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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A95-14292

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 13, 1995
- **Citation:** 60 FR 31188

## Text

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 Departme

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-14292. Public record. Not legal advice.