact, significantly

increase the quantity requirements for both fruits/vegetables and

grains/breads. In addition, the Department believes that the nutrition

standards established for school meals will ensure that a wide variety

and ample amount of these items will be served.

With respect to meats, the Department reiterates that it is

important to obtain essential nutrients from a variety of foods. The

Department agrees that foods, particularly those high in fat, must be

eaten in moderation, but the Department does not share the view that

any given foods are necessarily ``good'' or ``bad.'' For this reason,

the January 27, 1995, proposal retained the quantity requirements for

meats/meat alternates currently in effect, and the Department does not

plan to limit or eliminate items from this food group in any future

rulemakings. It is also important to note that meat is a significant

source of iron, a nutrient that was not adequately met for some

participants in the school meal programs reviewed in the 1993 SNDA

study. As one final note, the Department is aware that yogurt can be a

useful meat alternate, and the Department is considering a future

action which would allow meal planners to substitute yogurt for meat.

The Department also appreciates commenters' suggestions to

eliminate the whole milk requirement or permit alternatives to milk.

The requirement that schools offer fluid milk as part of a reimbursable

lunch is statutory (42 U.S.C. 1758(a)(2)(A)(i)). The Department notes,

however, that section 107 of Pub. L. 103-448 did modify this

requirement. In the past, schools were required to offer fluid whole

milk and fluid unflavored low-fat milk. Schools now are required to

offer a variety of fluid milk consistent with children's preferences in

the prior year. Schools also may cease offering any variety which

constituted less than one percent of the total milk consumed in the

prior year (42 U.S.C 1758(a)(2)(A)(ii)). Therefore, while schools must

still make milk available as part of all reimbursable lunches, they

will have somewhat more flexibility than in the past to reflect their

children's changing preferences. This provision is found at

Sec. 210.10(l)(1).

NuMenus and Assisted NuMenus for Meals Served Under the Child and Adult

Care Food Program and the Summer Food Service Program

A few commenters recommended that schools using NuMenus or Assisted

NuMenus should be allowed to use these systems when the school is

providing meals under the Child and Adult Care Food Program (CACFP) or

the Summer Food Service Program (SFSP). Otherwise, the school food

service could be placed in the position of following multiple sets of

meal requirements. The Department agrees that schools should be able to

use the same menu planning system for all meals it prepares and serves.

Moreover, once the analysis has been properly completed and appropriate

adjustments made, meals served under NuMenus or Assisted NuMenus will

generally be more healthful and nutritious than meals planned and

prepared under the old meal patterns. Therefore, although NuMenus and

Assisted NuMenus has not yet been proposed for the CACFP or the SFSP,

the Department is providing in this final rule (Sec. 210.10 (i)(12) and

(j)(7); Sec. 220.8 (e)(12) and (f)(7)) that schools, with State agency

approval, may use, in addition to the food-based menu planning systems,

nutrient analysis for all of the meal programs receiving USDA

reimbursement that they operate. These exceptions are consistent with

the current requirements in the regulations governing the CACFP and the

SFSP. The Department emphasizes, however, that schools would still be

required to follow the existing meal patterns for snacks and for meals

served to children under two years of age.

Implementation Schedules

The June 10, 1994, proposal would have required all schools to

comply with the Dietary Guidelines and nutrition standards established

by that proposal by School Year 1998. Over 750 commenters agreed with

the proposed implementation schedule, although 40 commenters believed

implementation should be sooner. Over 200 commenters, however, believed

that School Year 1998 would be too early for full implementation or

requested that waivers be authorized for schools unable to comply.

Subsequently, Congress amended the NSLA to require that school meals

comply with the Dietary Guidelines by School Year 1996/97, unless a

waiver not to exceed two years is authorized by the State agency. This

provision (42 U.S.C. 1758 (f)(2)) affirms the importance of having

school meals that comply with the best scientific research regarding

nutrition, and the Department appreciates Congressional support on this

issue. Therefore, this final regulation, at Sec. 210.10(o) and

Sec. 220.8(m), will require implementation by School Year 1996,

although State agencies may authorize schools to delay implementation

on a case by case basis until a later date, but not later than School

Year 1998/1999. This provision of the law will accommodate schools that

have training or resource needs that require delayed implementation.

However, State agencies and school food authorities may implement the

provisions in this rule, such as the streamlining/paperwork reduction

provisions including the extension of the CRE review period, prior to

that date. Nonetheless, while the revised menu planning alternatives

may be implemented early, they must be implemented in their entirety.

List of Subjects

7 CFR Part 210

Children, Commodity School Program, Food assistance programs,

Grants programs-social programs, National School Lunch Program,

Nutrition, Reporting and recordkeeping requirements, Surplus

agricultural commodities.

7 CFR Part 220

Children, Food assistance programs, Grant programs-social programs,

Nutrition, Reporting and recordkeeping requirements, School Breakfast

Program.

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

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

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

follows:

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

2. In Sec. 210.2: [[Page 31207]]

a. the definition of ``Food component'' is revised;

b. the definition of ``Food item'' is revised;

c. the definition of ``Lunch'' is revised;

d. a new definition of ``Menu item'' is added;

e. a new definition of ``Nutrient Standard Menu Planning/Assisted

Nutrient Standard Menu Planning'' is added;

f. the definition of ``Reimbursement'' is amended by adding the

words ``or Sec. 210.10a, whichever is applicable,'' after

``Sec. 210.10''; and

g. a new definition of ``School Week'' is added.

The revisions and additions read as follows:

Sec. 210.2 Definitions.

* * * * *

Food component means one of the four food groups which compose the

reimbursable school lunch, i.e., meat or meat alternate, milk, grains/

breads and vegetables/fruits for the purposes of Sec. 210.10(k) or one

of the four food groups which compose the reimbursable school lunch,

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

vegetable/fruit under Sec. 210.10a.

Food item means one of the five required foods that compose the

reimbursable school lunch, i.e., meat or meat alternate, milk, grains/

breads, and two (2) servings of vegetables, fruits, or a combination of

both for the purposes of Sec. 210.10(k) or one of the five required

foods that compose the reimbursable school lunch, i.e., meat or meat

alternate, milk, bread or bread alternate, and two (2) servings of

vegetables, fruits, or a combination of both for the purposes of

Sec. 210.10a.

* * * * *

Lunch means a meal which meets the nutrition standards and the

appropriate nutrient and calorie levels designated in Sec. 210.10. In

addition, if applicable, a lunch shall meet the requirements by age/

grade groupings in Sec. 210.10(k)(2) or the school lunch pattern for

specified age/grade groups of children as designated in Sec. 210.10a.

Menu item means, under Nutrient Standard Menu Planning or Assisted

Nutrient Standard Menu Planning, any single food or combination of

foods. All menu items or foods offered as part of the reimbursable meal

may be considered as contributing towards meeting the nutrition

standards provided in Sec. 210.10, except for those foods that are

considered as foods of minimal nutritional value as provided for in

Sec. 210.11(a)(2) which are not offered as part of a menu item in a

reimbursable meal. For the purposes of a reimbursable lunch, a minimum

of three menu items must be offered, one of which must be an entree (a

combination of foods or a single food item that is offered as the main

course) and one of which must be fluid milk. Under offer versus serve,

a student shall select, at a minimum, an entree and one other menu

item. If more than three menu items are offered, the student may

decline up to two menu items; however, the entree cannot be declined.

* * * * *

Nutrient Standard Menu Planning/Assisted Nutrient Standard Menu

Planning mean ways to develop menus based on the analysis for nutrients

in the menu items and foods offered over a school week to determine if

specific levels for a set of key nutrients and calories were met. Such

analysis is based on averages weighted in accordance with the criteria

in Sec. 210.10(i)(5). Such analysis is normally done by a school or a

school food authority. However, for the purposes of Assisted Nutrient

Standard Menu Planning, menu planning and analysis are completed by

other entities and shall incorporate the production quantities needed

to accommodate the specific service requirements of a particular school

or school food authority.

* * * * *

School week means the period of time used to determine compliance

with the nutrition standards and the appropriate calorie and nutrient

levels in Sec. 210.10. Further, if applicable, school week is the basis

for conducting Nutrient Standard Menu Planning or Assisted Nutrient

Standard Menu Planning for lunches as provided in Sec. 210.10(i) and

Sec. 210.10(j). The period shall be a normal school week of five

consecutive days; however, to accommodate shortened weeks resulting

from holidays and other scheduling needs, the period shall be a minimum

of three consecutive days and a maximum of seven consecutive days.

Weeks in which school lunches are offered less than three times shall

be combined with either the previous or the coming week.

* * * * *

Sec. 210.4 [Amended]

3. In Sec. 210.4, paragraph (b)(3) introductory text is amended by

removing the words ``Sec. 210.10(j)(1) of this part'' and adding in

their place the words ``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1),

whichever is applicable''.

Sec. 210.7 [Amended]

4. In Sec. 210.7:

a. paragraph (c)(1)(v) is amended by removing the reference to

``Sec. 210.10(b) of this part'' and adding in its place the words

``Sec. 210.10(a)(2) or Sec. 210.10a(b), whichever is applicable,''; and

b. paragraph (d) is amended by removing the reference to

``Sec. 210.10(j)(1) of this part'' and adding in its place the words

``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is applicable''.

5. In Sec. 210.8:

a. the third sentence of paragraph (a)(2) is removed and new

paragraphs (a)(2)(i) and (a)(2)(ii) are added at the end;

b. Paragraph (a)(3) is revised;

c. the first sentence of paragraph (a)(4) is revised;

d. the first sentence of paragraph (b)(2)(i) is amended by removing

the reference to ``paragraph (a)(2)'' and adding in its place a

reference to ``paragraph (a)(3)'' and by adding at the end of the

sentence the words ``or the internal controls used by schools in

accordance with paragraph (a)(2)(i) of this section.'' The revisions

and additions read as follows:

Sec. 210.8 Claims for reimbursement.

(a) Internal controls. * * *

(2) School food authority claims review process. * * *

(i) Any school food authority that was found by its most recent

administrative review conducted in accordance with Sec. 210.18, to have

no meal counting and claiming violations may:

(A) Develop internal control procedures that ensure accurate meal

counts. The school food authority shall submit any internal controls

developed in accordance with this paragraph to the State agency for

approval and, in the absence of specific disapproval from the State

agency, shall implement such internal controls. The State agency shall

establish procedures to promptly notify school food authorities of any

modifications needed to their proposed internal controls or of denial

of unacceptable submissions. If the State agency disapproves the

proposed internal controls of any school food authority, it reserves

the right to require the school food authority to comply with the

provisions of paragraph (a)(3) of this section; or

(B) Comply with the requirements of paragraph (a)(3) of this

section.

(ii) Any school food authority that was identified in the most

recent administrative review conducted in accordance with Sec. 210.18,

or in any other oversight activity, as having meal counting and

claiming violations shall comply with the requirements in paragraph

(a)(3) of this section.

(3) Edit checks. (i) The following procedure shall be followed for

school [[Page 31208]] food authorities identified in paragraph

(a)(2)(ii) of this section, by other school food authorities at State

agency option, or, at their own option, by school food authorities

identified in paragraph (a)(2)(i) of this section: the school food

authority shall compare each school's daily counts of free, reduced

price and paid lunches against the product of the number of children in

that school currently eligible for free, reduced price and paid

lunches, respectively, times an attendance factor.

(ii) School food authorities that are identified in subsequent

administrative reviews conducted in accordance with Sec. 210.18 as not

having meal counting and claiming violations and that are correctly

complying with the procedures in paragraph (a)(3)(i) of this section

have the option of developing internal controls in accordance with

paragraph (a)(2)(i) of this section.

(4) Follow-up activity. The school food authority shall promptly

follow-up through phone contact, on-site visits or other means when the

internal controls used by schools in accordance with paragraph

(a)(2)(i) of this section or the claims review process used by schools

in accordance with paragraphs (a)(2)(ii) and (a)(3) of this section

suggest the likelihood of lunch count problems. * * *

* * * * *

Sec. 210.9 [Amended]

6. In Sec. 210.9:

a. paragraph (b)(5) is amended by adding the words ``or

Sec. 210.10a, whichever is applicable'' at the end of the paragraph;

b. paragraph (c) introductory text is amended by removing the

reference to ``Sec. 210.10(j)(1) of this part'' and adding in its place

the words ``Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is

applicable''; and

c. paragraph (c)(1) is amended by adding the words ``or

Sec. 210.10a, whichever is applicable'' after the reference to

``Sec. 210.10.''

7. Section 210.10 is redesignated as Sec. 210.10a.

8. A new Sec. 210.10 is added to read as follows:

Sec. 210.10 Nutrition standards for lunches and menu planning methods.

(a) General requirements for school lunches.

(1) In order to qualify for reimbursement, all lunches served to

children age 2 and older, as offered by participating schools, shall,

at a minimum, meet the nutrition standards provided in paragraph (b) of

this section and the appropriate level of calories and nutrients

provided for in either paragraph (c) or paragraph (i)(1) of this

section for nutrient standard menu planning and assisted nutrient

standard menu planning or in paragraph (d) of this section for food-

based menu planning, whichever is applicable. Compliance with the

nutrition standards and the nutrient and calorie levels shall be

determined by averaging lunches offered over a school week. Except as

otherwise provided herein, school food authorities shall ensure that

sufficient quantities of foods are planned and produced to meet, at a

minimum, the nutrition standards in paragraph (b) of this section, the

appropriate nutrient and calorie levels in paragraphs (c), (d), or

(i)(1) of this section, whichever is applicable, and to either contain

all the required food items in at least the amounts indicated in

paragraph (k) of this section or to supply sufficient quantities of

menu items and foods as provided in paragraphs (i) or (j) of this

section.

(2) School food authorities shall ensure that each lunch is priced

as a unit and that lunches are planned and produced on the basis of

participation trends, with the objective of providing one reimbursable

lunch per child per day. Any excess lunches that are produced may be

offered, but shall not be claimed for general or special cash

assistance provided under Sec. 210.4. The component requirements for

meal supplements served under the Child and Adult Care Food Program

authorized under part 225 of this chapter shall also apply to meal

supplements served by eligible school food authorities in afterschool

care programs under the NSLP.

(3) Production and menu records shall be maintained to demonstrate

that the required number of food components and food items or menu

items are offered on a given day. Production records shall include

sufficient information to evaluate the menu's contribution to the

requirements on nutrition standards in paragraph (b) of this section

and the appropriate levels of nutrients and calories in paragraphs (c),

(d) or (i)(1) of this section, whichever is applicable. If applicable,

schools or school food authorities shall maintain nutritional analysis

records to demonstrate that lunches meet, when averaged over each

school week, the nutrition standards provided in paragraph (b) of this

section and the nutrient and calorie levels for the appropriate age or

grade group as provided for in paragraphs (c) or (i)(1) of this

section, whichever is applicable.

(b) Nutrition standards for reimbursable lunches. School food

authorities shall ensure that participating schools provide nutritious

and well-balanced meals to children. In addition, for children ages 2

and above meals shall be provided based on the nutrition standards

provided in this section.

(1) Provision of one-third of the Recommended Dietary Allowances

(RDA) of protein, calcium, iron, vitamin A and vitamin C to the

applicable age or grade groups in accordance with the appropriate

levels provided in paragraph (c), (d) or (i)(1) of this section,

whichever is applicable;

(2) Provision of the lunchtime energy allowances for children based

on the appropriate age or grade groups in accordance with the levels

provided in paragraphs (c), (d) or (i)(1) of this section, whichever is

applicable;

(3) The applicable recommendations of the 1990 Dietary Guidelines

for Americans which are:

(i) Eat a variety of foods;

(ii) Limit total fat to 30 percent of calories;

(iii) Limit saturated fat to less than 10 percent of calories;

(iv) Choose a diet low in cholesterol;

(v) Choose a diet with plenty of vegetables, fruits, and grain

products; and

(vi) Use salt and sodium in moderation.

(4) The following measures of compliance with the applicable

recommendations of the 1990 Dietary Guidelines for Americans:

(i) A limit on the percent of calories from total fat to 30 percent

based on the actual number of calories offered;

(ii) A limit on the percent of calories from saturated fat to less

than 10 percent based on the actual number of calories offered;

(iii) A reduction of the levels of sodium and cholesterol; and

(iv) An increase in the level of dietary fiber.

(5) School food authorities have three alternatives for menu

planning in order to meet the requirements of this paragraph and the

appropriate nutrient and calorie levels in paragraphs (c), (d) or

(i)(1) of this section, whichever is applicable: nutrient standard menu

planning as provided for in paragraph (i) of this section, assisted

nutrient standard menu planning as provided for in paragraph (j) of

this section, or food-based menu planning as provided for in paragraph

(k) of this section. The actual minimum calorie levels vary depending

upon the alternative followed due to differences in age/grade groupings

of each alternative.

(c) Nutrient levels for school lunches/nutrient analysis. (1) For

the purposes of nutrient standard and assisted nutrient

[[Page 31209]] standard menu planning, as provided for in paragraphs

(i) and (j), respectively, of this section, schools shall, at a

minimum, provide calorie and nutrient levels for school lunches

(offered over a school week) for the required grade groups specified in

the chart following:

Minimum Requirements for Nutrient Levels for School Lunches/Nutrient

Analysis (School Week Averages)

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

Minimum requirements Optional

Nutrients and energy ---------------------------------------------------

allowances Preschool Grades K-6 Grades 7-12 Grades K-3

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

Energy allowance/

calories........... 517 664 825 633

Total fat (as a

percent of actual

total food energy). (\1\) (\1\) (\1\) (\1\)

Saturated fat (as a

percent of actual

total food energy). (\2\) (\2\) (\2\) (\2\)

RDA for protein..... 7 10 16 9

RDA for calcium (mg) 267 286 400 267

RDA for iron (mg)... 3.3 3.5 4.5 3.3

RDA for vitamin A

(RE)............... 150 224 300 200

RDA for vitamin C

(mg)............... 14 15 18 15

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

\1\ Not to exceed 30 percent over a school week.

\2\ Less than 10 percent over a school week.

(2) At their option, schools may provide for the calorie and

nutrient levels for school lunches (offered over a school week) for the

age groups specified in the following chart or may develop their own

age groups and their corresponding levels in accordance with paragraph

(i)(1) of this section.

Optional Minimum Nutrient Levels for School Lunches/Nutrient Analysis

(School Week Averages)

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

Nutrients and energy Ages 14 and

allowances Ages 3-6 Ages 7-10 Ages 11-13 above

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

Energy allowance/

calories........... 558 667 783 846

Total fat (as a

percent of actual

total food energy). (\1\) (\1\) (\1\) (\1\)

Saturated fat (as a

percent of actual

total food energy). (\2\) (\2\) (\2\) (\2\)

RDA for protein (g). 7.3 9.3 15.0 16.7

RDA for calcium (mg) 267 267 400 400

RDA for iron (mg)... 3.3 3.3 4.5 4.5

RDA for vitamin A

(RE)............... 158 233 300 300

RDA for vitamin C

(mg)............... 14.6 15.0 16.7 19.2

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

\1\ Not to exceed 30 percent over a school week.

\2\ Less than 10 percent over a school week.

(d) Minimum nutrient levels for school lunches/food-based menu

planning. For the purposes of food-based menu planning, as provided for

in paragraph (k) of this section, the following chart provides the

minimum levels, by grade group, for calorie and nutrient levels for

school lunches offered over a school week:

Minimum Nutrient Levels for School Lunches/Food-Based Menu Planning

(School Week Averages)

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

Grades K-3

Preschool Grades K-6 Grades 7-12 option

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

Energy allowances

(Calories)......... 517 664 825 633

Total fat (as a

percentage of

actual total food

energ

This text is long and has been trimmed here. Open the source document for the complete record.