National School Lunch Program Means General of the Department

SUBCHAPTER A—CHILD NUTRITION PROGRAMS

PART 210—NATIONAL SCHOOL APPENDIX A TO PART 210—ALTERNATE FOODS FOR MEALS LUNCH PROGRAM APPENDIX B TO PART 210—CATEGORIES OF FOODS OF MINIMAL NUTRITIONAL VALUE Subpart A—General APPENDIX C TO PART 210—CHILD NUTRITION LABELING PROGRAM Sec. 210.1 General purpose and scope. AUTHORITY: 42 U.S.C. 1751–1760, 1779. 210.2 Definitions. SOURCE: 53 FR 29147, Aug. 2, 1988, unless 210.3 Administration. otherwise noted.

Subpart B—Reimbursement Process for Subpart A—General States and School Food Authorities 210.4 Cash and donated food assistance to § 210.1 General purpose and scope. States. (a) Purpose of the program. Section 2 210.5 Payment process to States. of the National School Lunch Act (42 210.6 Use of Federal funds. U.S.C. 1751), states: ‘‘It is declared to 210.7 Reimbursement for school food au- be the policy of Congress, as a measure thorities. of national security, to safeguard the 210.8 Claims for reimbursement. health and well-being of the Nation’s Subpart C—Requirements for School Food children and to encourage the domestic Authority Participation consumption of nutritious agricultural commodities and other food, by assist- 210.9 Agreement with State agency. ing the States, through grants-in-aid 210.10 Nutrition standards and menu plan- and other means, in providing an ade- ning approaches for lunches and require- quate supply of food and other facili- ments for afterschool snacks. ties for the establishment, mainte- 210.11 Competitive food services. nance, operation, and expansion of non- 210.12 Student, parent and community involvement. profit school lunch programs.’’ Pursu- 210.13 Facilities management. ant to this act, the Department pro- 210.14 Resource management. vides States with general and special 210.15 Reporting and recordkeeping. cash assistance and donations of foods 210.16 Food service management companies. acquired by the Department to be used to assist schools in serving nutritious Subpart D—Requirements for State Agency lunches to children each school day. In Participation furtherance of Program objectives, participating schools shall serve lunches 210.17 Matching Federal funds. 210.18 Administrative reviews. that are nutritionally adequate, as set 210.19 Additional responsibilities. forth in these regulations, and shall to 210.20 Reporting and recordkeeping. the extent practicable, ensure that participating children gain a full under- Subpart E—State Agency and School Food standing of the relationship between Authority Responsibilities proper eating and good health. (b) Scope of the regulations. This part 210.21 Procurement. sets forth the requirements for partici- 210.22 Audits. pation in the National School Lunch 210.23 Other responsibilities. and Commodity School Programs. It Subpart F—Additional Provisions specifies Program responsibilities of State and local officials in the areas of 210.24 Withholding payments. program administration, preparation 210.25 Suspension, termination and grant and service of nutritious lunches, pay- closeout procedures. ment of funds, use of program funds, 210.26 Penalties. program monitoring, and reporting and 210.27 Educational prohibitions. 210.28 Pilot project exemptions. recordkeeping requirements. 210.29 Management evaluations. 210.30 Regional office addresses. § 210.2 Definitions. 210.31 OMB control numbers. For the purpose of this part:

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7 CFR part 3015 means the Uniform Applicable credits shall have the Federal Assistance Regulations pub- meaning established in Office of Man- lished by the Department to implement agement and Budget Circulars A–87, certain policies applicable to all De- C(4) and A–122, Attachment A, A(5), re- partment programs. The applicable spectively. For availability of OMB cir- provisions deal with competition for culars referenced in this definition see discretionary grants and cooperative 5 CFR 1310.3. agreements, costs requiring prior ap- Attendance factor means a percentage proval, acknowledgement of Depart- developed no less than once each school ment support in publications and year which accounts for the difference audiovisuals produced under Depart- between enrollment and attendance. ment programs, intergovernmental re- The attendance factor may be devel- view of Department programs under oped by the school food authority, sub- Executive Order 12372, and certain mis- ject to State agency approval, or may cellaneous Department requirements. be developed by the State agency. In 7 CFR part 3016 means the Depart- the absence of a local or State attend- ment’s Uniform Administrative Re- ance factor, the school food authority quirements for Grants and Cooperative shall use an attendance factor devel- Agreements to State and Local Gov- oped by FNS. When taking the attend- ernments. 7 CFR part 3016 covers re- ance factor into consideration, school quirements for awards and subawards food authorities shall assume that all to State and local governmental orga- children eligible for free and reduced nizations under Department programs. price lunches attend school at the same 7 CFR part 3018 means the Depart- rate as the general school population. ment’s Common Rule regarding Gov- Average Daily Participation means the ernmentwide New Restrictions on Lob- average number of children, by eligi- bying. Part 3018 implements the re- bility category, participating in the Program each operating day. These quirements established by section 319 numbers are obtained by dividing (a) of the 1990 Appropriations Act for the the total number of free lunches Department of Interior and Related claimed during a reporting period by Agencies (Pub. L. 101–121). the number of operating days in the 7 CFR part 3019 means the Depart- same period; (b) the total number of re- ment’s Uniform Administrative Re- duced price lunches claimed during a quirements for Grants and Agreements reporting period by the number of oper- with Institutions of Higher Education, ating days in the same period; and (c) Hospitals, and Other Non-Profit Orga- the total number of paid lunches nizations. 7 CFR part 3019 covers re- claimed during a reporting period by quirements for awards and subawards the number of operating days in the to nongovernmental, nonprofit organi- same period. zations under Department programs. Child means—(a) a student of high 7 CFR part 3052 means the Depart- school grade or under as determined by ment’s regulations implementing OMB the State educational agency, who is Circular A–133, ‘‘Audits of State, Local enrolled in an educational unit of high Governments, and Non-Profit Organi- school grade or under as described in zations.’’ (For availability of OMB Cir- paragraphs (a) and (b) of the definition culars referenced in this definition, see of ‘‘School,’’ including students who 5 CFR 1310.3.) are mentally or physically disabled as Act means the National School Lunch defined by the State and who are par- Act, as amended. ticipating in a school program estab- Afterschool care program means a pro- lished for the mentally or physically gram providing organized child care disabled; or (b) a person under 21 chron- services to enrolled school-age children ological years of age who is enrolled in afterschool hours for the purpose of an institution or center as described in care and supervision of children. Those paragraph (c) of the definition of programs shall be distinct from any ex- ‘‘School;’’ or (c) For purposes of reim- tracurricular programs organized pri- bursement for meal supplements served marily for scholastic, cultural or ath- in afterschool care programs, an indi- letic purposes. vidual enrolled in an afterschool care

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program operated by an eligible school able meals planned under a food-based who is 12 years of age or under, or in menu planning approach. The four food the case of children of migrant workers components are: meat/meat alternate; and children with disabilities, not more grains/breads; fruits/vegetables; and than 15 years of age. milk. CND means the Child Nutrition Divi- Food item means one of the five foods sion of the Food and Nutrition Service offered in lunches under a food-based of the Department. menu planning approach: meat/meat Commodity School Program means the alternate; grains/breads; two servings Program under which participating of fruits/vegetables; and milk. schools operate a nonprofit lunch pro- Food service management company gram in accordance with this part and means a commercial enterprise or a receive donated food assistance in lieu nonprofit organization which is or may of general cash assistance. Schools par- be contracted with by the school food ticipating in the Commodity School authority to manage any aspect of the Program shall also receive special cash school food service. and donated food assistance in accord- Free lunch means a lunch served ance with § 210.4(c). under the Program to a child from a Contractor means a commercial en- household eligible for such benefits terprise, public or nonprofit private or- under 7 CFR part 245 and for which nei- ganization or individual that enters ther the child nor any member of the into a contract with a school food au- household pays or is required to work. thority. Local educational agency means a pub- Cost reimbursable contract means a lic board of education or other public contract that provides for payment of or private nonprofit authority legally incurred costs to the extent prescribed constituted within a State for either in the contract, with or without a fixed administrative control or direction of, fee. or to perform a service function for, Days means calendar days unless oth- public or private nonprofit elementary erwise specified. schools or secondary schools in a city, Department means the United States county, township, school district, or Department of Agriculture. other political subdivision of a State, Distributing agency means a State or for a combination of school districts agency which enters into an agreement or counties that is recognized in a with the Department for the distribu- State as an administrative agency for tion to schools of donated foods pursu- its public or private nonprofit elemen- ant to part 250 of this chapter. tary schools or secondary schools. The Donated foods means food commod- term also includes any other public or ities donated by the Department for private nonprofit institution or agency use in nonprofit lunch programs. having administrative control and di- Fiscal year means a period of 12 cal- rection of a public or private nonprofit endar months beginning October 1 of elementary school or secondary school, any year and ending with September 30 including residential child care institu- of the following year. tions, Bureau of Indian Affairs schools, Fixed fee means an agreed upon and educational service agencies and amount that is fixed at the inception of consortia of those agencies, as well as the contract. In a cost reimbursable the State educational agency in a contract, the fixed fee includes the State or territory in which the State contractor’s direct and indirect admin- educational agency is the sole edu- istrative costs and profit allocable to cational agency for all public or pri- the contract. vate nonprofit schools. FNS means the Food and Nutrition Lunch means a meal service that Service, United States Department of meets the applicable nutrition stand- Agriculture. ards and portion sizes in § 210.10 for FNSRO means the appropriate Re- lunches. gional Office of the Food and Nutrition Menu item means, under Nutrient Service of the Department. Standard Menu Planning or Assisted Food component means one of the four Nutrient Standard Menu Planning, any food groups which comprise reimburs- single food or combination of foods. All

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menu items or foods offered as part of efit of school children is retained and the reimbursable meal may be consid- used only for the operation or improve- ered as contributing towards meeting ment of the nonprofit school food serv- the nutrition standards provided in ice. § 210.10, except for those foods that are Nutrient Standard Menu Planning/As- considered as foods of minimal nutri- sisted Nutrient Standard Menu Planning tional value as provided for in means ways to develop lunch menus § 210.11(a)(2) which are not offered as based on the analysis for nutrients in part of a menu item in a reimbursable the menu items and foods offered over meal. For the purposes of a reimburs- a school week to determine if specific able lunch, a minimum of three menu levels for a set of key nutrients and items must be offered, one of which calories were met in accordance with must be an entree (a combination of § 210.10(i)(5). However, for the purposes foods or a single food item that is of- of Assisted Nutrient Standard Menu fered as the main course) and one of Planning, lunch menu planning and which must be fluid milk. Under offer analysis are completed by other enti- versus serve, a student shall select, at ties and must incorporate the produc- a minimum, an entree and one other tion quantities needed to accommodate menu item. If more than three menu the specific service requirements of a items are offered, the student may de- particular school or school food au- cline up to two menu items; however, thority in accordance with § 210.10(j). the entree cannot be declined. OIG means the Office of the Inspector National School Lunch Program means General of the Department. the Program under which participating Point of Service means that point in schools operate a nonprofit lunch pro- the food service operation where a de- gram in accordance with this part. termination can accurately be made General and special cash assistance and that a reimbursable free, reduced price donated food assistance are made or paid lunch has been served to an eli- available to schools in accordance with gible child. this part. Program means the National School Net cash resources means all monies, Lunch Program and the Commodity as determined in accordance with the School Program. State agency’s established accounting Reduced price lunch means a lunch system, that are available to or have served under the Program: (a) to a accrued to a school food authority’s child from a household eligible for such nonprofit school food service at any benefits under 7 CFR part 245; (b) for given time, less cash payable. Such which the price is less than the school monies may include, but are not lim- food authority designated full price of ited to, cash on hand, cash receivable, the lunch and which does not exceed earnings on investments, cash on de- the maximum allowable reduced price posit and the value of stocks, bonds or specified under 7 CFR part 245; and (c) other negotiable securities. for which neither the child nor any Nonprofit means, when applied to member of the household is required to schools or institutions eligible for the work. Program, exempt from income tax Reimbursement means Federal cash under section 501(c)(3) of the Internal assistance including advances paid or Revenue Code of 1986. payable to participating schools for Nonprofit school food service means all lunches meeting the requirements of food service operations conducted by § 210.10 and served to eligible children. the school food authority principally Revenue, when applied to nonprofit for the benefit of schoolchildren, all of school food service, means all monies the revenue from which is used solely received by or accruing to the non- for the operation or improvement of profit school food service in accordance such food services. with the State agency’s established ac- Nonprofit school food service account counting system including, but not means the restricted account in which limited to, children’s payments, earn- all of the revenue from all food service ings on investments, other local reve- operations conducted by the school nues, State revenues, and Federal cash food authority principally for the ben- reimbursements.

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School means: (a) An educational unit the period shall be a minimum of three of high school grade or under, recog- consecutive days and a maximum of nized as part of the educational system seven consecutive days. Weeks in in the State and operating under public which school lunches are offered less or nonprofit private ownership in a sin- than three times shall be combined gle building or complex of buildings; with either the previous or the coming (b) any public or nonprofit private week. classes of preprimary grade when they School year means a period of 12 cal- are conducted in the aforementioned endar months beginning July 1 of any schools; or (c) any public or nonprofit year and ending June 30 of the fol- private residential child care institu- lowing year. tion, or distinct part of such institu- Secretary means the Secretary of Ag- tion, which operates principally for the riculture. care of children, and, if private, is li- State means any of the 50 States, Dis- censed to provide residential child care trict of Columbia, the Commonwealth services under the appropriate licens- of Puerto Rico, the Virgin Islands, ing code by the State or a subordinate Guam, and, as applicable, American level of government, except for residen- Samoa and the Commonwealth of the tial summer camps which participate Northern Marianas. in the Summer Food Service Program State agency means (a) the State edu- for Children, Job Corps centers funded cational agency; (b) any other agency by the Department of Labor, and pri- of the State which has been designated vate foster homes. The term ‘‘residential child care institutions’’ includes, by the Governor or other appropriate but is not limited to: homes for the executive or legislative authority of mentally, emotionally or physically the State and approved by the Depart- impaired, and unmarried mothers and ment to administer the Program in their infants; group homes; halfway schools, as specified in § 210.3(b); or (c) houses; orphanages; temporary shelters the FNSRO, where the FNSRO admin- for abused children and for runaway isters the Program as specified in children; long-term care facilities for § 210.3(c). chronically ill children; and juvenile State educational agency means, as the detention centers. A long-term care fa- State legislature may determine, (a) cility is a hospital, skilled nursing fa- the chief State school officer (such as cility, intermediate care facility, or the State Superintendent of Public In- distinct part thereof, which is intended struction, Commissioner of Education, for the care of children confined for 30 or similar officer), or (b) a board of days or more. education controlling the State depart- School food authority means the gov- ment of education. erning body which is responsible for Student with disabilities means any the administration of one or more child who has a physical or mental im- schools; and has the legal authority to pairment as defined in § 15b.3 of the De- operate the Program therein or be oth- partment’s nondiscrimination regula- erwise approved by FNS to operate the tions (7 CFR part 15b). Program. Subsidized lunch (paid lunch) means a School week means the period of time lunch served to children who are either used to determine compliance with the not eligible for or elect not to receive nutrition standards and the appro- the free or reduced price benefits of- priate calorie and nutrient levels in fered under 7 CFR part 245. The Depart- § 210.10. Further, if applicable, school ment subsidizes each paid lunch with week is the basis for conducting Nutri- both general cash assistance and do- ent Standard Menu Planning or As- nated foods. Although a paid lunch stu- sisted Nutrient Standard Menu Plan- dent pays for a large portion of his or ning for lunches as provided in her lunch, the Department’s subsidy § 210.10(i) and § 210.10(j). The period accounts for a significant portion of shall be a normal school week of five the cost of that lunch. consecutive days; however, to accom- Yogurt means commercially prepared modate shortened weeks resulting from coagulated milk products obtained by holidays and other scheduling needs, the fermentation of specific bacteria,

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that meet milk fat or milk solid re- profit private schools or public or non- quirements and to which flavoring profit private residential child care in- foods or ingredients may be added. stitutions have been under continuous These products are covered by the Food FNS administration since October 1, and Drug Administration’s Definition 1980, unless the administration of the and Standard of Identity for yogurt, Program in such schools is assumed by lowfat yogurt, and nonfat yogurt, 21 the State. The FNSRO will, in each CFR 131.200, 21 CFR 131.203, and 21 CFR State in which it administers the Pro- 131.206, respectively. gram, assume all responsibilities of a [53 FR 29147, Aug. 2, 1988, as amended at 54 State agency as set forth in this part FR 12580, Mar. 28, 1989; 56 FR 32939, July 17, and part 245 of this chapter as appro- 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, priate. References in this part to June 13, 1995; 62 FR 10189, Mar. 6, 1997; 64 FR ‘‘State agency’’ include FNSRO, as ap- 50740, Sept. 20, 1999; 65 FR 26912, May 9, 2000; plicable, when it is the agency admin- 71 FR 39515, July 13, 2006; 72 FR 10892, Mar. istering the Program. 12, 2007; 72 FR 61490, Oct. 31, 2007; 72 FR 63790, Nov. 13, 2007] (d) School food authorities. The school food authority shall be responsible for § 210.3 Administration. the administration of the Program in schools. State agencies shall ensure (a) FNS. FNS will act on behalf of the that school food authorities administer Department in the administration of the Program in accordance with the the Program. Within FNS, the CND applicable requirements of this part; will be responsible for Program admin- part 245 of this chapter; parts 15, 15a, istration. 15b, and 3016 or 3019, as applicable, of (b) States. Within the States, the re- this title; and FNS instructions. sponsibility for the administration of the Program in schools, as defined in [53 FR 29147, Aug. 2, 1988, as amended at 71 § 210.2, shall be in the State educational FR 39515, July 13, 2006] agency. If the State educational agency is unable to administer the Program Subpart B—Reimbursement Proc- in public or private nonprofit residen- ess for States and School tial child care institutions or nonprofit Food Authorities private schools, then Program administration for such schools may be as- § 210.4 Cash and donated food assist- sumed by FNSRO as provided in para- ance to States. graph (c) of this section, or such other agency of the State as has been des- (a) General. To the extent funds are ignated by the Governor or other ap- available, FNS will make cash assist- propriate executive or legislative au- ance available in accordance with the thority of the State and approved by provisions of this section to each State the Department to administer such agency for lunches and meal supple- schools. Each State agency desiring to ments served to children under the Na- administer the Program shall enter tional School Lunch and Commodity into a written agreement with the De- School Programs. To the extent do- partment for the administration of the nated foods are available, FNS will Program in accordance with the appli- provide donated food assistance to dis- cable requirements of this part; parts tributing agencies for each lunch 235 and 245 of this chapter; parts 15, 15a, served in accordance with the provi- 15b, 3015 and 3016 of this title; and FNS sions of this part and part 250 of this instructions. chapter. (c) FNSRO. The FNSRO will admin- (b) Assistance for the National School ister the Program in nonprofit private Lunch Program. The Secretary will schools or public or nonprofit private make cash and/or donated food assist- residential child care institutions if ance available to each State agency the State agency is prohibited by law and distributing agency, as appro- from disbursing Federal funds paid to priate, administering the National such schools. In addition, the FNSRO School Lunch Program, as follows: will continue to administer the Pro- (1) Cash assistance for lunches: Cash gram in those States in which non- assistance payments are composed of a

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general cash assistance payment, au- (2) Donated food assistance. For each thorized under section 4 of the Act, and school year, FNS will provide distrib- a special cash assistance payment, au- uting agencies with donated foods for thorized under section 11 of the Act. lunches served under the National General cash assistance is provided to School Lunch Program as provided each State agency for all lunches under part 250 of this chapter. The per served to children in accordance with lunch value of donated food assistance the provisions of the National School is adjusted by the Secretary annually Lunch Program. Special cash assist- to reflect changes as required under ance is provided to each State agency section 6 of the Act. These adjust- for lunches served under the National ments, which reflect changes in the School Lunch Program to children de- Price Index for Foods Used in Schools termined eligible for free or reduced and Institutions, are effective on July 1 price lunches in accordance with part of each year and are announced by No- 245 of this chapter. The total general tice in the FEDERAL REGISTER in July cash assistance paid to each State for of each year. any fiscal year shall not exceed the (3) Cash assistance for meal supple- lesser of amounts reported to FNS as ments. For those eligible schools (as de- reimbursed to school food authorities fined in § 210.10(n)(1)) operating after- in accordance with § 210.5(d)(3) or the school care programs and electing to total calculated by multiplying the serve meal supplements to enrolled number of lunches reported in accord- children, funds shall be made available ance with § 210.5(d)(1) for each month of to each State agency, each school year service during the fiscal year, by the in an amount no less than the sum of applicable national average payment the products obtained by multiplying: rate prescribed by FNS. The total spe- (i) The number of meal supplements cial assistance paid to each State for served in the afterschool care program any fiscal year shall not exceed the within the State to children from fami- lesser of amounts reported to FNS as lies that do not satisfy the income reimbursed to school food authorities standards for free and reduced price in accordance with § 210.5(d)(3) or the school meals by 2.75 cents; total calculated by multiplying the (ii) The number of meal supplements number of free and reduced price served in the afterschool care program lunches reported in accordance with within the State to children from fami- § 210.5(d)(1) for each month of service lies that satisfy the income standard during the fiscal year by the applicable for free school meals by 30 cents; national average payment rate pre- (iii) The number of meal supplements scribed by FNS. In accordance with served in the afterschool care program section 11 of the Act, FNS will pre- within the State to children from fami- scribe annual adjustments to the per lies that satisfy the income standard meal national average payment rate for reduced price school meals by 15 (general cash assistance) and the spe- cents. cial assistance national average pay- (4) The rates in paragraph (b)(3) are ment rates (special cash assistance) the base rates established in August which are effective on July 1 of each 1981 for the CACFP. FNS shall pre- year. These adjustments, which reflect scribe annual adjustments to these changes in the food away from home rates in the same Notice as the Na- series of the Consumer Price Index for tional Average Payment Rates for all Urban Consumers, are annually an- lunches. These adjustments shall en- nounced by Notice in July of each year sure that the reimbursement rates for in the FEDERAL REGISTER. FNS will meal supplements served under this also establish maximum per meal rates part are the same as those imple- of reimbursement within which a State mented for meal supplements in the may vary reimbursement rates to CACFP. school food authorities. These max- (c) Assistance for the Commodity School imum rates of reimbursement are es- Program. FNS will make special cash tablished at the same time and an- assistance available to each State nounced in the same Notice as the na- agency for lunches served in com- tional average payment rates. modity schools in the same manner as

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special cash assistance is provided in food authorities through procedures es- the National School Lunch Program. tablished by FNS in accordance with 7 Payment of such amounts to State CFR part 3016. State agencies shall agencies is subject to the reporting re- limit requests for funds to such times quirements contained in § 210.5(d). FNS and amounts as will permit prompt will provide donated food assistance in payment of claims or authorized ad- accordance with part 250 of this chap- vances. The State agency shall dis- ter. Of the total value of donated food burse funds received from such re- assistance to which it is entitled, the quests without delay for the purpose school food authority may elect to re- for which drawn. FNS may, at its op- ceive cash payments of up to 5 cents tion, reimburse a State agency by per lunch served in its commodity Treasury Check. FNS will pay by school(s) for donated foods processing Treasury Check with funds available in and handling expenses. Such expenses settlement of a valid claim if payment include any expenses incurred by or on for that claim cannot be made within behalf of a commodity school for proc- the grant closeout period specified in essing or other aspects of the prepara- paragraph (d) of this section. tion, delivery, and storage of donated (b) Cash-in-lieu of donated foods. All foods. The school food authority may Federal funds to be paid to any State have all or part of these cash payments in place of donated foods will be made retained by the State agency for use on available as provided in part 240 of this its behalf for processing and handling chapter. expenses by the State agency or it may (c) Recovery of funds. FNS will re- authorize the State agency to transfer cover any Federal funds made available to the distributing agency all or any to the State agency under this part part of these payments for use on its which are in excess of obligations re- behalf for these expenses. Payment of ported at the end of each fiscal year in such amounts to State agencies is sub- accordance with the reconciliation project to the reporting requirements con- cedures specified in paragraph (d) of tained in § 210.5(d). The total value of this section. Such recoveries shall be donated food assistance is calculated reflected by a related adjustment in on a school year basis by adding: the State agency’s Letter of Credit. (1) The applicable national average (d) Substantiation and reconciliation payment rate (general cash assistance) process. Each State agency shall main- prescribed by the Secretary for the pe- tain Program records as necessary to riod of July 1 through June 30 multi- support the reimbursement payments plied by the total number of lunches made to school food authorities under served during the school year under the §§ 210.7 and 210.8 and the reports sub- Commodity School Program; and mitted to FNS under this paragraph. (2) The national per lunch average The State agency shall ensure such value of donated foods prescribed by records are retained for a period of 3 the Secretary for the period of July 1 years or as otherwise specified in through June 30 multiplied by the total § 210.23(c). number of lunches served during the (1) Monthly report. Each State agency school year under the Commodity shall submit a final Report of School School Program. Program Operations (FNS–10) to FNS [53 FR 29147, Aug. 2, 1988, as amended at 58 for each month. The final reports shall FR 42487, Aug. 10, 1993; 60 FR 31207, June 13, be limited to claims submitted in ac- 1995; 65 FR 26912, May 9, 2000] cordance with § 210.8 of this part. For the month of October, the final report § 210.5 Payment process to States. shall include the total number of chil- (a) Grant award. FNS will specify the dren approved for free lunches, the terms and conditions of the State agen- total number of children approved for cy’s grant in a grant award document reduced price lunches, and the total and will generally make payments number of children enrolled in partici- available by means of a Letter of Cred- pating public schools, private schools, it issued in favor of the State agency. and residential child care institutions, The State agency shall obtain funds for respectively, as of the last day of oper- reimbursement to participating school ation in October. The final reports

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shall be postmarked and/or submitted out special developmental projects. Ad- no later than 90 days following the last vance payments to school food authori- day of the month covered by the re- ties may be made at such times and in port. States shall not receive Program such amounts as are necessary to meet funds for any month for which the final the current fiscal obligations. All Fed- report is not submitted within this eral funds paid to any State in place of time limit unless FNS grants an excep- donated foods shall be used as provided tion. Upward adjustments to a State’s in part 240 of this chapter. report shall not be made after 90 days [53 FR 29147, Aug. 2, 1988, as amended at 58 from the month covered by the report FR 42487, Aug. 10, 1993] unless authorized by FNS. Downward adjustments to a State’s report shall § 210.7 Reimbursement for school food always be made regardless of when it is authorities. determined that such adjustments are (a) General. Reimbursement pay- necessary. FNS authorization is not re- ments to finance nonprofit school food quired for downward adjustments. Any service operations shall be made only adjustments to a State’s report shall to school food authorities operating be reported to FNS in accordance with under a written agreement with the procedures established by FNS. State agency. Subject to the provisions (2) Quarterly report. Each State agen- of § 210.8(c), such payments may be cy shall also submit to FNS a quar- made for lunches and meal supple- terly Financial Status Report (SF–269) ments served in accordance with provi- on the use of Program funds. Such re- sions of this part and part 245 in the ports shall be postmarked and/or sub- calendar month preceding the calendar mitted no later than 30 days after the month in which the agreement is exe- end of each fiscal year quarter. cuted. These reimbursement payments (3) End of year report. Each State include general cash assistance for all agency shall submit a final Financial lunches served to children under the Status Report (SF–269) for each fiscal National School Lunch Program and year. This final fiscal year grant close- special cash assistance payments for out report shall be postmarked and/or free or reduced price lunches served to submitted to FNS within 120 days after children determined eligible for such the end of each fiscal year or part benefits under the National School thereof that the State agency adminis- Lunch and Commodity School Pro- tered the Program. Obligations shall be grams. Reimbursement payments shall reported only for the fiscal year in also be made for meal supplements which they occur. FNS will not be re- served to eligible children in after- sponsible for reimbursing Program ob- school care programs in accordance ligations reported later than 120 days with the rates established in after the close of the fiscal year in § 210.4(b)(3). Approval shall be in ac- which they were incurred. Grant close- cordance with part 245 of this chapter. out procedures are to be carried out in (b) Assignment of rates. At the begin- accordance with 7 CFR part 3016. ning of each school year, State agen- [53 FR 29147, Aug. 2, 1988, as amended at 54 cies shall establish the per meal rates FR 12580, Mar. 28, 1989; 56 FR 32939, July 17, of reimbursement for school food au- 1991; 71 FR 39516, July 13, 2006] thorities participating in the Program. These rates of reimbursement may be § 210.6 Use of Federal funds. assigned at levels based on financial General. State agencies shall use Fed- need; except that, the rates are not to eral funds made available under the exceed the maximum rates of reim- Program to reimburse or make advance bursement established by the Sec- payments to school food authorities in retary under § 210.4(b) and are to permit connection with lunches and meal sup- reimbursement for the total number of plements served in accordance with the lunches in the State from funds avail- provisions of this part; except that, with able under § 210.4. Within each school the approval of FNS, any State agency food authority, the State agency shall may reserve an amount up to one per- assign the same rate of reimbursement cent of the funds earned in any fiscal from general cash assistance funds for year under this part for use in carrying all lunches served to children under the

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Program. Assigned rates of reimburse- food authority makes the final decision ment may be changed at any time by on a child’s eligibility status. Changes the State agency, provided that notice in eligibility which result in decreased of any change is given to the school benefit levels shall be made as soon as food authority. The total general and possible but no later than 10 operating special cash assistance reimbursement days of the date the school food au- paid to any school food authority for thority makes the final decision on the lunches served to children during the child’s eligibility status. school year are not to exceed the sum (iii) Base Claims for Reimbursement of the products obtained by multi- on lunch counts, taken daily at the plying the total reported number of point of service, which correctly iden- lunches, by type, served to eligible tify the number of free, reduced price children during the school year by the and paid lunches served to eligible chil- applicable maximum per lunch reim- dren; bursements prescribed for the school (iv) Correctly record, consolidate and year for each type of lunch. report those lunch and supplement (c) Reimbursement limitations. To be counts on the Claim for Reimburse- entitled to reimbursement under this ment; and part, each school food authority shall (v) Ensure that Claims for Reim- ensure that Claims for Reimbursement bursement do not request payment for are limited to the number of free, re- any excess lunches produced, as prohib- duced price and paid lunches and meal ited in § 210.10(a)(2), or non-Program supplements that are served to chil- lunches (i.e., a la carte or adult dren eligible for free, reduced price and lunches) or for more than one meal paid lunches and meal supplements, re- supplement per child per day. spectively, for each day of operation. (2) Point of service alternatives. (i) (1) Lunch count system. To ensure that State agencies may authorize alter- the Claim for Reimbursement accu- natives to the point of service lunch rately reflects the number of lunches counts provided that such alternatives and meal supplements served to eligi- result in accurate, reliable counts of ble children, the school food authority the number of free, reduced price and shall, at a minimum: paid lunches served, respectively, for (i) Correctly approve each child’s eli- each serving day. State agencies are gibility for free and reduced price encouraged to issue guidance which lunches and meal supplements based on clearly identifies acceptable point of the requirements prescribed under 7 service alternatives and instructions CFR part 245; for proper implementation. School food (ii) Maintain a system to issue bene- authorities may select one of the State fits and to update the eligibility of agency approved alternatives without children approved for free or reduced prior approval. price lunches and meal supplements. (ii) In addition, on a case-by-case The system shall: basis, State agencies may authorize (A) Accurately reflect eligibility sta- school food authorities to use other al- tus as well as changes in eligibility ternatives to the point of service lunch made after the initial approval process count; provided that such alternatives due to verification findings, transfers, result in an accurate and reliable lunch reported changes in income or house- count system. Any request to use an al- hold size, etc.; and ternative lunch counting method which (B) Make the appropriate changes in has not been previously authorized eligibility after the initial approval under paragraph (2)(i) is to be sub- process on a timely basis so that the mitted in writing to the State agency mechanism the school food authority for approval. Such request shall pro- uses to identify currently eligible chil- vide detail sufficient for the State dren provides a current and accurate agency to assess whether the proposed representation of eligible children. alternative would provide an accurate Changes in eligibility which result in and reliable count of the number of increased benefit levels shall be made lunches, by type, served each day to el- as soon as possible but no later than 3 igible children. The details of each ap- operating days of the date the school proved alternative shall be maintained

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on file at the State agency for review paid lunches, respectively, served for by FNS. each day of operation. (d) The State agency shall reimburse (2) School food authority claims review the school food authority for meal sup- process. Prior to the submission of a plements served in eligible schools (as monthly Claim for Reimbursement, defined in § 210.10(n)(1)) operating after- each school food authority shall review school care programs under the NSLP the lunch count data for each school in accordance with the rates estab- under its jurisdiction to ensure the ac- lished in § 210.4(b). curacy of the monthly Claim for Reim- bursement. The objective of this review [53 FR 29147, Aug. 2, 1988, as amended at 54 is to ensure that monthly claims in- FR 12581, Mar. 28, 1989; 56 FR 32939, July 17, clude only the number of free, reduced 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June 13, 1995; 65 FR 26912, May 9, 2000] price and paid lunches served on any day of operation to children currently § 210.8 Claims for reimbursement. eligible for such lunches. (i) Any school food authority that (a) Internal controls. The school food was found by its most recent adminis- authority shall establish internal con- trative review conducted in accordance trols which ensure the accuracy of with § 210.18, to have no meal counting lunch counts prior to the submission of and claiming violations may: the monthly Claim for Reimbursement. (A) Develop internal control proce- At a minimum, these internal controls dures that ensure accurate meal shall include: an on-site review of the counts. The school food authority shall lunch counting and claiming system submit any internal controls developed employed by each school within the ju- in accordance with this paragraph to risdiction of the school food authority; the State agency for approval and, in comparisons of daily free, reduced the absence of specific disapproval price and paid lunch counts against from the State agency, shall imple- data which will assist in the identifica- ment such internal controls. The State tion of lunch counts in excess of the agency shall establish procedures to number of free, reduced price and paid promptly notify school food authorities lunches served each day to children eli- of any modifications needed to their gible for such lunches; and a system for proposed internal controls or of denial following up on those lunch counts of unacceptable submissions. If the which suggest the likelihood of lunch State agency disapproves the proposed counting problems. internal controls of any school food au- (1) On-site reviews. Every school year, thority, it reserves the right to require each school food authority with more the school food authority to comply than one school shall perform no less with the provisions of paragraph (a)(3) than one on-site review of the lunch of this section; or counting and claiming system em- (B) Comply with the requirements of ployed by each school under its juris- paragraph (a)(3) of this section. diction. The on-site review shall take (ii) Any school food authority that place prior to February 1 of each school was identified in the most recent ad- year. Further, if the review discloses ministrative review conducted in ac- problems with a school’s meal counting cordance with § 210.18, or in any other or claiming procedures, the school food oversight activity, as having meal authority shall: ensure that the school counting and claiming violations shall implements corrective action; and, comply with the requirements in para- within 45 days of the review, conducts graph (a)(3) of this section. a follow-up on-site review to determine (3) Edit checks. (i) The following pro- that the corrective action resolved the cedure shall be followed for school food problems. Each on-site review shall en- authorities identified in paragraph sure that the school’s claim is based on (a)(2)(ii) of this section, by other school the counting system authorized by the food authorities at State agency op- State agency under § 210.7(c) of this tion, or, at their own option, by school part and that the counting system, as food authorities identified in paragraph implemented, yields the actual number (a)(2)(i) of this section: the school food of reimbursable free, reduced price and authority shall compare each school’s

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daily counts of free, reduced price and tablish shorter deadlines at their dis- paid lunches against the product of the cretion. Claims not postmarked and/or number of children in that school cur- submitted within 60 days shall not be rently eligible for free, reduced price paid with Program funds unless other- and paid lunches, respectively, times wise authorized by FNS. an attendance factor. (2) State agency claims review process. (ii) School food authorities that are The State agency shall review each identified in subsequent administrative school food authority’s Claim for Re- reviews conducted in accordance with imbursement, on a monthly basis, in § 210.18 as not having meal counting an effort to ensure that monthly and claiming violations and that are claims are limited to the number of correctly complying with the proce- free and reduced price lunches served, dures in paragraph (a)(3)(i) of this sec- by type, to eligible children. tion have the option of developing in- (i) The State agency shall, at a min- ternal controls in accordance with imum, compare the number of free and paragraph (a)(2)(i) of this section. reduced price lunches claimed to the (4) Follow-up activity. The school food number of children approved for free authority shall promptly follow-up and reduced price lunches enrolled in through phone contact, on-site visits the school food authority for the or other means when the internal con- month of October times the days of op- trols used by schools in accordance eration times the attendance factor with paragraph (a)(2)(i) of this section employed by the school food authority or the claims review process used by in accordance with paragraph (a)(3) of schools in accordance with paragraphs this section or the internal controls (a)(2)(ii) and (a)(3) of this section sug- used by schools in accordance with gest the likelihood of lunch count prob- paragraph (a)(2)(i) of this section. At lems. When problems or errors are its discretion, the State agency may identified, the lunch counts shall be conduct this comparison against data corrected prior to submission of the which reflects the number of children monthly Claim for Reimbursement. approved for free and reduced price Improvements to the lunch count sys- lunches for a more current month(s) as tem shall also be made to ensure that collected pursuant to paragraph (c)(2) the lunch counting system consistently of this section. results in lunch counts of the actual (ii) In lieu of conducting the claims number of reimbursable free, reduced review specified in paragraph (b)(2)(i) price and paid lunches served for each of this section, the State agency may day of operation. conduct alternative analyses for those (5) Recordkeeping. School food au- Claims for Reimbursement submitted thorities shall maintain on file, each by residential child care institutions. month’s Claim for Reimbursement and Such alternatives analyses shall meet all data used in the claims review proc- the objective of ensuring that the ess, by school. Records shall be re- monthly Claims for Reimbursement tained as specified in § 210.23(c) of this are limited to the numbers of free and part. School food authorities shall reduced price lunches served, by type, make this information available to the to eligible children. Department and the State agency upon (3) Follow-up activity. The State agen- request. cy shall promptly follow-up through (b) Monthly claims. To be entitled to phone contact, on-site visits, or other reimbursement under this part, each means when the claims review process school food authority shall submit to suggests the likelihood of lunch count the State agency, a monthly Claim for problems. Reimbursement, as described in para- (4) Corrective action. The State agency graph (c) of this section. shall promptly take corrective action (1) Submission timeframes. A final with respect to any Claim for Reim- Claim for Reimbursement shall be bursement which includes more than postmarked or submitted to the State the number of lunches served, by type, agency not later than 60 days following to eligible children. In taking correc- the last day of the full month covered tive action, State agencies may make by the claim. State agencies may es- adjustments on claims filed within the

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60-day deadline if such adjustments are common claim form with respect to completed within 90 days of the last claims for reimbursement for meals day of the claim month and are re- served under those programs. flected in the final Report of School (2) October data. For the month of Oc- Program Operations (FNS–10) for the tober, the State agency shall also ob- claim month required under § 210.5(d) of tain, either through the Claim for Re- this part. Upward adjustments in Pro- imbursement or other means, the total gram funds claimed which are not re- number of children approved for free flected in the final FNS–10 for the lunches and meal supplements, the claim month shall not be made unless total number of children approved for authorized by FNS. Except that, up- reduced price lunches and meal supple- ward adjustments for the current and ments, and the total number of chil- prior fiscal years resulting from any dren enrolled in the school food author- review or audit may be made, at the ity as of the last day of operation in discretion of the State agency. Down- October. The school food authority ward adjustments in amounts claimed shall submit this data to the State shall always be made, without FNS au- agency no later than December 31 of thorization, regardless of when it is de- each year. State agencies may estab- termined that such adjustments are lish shorter deadlines at their discre- necessary. tion. In addition, the State agency may (c) Content of claim. The Claim for Re- require school food authorities to pro- imbursement shall include data in suf- vide this data for a more current ficient detail to justify the reimburse- month if for use in the State agency ment claimed and to enable the State claims review process under paragraph agency to provide the Report of School (c)(2) of this section. Program Operations required under (d) Advance funds. The State agency § 210.5(d) of this part. Such data shall may advance funds available for the include, at a minimum, the number of Program to a school food authority in free, reduced price and paid lunches an amount equal to the amount of re- and meal supplements served to eligi- imbursement estimated to be needed ble children. The claim shall be signed for one month’s operation. Following by a school food authority official. the receipt of claims, the State agency (1) Consolidated claim. The State shall make adjustments, as necessary, agency may authorize a school food au- to ensure that the total amount of pay- thority to submit a consolidated Claim ments received by the school food au- for Reimbursement for all schools thority for the fiscal year does not ex- under its jurisdiction, provided that, the ceed an amount equal to the number of data on each school’s operations re- lunches and meal supplements by reimbursement type served to children quired in this section are maintained times the respective payment rates as- on file at the local office of the school signed by the State in accordance with food authority and the claim separates § 210.7(b). The State agency shall re- consolidated data for commodity cover advances of funds to any school schools from data for other schools. food authority failing to comply with Unless otherwise approved by FNS, the the 60-day claim submission require- Claim for Reimbursement for any ments in paragraph (b) of this section. month shall include only lunches and meal supplements served in that month [53 FR 29147, Aug. 2, 1988, as amended at 54 except if the first or last month of Pro- FR 12581, Mar. 28, 1989; 56 FR 32940, July 17, gram operations for any school year 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, contains 10 operating days or less, such June 13, 1995; 64 FR 50740, Sept. 20, 1999] month may be combined with the Claim for Reimbursement for the ap- Subpart C—Requirements for propriate adjacent month. However, School Food Authority Partici- Claims for Reimbursement may not pation combine operations occurring in two fiscal years. If a single State agency § 210.9 Agreement with State agency. administers any combination of the (a) Application. An official of a school Child Nutrition Programs, a school food authority shall make written ap- food authority shall be able to use a plication to the State agency for any

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school in which it desires to operate to be eligible for such meals under 7 the Program. Applications shall pro- CFR part 245; vide the State agency with sufficient (8) Claim reimbursement at the as- information to determine eligibility. signed rates only for reimbursable free, The school food authority shall also reduced price and paid lunches served submit for approval a Free and Re- to eligible children in accordance with duced Price Policy Statement in ac- 7 CFR part 210. Agree that the school cordance with part 245 of this chapter. food authority official signing the (b) Agreement. Each school food au- claim shall be responsible for reviewing thority approved to participate in the and analyzing meal counts to ensure program shall enter into a written accuracy as specified in § 210.8 gov- agreement with the State agency that erning claims for reimbursement. Ac- may be amended as necessary. Nothing knowledge that failure to submit accu- in the preceding sentence shall be con- rate claims will result in the recovery strued to limit the ability of the State of an overclaim and may result in the agency to suspend or terminate the withholding of payments, suspension or agreement in accordance with § 210.25. termination of the program as speci- If a single State agency administers fied in § 210.25. Acknowledge that if any combination of the Child Nutrition failure to submit accurate claims re- Programs, that State agency shall pro- flects embezzlement, willful vide each school food authority with a misapplication of funds, theft, or fraud- single agreement with respect to the ulent activity, the penalties specified operation of those programs. The in § 210.26 shall apply; agreement shall contain a statement to (9) Count the number of free, reduced the effect that the ‘‘School Food Au- price and paid reimbursable meals thority and participating schools under served to eligible children at the point its jurisdiction, shall comply with all of service, or through another counting provisions of 7 CFR parts 210 and 245.’’ system if approved by the State agen- This agreement shall provide that each cy; school food authority shall, with re- (10) Submit Claims for Reimburse- spect to participating schools under its ment in accordance with § 210.8; jurisdiction: (11) Comply with the requirements of the Department’s regulations regard- (1) Maintain a nonprofit school food ing nondiscrimination (7 CFR parts 15, service and observe the limitations on 15a, 15b); the use of nonprofit school food service (12) Make no discrimination against revenues set forth in § 210.14(a) and the any child because of his or her eligi- limitations on any competitive school bility for free or reduced price meals in food service as set forth in § 210.11(b); accordance with the approved Free and (2) Limit its net cash resources to an Reduced Price Policy Statement; amount that does not exceed 3 months (13) Enter into an agreement to re- average expenditures for its nonprofit ceive donated foods as required by 7 school food service or such other CFR part 250; amount as may be approved in accord- (14) Maintain, in the storage, prepa- ance with § 210.19(a); ration and service of food, proper sani- (3) Maintain a financial management tation and health standards in con- system as prescribed under § 210.14(c); formance with all applicable State and (4) Comply with the requirements of local laws and regulations, and comply the Department’s regulations regard- with the food safety inspection require- ing financial management (7 CFR part ment of § 210.13(b); 3015 and 7 CFR part 3016, or 7 CFR part (15) Accept and use, in as large quan- 3019, as applicable); tities as may be efficiently utilized in (5) Serve lunches, during the lunch its nonprofit school food service, such period, which meet the minimum re- foods as may be offered as a donation quirements prescribed in § 210.10; by the Department; (6) Price the lunch as a unit; (16) Maintain necessary facilities for (7) Serve lunches free or at a reduced storing, preparing and serving food; price to all children who are deter- (17) Upon request, make all accounts mined by the local educational agency and records pertaining to its school

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food service available to the State children certified eligible for free or re- agency and to FNS, for audit or review, duced price meals. at a reasonable time and place. Such (c) Afterschool care requirements. records shall be retained for a period of Those school food authorities with eli- 3 years after the date of the final Claim gible schools (as defined in for Reimbursement for the fiscal year § 210.10(n)(1)) that elect to serve meal to which they pertain, except that if supplements during afterschool care audit findings have not been resolved, programs, shall agree to: the records shall be retained beyond (1) Serve meal supplements which the 3 year period as long as required for meet the minimum requirements pre- resolution of the issues raised by the scribed in § 210.10; audit; (2) Price the meal supplement as a (18) Maintain files of currently ap- unit; proved and denied free and reduced (3) Serve meal supplements free or at price applications, respectively, and a reduced price to all children who are the names of children approved for free determined by the school food author- lunches based on documentation certi- ity to be eligible for free or reduced fying that the child is included in a price school meals under 7 CFR part household approved to receive benefits 245; under the Food Stamp Program, Food Distribution Program for Households (4) If charging for meals, the charge on Indian Reservations (FDPIR) or for a reduced price meal supplement Temporary Assistance for Needy Fami- shall not exceed 15 cents; lies (TANF). If the applications and/or (5) Claim reimbursement at the as- documentation are maintained at the signed rates only for meal supplements school food authority level, they shall served in accordance with the agree- be readily retrievable by school; ment; (19) Retain the individual applica- (6) Claim reimbursement for no more tions for free and reduced price lunches than one meal supplement per child per and meal supplements submitted by day; families for a period of 3 years after the (7) Review each afterschool care pro- end of the fiscal year to which they gram two times a year; the first review pertain or as otherwise specified under shall be made during the first four paragraph (b)(17) of this section. weeks that the school is in operation (20) No later than March 1, 1997, and each school year, except that an after- no later than December 31 of each year school care program operating year thereafter, provide the State agency round shall be reviewed during the first with a list of all elementary schools four weeks of its initial year of oper- under its jurisdiction in which 50 per- ation, once more during its first year cent or more of enrolled children have of operation, and twice each school been determined eligible for free or re- year thereafter; and duced price meals as of the last oper- (8) Comply with all requirements of ating day the preceding October. The this part, except that, claims for reim- State agency may designate a month bursement need not be based on ‘‘point other than October for the collection of of service’’ meal supplement counts (as this information, in which case the list required by § 210.9(b)(9)). must be provided to the State agency within 60 calendar days following the [53 FR 29147, Aug. 2, 1988, as amended at 54 end of the month designated by the FR 12581, Mar. 28, 1989; 56 FR 32941, July 17, State agency. In addition, each school 1991; 58 FR 42488, Aug. 10, 1993; 60 FR 31208, June 13, 1995; 62 FR 901, Jan. 7, 1997; 63 FR food authority shall provide, when 9104, Feb. 24, 1998; 64 FR 50740, Sept. 20, 1999; available for the schools under its ju- 64 FR 72471, Dec. 28, 1999; 65 FR 26912, May 9, risdiction, and upon the request of a 2000; 70 FR 34630, June 15, 2005; 71 FR 39516, sponsoring organization of day care July 13, 2006; 72 FR 63791, Nov. 13, 2007] homes of the Child and Adult Care EFFECTIVE DATE NOTE: At 74 FR 66216, Dec. Food Program, information on the 15, 2009, § 210.9 was amended by revising para- boundaries of the attendance areas for graph (b)(14), effective January 14, 2010. For the elementary schools identified as the convenience of the user, the revised text having 50 percent or more of enrolled is set forth as follows:

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§ 210.9 Agreement with State agency. Food Program authorized under part 226 of this chapter also apply to after- * * * * * school snacks served in accordance with paragraph (n) of this section. (b) * * * (2) Unit pricing. Schools must price (14) Maintain, in the storage, preparation and service of food, proper sanitation and each meal as a unit. Schools need to health standards in conformance with all ap- consider participation trends in an ef- plicable State and local laws and regula- fort to provide one reimbursable lunch tions, and comply with the food safety re- and, if applicable, one reimbursable quirements of § 210.13; afterschool snack for each child every day. If there are leftover meals, schools * * * * * may offer them to the students but cannot get reimbursement for them. § 210.10 Nutrition standards and menu (3) Production and menu records. planning approaches for lunches Schools must keep production and and requirements for afterschool menu records for the meals they snacks. produce. These records must show how (a) What are the general require- the meals contribute to the required ments?—(1) General nutrition require- food components, food items or menu ments. Schools must provide nutritious items every day. In addition, for and well-balanced meals to all the chil- lunches, these records must show how dren they serve. the lunches contribute to the nutrition (i) Requirements for lunch. For chil- standards in paragraph (b) of this sec- dren age 2 or older, schools must offer tion and the appropriate calorie and lunches that meet, at a minimum, the nutrient levels for the ages/grades of nutrition standards in paragraph (b) of the children in the school (see para- this section. Compliance with the nu- graphs (c), (d), or (i)(1) or (l) of this sec- trition standards and the appropriate tion, depending on the menu planning nutrient and calorie levels is deter- approach used) over the school week. If mined by averaging lunches planned to applicable, schools or school food au- be offered over a school week. Under thorities must maintain nutritional any menu planning approach, schools analysis records to demonstrate that must plan and produce at least enough lunches meet, when averaged over each food to meet the appropriate calorie school week: and nutrient levels for the ages/grades (i) The nutrition standards provided of the children in the school (see para- in paragraph (b) of this section; and graphs (c), (d), (i)(1) or (l) of this sec- (ii) The nutrient and calorie levels tion, depending on the menu planning for children for each age or grade group approach used). Also, if schools use one in accordance with paragraphs (c) or of the food-based menu planning ap- (i)(1) of this section or developed under proaches, they must plan and produce paragraph (l) of this section. at least enough food to offer each child (b) What are the specific nutrition the minimum quantities under the standards for lunches? Children age 2 meal pattern (see paragraph (k) of this and above must be offered lunches that section). Schools offering lunches to meet the following nutrition standards infants must meet the meal pattern re- for their age/grade group: quirements in paragraph (o) of this sec- (1) Provision of one-third of the Rec- tion. ommended Dietary Allowances (RDAs) (ii) Requirements for afterschool snacks. for protein, calcium, iron, vitamin A Schools offering afterschool snacks in and vitamin C in the appropriate levels afterschool care programs must meet for the ages/grades (see paragraphs (c), the meal pattern requirements in para- (d), (i)(1) or (l) of this section, depend- graph (n) of this section. Schools must ing on the menu planning approach plan and produce enough food to offer used); each child the minimum quantities (2) Provision of the lunchtime energy under the meal pattern in paragraph allowances (calories) in the appropriate (n) of this section. The component re- levels (see paragraphs (c), (d),(i)(1) or quirements for meal supplements (l) of this section, depending on the served under the Child and Adult Care menu planning approach used);

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(3) These applicable recommenda- (5) School food authorities have sev- tions from the 1995 Dietary Guidelines eral ways to plan menus. The minimum for Americans: levels of nutrients and calories that (i) Eat a variety of foods; lunches must offer depends on the (ii) Limit total fat to 30 percent of menu planning approach used and the total calories; ages/grades served. The menu planning (iii) Limit saturated fat to less than approaches are: 10 percent of total calories; (i) Nutrient standard menu planning (iv) Choose a diet low in cholesterol; (see paragraphs (c) and (i) of this sec- (v) Choose a diet with plenty of grain tion); products, vegetables, and fruits; and (vi) Choose a diet moderate in salt (ii) Assisted nutrient standard menu and sodium. planning (see paragraphs (c) and (j) of (4) These measures of compliance this section); with the applicable recommendations (iii) Traditional food-based menu of the 1995 Dietary Guidelines for planning (see paragraphs (d)(1) and (k) Americans: of this section); (i) Limit the percent of calories from (iv) Enhanced food-based menu plan- total fat to 30 percent of the actual ning (see paragraphs (d)(2) and (k) of number of calories offered; this section); or (ii) Limit the percent of calories (v) Alternate menu planning (see from saturated fat to less than 10 per- paragraph (l) of this section). cent of the actual number of calories (c) What are the levels for nutrients and offered; calories for lunches planned under the (iii) Reduce sodium and cholesterol nutrient standard or assisted nutrient levels; and standard menu planning approaches?—(1) (iv) Increase the level of dietary fiber. Required levels. The required levels are:

(2) Optional levels. Optional levels are:

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(3) Customized levels. Schools may (d) What are the nutrient and calorie also develop a set of nutrient and cal- levels for lunches planned under the food- orie levels for a school week. These lev- based menu planning approaches?—(1) els are customized for the age groups of Traditional approach. For the tradi- the children in the particular school or tional food-based menu planning ap- school food authority. proach, the required levels are:

(2) Enhanced approach. For the enhanced food-based menu planning approach, the required levels are:

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(e) Must schools offer choices at lunch? give all students enough time to be FNS encourages schools to offer chil- served and to eat their lunches. dren a selection of foods and menu (g) Exceptions and variations allowed items at lunch. Choices provide variety in reimbursable meals—(1) Exceptions for and encourage consumption. Schools disability reasons. Schools must make may offer choices of reimbursable substitutions in lunches and after- lunches or foods within a reimbursable school snacks for students who are con- lunch. Children who are eligible for sidered to have a disability under 7 free or reduced price lunches must be CFR 15b.3 and whose disability re- allowed to take any reimbursable stricts their diet. Substitutions must lunch or any choices offered as part of be made on a case by case basis only a reimbursable lunch. Schools may es- when supported by a written statement tablish different unit prices for each of the need for substitutions that in- lunch offered provided that the benefits cludes recommended alternate foods, made available to children eligible for unless otherwise exempted by FNS. free or reduced price lunches are not Such statement must be signed by a li- affected. censed physician. (f) What are the requirements for lunch (2) Exceptions for non-disability rea- periods?—(1) Timing. Schools must offer sons. Schools may make substitutions lunches meeting the requirements of for students without disabilities who this section during the period the cannot consume the regular lunch or school has designated as the lunch pe- afterschool snack because of medical riod. Schools must offer lunches be- or other special dietary needs. Substi- tween 10:00 a.m. and 2:00 p.m. Schools tutions must be made on a case by case may request an exemption from these basis only when supported by a written times only from FNS. statement of the need for substitutions (2) Lunch periods for young children. that includes recommended alternate With State agency approval, schools foods, unless otherwise exempted by are encouraged to serve children ages FNS. Except with respect to substi- one through five over two service peri- tutions for fluid milk, such a state- ods. Schools may divide the quantities ment must be signed by a recognized and/or the menu items, foods, or food medical authority. items offered each time any way they (i) Milk substitutions for non-disability wish. reasons. Schools may make substi- (3) Adequate lunch periods. FNS en- tutions for fluid milk for non-disabled courages schools to provide sufficient students who cannot consume fluid lunch periods that are long enough to milk due to medical or special dietary

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needs. A school that selects this option uncooked basis, in a manner which may offer the nondairy beverage(s) of does not characterize the product or its choice, provided the beverage(s) dish solely as beef, pork, poultry or meets the nutritional standards estab- seafood. Additionally, FNS encourages lished under paragraph (m) of this sec- schools to inform the students, par- tion. Expenses incurred when providing ents, and the public about efforts they substitutions for fluid milk that exceed are making to meet the nutrition program reimbursements must be paid standards (see paragraph (b) of this sec- by the school food authority. tion) for school lunches. (ii) Requisites for milk substitutions. (A) (i) What are the requirements for A school food authority must inform lunches under the nutrient standard the State agency if any of its schools menu planning approach?—(1) Nutrient choose to offer fluid milk substitutes levels—(i) Adjusting nutrient levels for other than for students with disabil- young children. Schools with children ities; and who are age 2 must at least meet the (B) A medical authority or the stu- nutrition standards in paragraph (b) of dent’s parent or legal guardian must this section and the preschool nutrient submit a written request for a fluid and calorie levels in paragraph (c)(1) of milk substitute identifying the med- this section over a school week. ical or other special dietary need that Schools may also use the preschool nu- restricts the student’s diet. trient and calorie levels in paragraph (iii) Substitution approval. The ap- (c)(2) of this section or may calculate proval for fluid milk substitution must nutrient and calorie levels for two year remain in effect until the medical au- olds. FNS has a method for calculating thority or the student’s parent or legal these levels in guidance materials for guardian revokes such request in writ- menu planning. ing, or until such time as the school (ii) Minimum levels for nutrients. changes its substitution policy for non- Lunches must at least offer the nutri- disabled students. ent and calorie levels for the required (3) Variations for ethnic, religious, or grade groups in the table in paragraph economic reasons. Schools should con- (c)(1) of this section. Schools may also sider ethnic and religious preferences offer lunches meeting the nutrient and when planning and preparing meals. calorie levels for the age groups in Variations on an experimental or con- paragraph (c)(2) of this section. If only tinuing basis in the food components one grade or age group is outside either for the food-based menu planning ap- of these established levels, schools may proaches in paragraphs (k) or (n) of follow the levels for the majority of the this section may be allowed by FNS. children. Schools may also customize Any variations must be nutritionally the nutrient and calorie levels for the sound and needed to meet ethnic, reli- children they serve. FNS has a method gious, or economic needs. for calculating these levels in guidance (4) Exceptions for natural disasters. If materials for menu planning. there is a natural disaster or other ca- (2) Reimbursable lunches—(i) Contents tastrophe, FNS may temporarily allow of a reimbursable lunch. A reimbursable schools to serve meals for reimburse- lunch must include at least three menu ment that do not meet the require- items. One of those menu items must ments in this section. be an entree, and one must be fluid (h) What must schools do about nutri- milk as a beverage. An entree is a com- tion disclosure? To the extent that bination of foods or is a single food school food authorities identify foods item offered as the main course. All in a menu, or on the serving line or menu items or foods offered in a reim- through other available means of com- bursable lunch contribute to the nutri- municating with program participants, tion standards in paragraph (b) of this school food authorities must identify section and to the levels of nutrients products or dishes containing more and calories that must be met in para- than 30 parts fully hydrated alternate graphs (c) or (i)(1) of this section. Un- protein products (as specified in appen- less offered as part of a menu item in a dix A of this part) to less than 70 parts reimbursable lunch, foods of minimal beef, pork, poultry or seafood on an nutritional value (see appendix B to

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part 210) are not included in the nutri- clude all menu items and foods offered ent analysis. Reimbursable lunches in reimbursable lunches in the nutrient planned under the nutrient standard analysis. Menu items and foods are in- menu planning approach must meet cluded based on the portion sizes and the nutrition standards in paragraph projected serving amounts. They are (b) of this section and the appropriate also weighted based on their propor- nutrient and calorie levels in either tionate contribution to the lunches of- paragraph (c) or paragraph (i)(1) of this fered. This means that menu items or section. foods more frequently offered are (ii) Offer versus serve. Schools must weighted more heavily than those not offer at least three menu items for offered as frequently. Schools calculate lunches. Senior high (as defined by the weighting as indicated by FNS guid- State educational agency) school stu- ance and by the guidance provided by dents must select at least two menu the software. Through September 30, items and are allowed to decline a 2009, schools are not required to con- maximum of two menu items. The stu- duct a weighted analysis. dent must always take the entree. The (ii) Analyzed nutrients. The analysis price of a reimbursable lunch does not includes all menu items and foods of- change if the student does not take a fered over a school week. The analysis menu item or requests smaller por- must determine the levels of: Calories, tions. At the discretion of the school protein, vitamin A, vitamin C, iron, food authority, students below the sen- calcium, total fat, saturated fat, so- ior high level may also participate in dium, cholesterol and dietary fiber. offer versus serve. (iii) Combining the analysis of the (3) Doing the analysis. Schools using lunch and breakfast programs. At their nutrient standard menu planning must option, schools may combine the anal- conduct the analysis on all menu items ysis of lunches offered under this part and foods offered in a reimbursable and breakfasts offered under part 220 of lunch. The analysis is conducted over a this Chapter. The analysis is done pro- school week. Unless offered as part of a portionately to the levels of participa- menu item in a reimbursable lunch, tion in each program based on FNS foods of minimal nutritional value (see guidance. appendix B to part 210) are not included (6) Comparing the results of the nutri- in the nutrient analysis. ent analysis. Once the procedures in (4) Software elements—(i) The Child paragraph (i)(5) of this section are com- Nutrition Database. The nutrient anal- pleted, schools must compare the re- ysis is based on the Child Nutrition sults of the analysis to the appropriate Database. This database is part of the nutrient and calorie levels, by age/ software used to do a nutrient analysis. grade groups, in paragraph (c) of this Software companies or others devel- section or those developed under para- oping systems for schools may contact graph (i)(1) of this section. This com- FNS for more information about the parison determines the school week’s database. average. Schools must also make com- (ii) Software evaluation. FNS or an parisons to the nutrition standards in FNS designee evaluates any nutrient paragraph (b) of this section to deter- analysis software before it may be used mine how well they are meeting the in schools. FNS or its designee deter- nutrition standards over the school mines if the software, as submitted, week. meets the minimum requirements. The (7) Adjustments to the menus. Once approval of software does not mean schools know the results of the nutri- that FNS or USDA endorses it. The ent analysis based on the procedures in software must be able to do all func- paragraphs (i)(5) and (i)(6) of this sections after the basic data is entered. tion, they must adjust future menu cy- The required functions include weight- cles to reflect production and how ed averages and the optional combined often the menu items and foods are of- analysis of the lunch and breakfast fered. Schools may need to reanalyze programs. menus when the students’ selections (5) Nutrient analysis procedures—(i) change and, consequently, production Weighted averages. Schools must in- levels change. Schools may need to

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change the menu items and foods of- menu(s) are not meeting these stand- fered given the students’ selections and ards, the school needs to take action to may need to modify the recipes and make sure that the lunches meet the other specifications to make sure that nutrition standards and the calorie, the nutrition standards in paragraph nutrient, and dietary component lev- (b) and either paragraphs (c) or (i)(1) of els. Actions may include technical as- this section are met. sistance and training and may be taken (8) Standardized recipes. If a school by the State agency, the school food follows the nutrient standard menu authority or by the school as needed. planning approach, it must develop and (12) Other Child Nutrition Programs follow standardized recipes. A stand- and nutrient standard menu planning. ardized recipe is a recipe that was test- School food authorities that operate ed to provide an established yield and the Summer Food Service Program quantity using the same ingredients (part 225 of this chapter) and/or the for both measurement and preparation Child and Adult Care Food Program methods. Any standardized recipes de- (part 226 of this chapter) may, with veloped by USDA/FNS are in the Child State agency approval, prepare lunches Nutrition Database. If a school has its for these programs using the nutrient own recipes, they must be standardized standard menu planning approach for and analyzed to determine the levels of children age two and over. FNS has calories, nutrients, and dietary compo- guidance on the levels of nutrients and nents listed in paragraph (i)(5)(ii) of calories for adult lunches under the this section. Schools must add any Child and Adult Care Food Program. local recipes to their local database as However, afterschool snacks continue outlined in FNS guidance. to use the appropriate program’s meal (9) Processed foods. The Child Nutri- pattern. tion Database includes a number of (j) What are the requirements for processed foods. Schools may use pur- lunches under the assisted nutrient stand- chased processed foods and menu items ard menu planning approach?—(1) Defini- that are not in the Child Nutrition tion of assisted nutrient standard menu Database. Schools or the State agency planning. Some school food authorities must add any locally purchased proc- may not be able to do all of the proce- essed foods and menu items to their dures necessary for nutrient standard local database as outlined in FNS guid- menu planning. The assisted nutrient ance. Schools or the State agency must standard menu planning approach pro- obtain the levels of calories, nutrients, vides schools with menu cycles devel- and dietary components listed in para- oped and analyzed by other sources. graph (i)(5)(ii) of this section. These sources include the State agen- (10) Menu substitutions. Schools may cy, other school food authorities, con- need to substitute foods or menu items sultants, or food service management in a menu that was already analyzed. If companies. the substitution(s) occurs more than (2) Elements of assisted nutrient stand- two weeks before the planned menu is ard menu planning. School food authori- served, the school must reanalyze the ties using menu cycles developed under revised menu. If the substitution(s) oc- assisted nutrient standard menu plan- curs two weeks or less before the ning must follow the procedures in planned menu is served, the school does paragraphs (i)(1) through (i)(10) of this not need to do a reanalysis. However, section. The menu cycles must also in- schools should always try to substitute corporate local food preferences and similar foods. accommodate local food service oper- (11) Meeting the nutrition standards. ations. The menus cycles must meet The school’s analysis shows whether the nutrition standards in paragraph their menus are meeting the nutrition (b) of this section and meet the nutri- standards in paragraph (b) of this sec- ent and calorie levels for nutrient tion and the appropriate levels of nu- standard menu planning in paragraph trients and calories in paragraph (c) of (c) or paragraph (i)(1) of this section. this section or customized levels devel- The supplier of the assisted nutrient oped under paragraph (i)(1) of this sec- standard menu planning approach must tion. If the analysis shows that the also develop and provide recipes, food

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product specifications, and preparation this section, the State agency, school techniques. All of these components food authority or school must take ac- support the nutrient analysis results of tion to make sure the lunches offered the menus cycles used by the receiving meet these requirements. Actions need- school food authorities. ed include technical assistance and (3) State agency approval. Prior to its training. use, the State agency must approve the (7) Other Child Nutrition Programs and initial menu cycle, recipes and other assisted nutrient standard menu plan- specifications of the assisted nutrient ning. School food authorities that oper- standard menu planning approach. The ate the Summer Food Service Program State agency needs to ensure that all (part 225 of this chapter) and/or the the steps required for nutrient analysis Child and Adult Care Food Program were followed. School food authorities (part 226 of this chapter) may, with may also ask the State agency for as- State agency approval, prepare lunches sistance with implementation of their for these programs using the assisted assisted nutrient standard menu plan- nutrient standard menu planning ap- ning approach. proach for children age two and over. (4) Required adjustments. After the ini- FNS has guidance on the levels of nu- tial service of the menu cycle devel- trients and calories for adult lunches oped under the assisted nutrient stand- under the Child and Adult Care Food ard menu planning approach, the nutri- Program. However, afterschool snacks ent analysis must be reassessed and ap- continue to use the appropriate pro- propriate adjustments made as dis- gram’s meal pattern. cussed in paragraph (i)(7) of this sec- (k) What are the requirements for tion. lunches under the food-based menu plan- (5) Final responsibility for meeting the ning approaches? There are two menu nutrition standards. The school food au- planning approaches based on meal thority using the assisted nutrient patterns, not nutrient analysis. These standard menu planning approach re- approaches are the traditional food- tains responsibility for meeting the nu- based menu planning approach and the trition standards in paragraph (b) of enhanced food-based menu planning ap- this section and the calorie and nutri- proach. Schools using one of these ap- ent levels in paragraph (c) or paragraph proaches offer food components in at (i)(1) of this section. least the minimum quantities required (6) Adjustments to the menus. If the nu- for the various grade groups. trient analysis shows that the lunches (1) Quantities for the traditional food- offered are not meeting the nutrition based menu planning approach—(i) Min- standards in paragraph (b) of this sec- imum quantities. At a minimum, schools tion and the calorie and nutrient levels must offer five food items in the quan- in paragraph (c) or paragraph (i)(1) of tities in the following table:

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(ii) Use of Group IV quantities. Schools provide Group V children the larger that are able to provide quantities of amounts specified in the table in para- food to children solely on the basis of graph (k)(1)(i) of this section. Schools their ages or grade level should do so. that provide increased portion sizes for Schools that cannot serve children on Group V may comply with children’s the basis of age or grade level must requests for smaller portion sizes of the provide all school age children Group food items; however, schools must plan IV portions as specified in the table in and produce sufficient quantities of paragraph (k)(1)(i) of this section. food to at least provide the serving Schools serving children on the basis of sizes required for Group IV. Schools age or grade level must plan and must ensure that lunches are served produce sufficient quantities of food to provide Groups I-IV no less than the with the objective of providing the per amounts specified for those children in lunch minimums for each age and the table in paragraph (k)(1)(i) of this grade level as specified in the table in section, and sufficient quantities of paragraph (k)(1)(i) of this section. food to provide Group V no less than (2) Quantities for the enhanced food- the specified amounts for Group IV. based menu planning approach. Schools FNS recommends that schools plan and must at least offer five food items in produce sufficient quantities of food to the quantities in the following table:

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(3) Requirements for the meat/meat al- grains/breads component but not as ternate component. The quantity of the both food components in the same meat/meat alternate component must lunch. be the edible portion as served. If the (ii) Nuts and seeds. Nuts and seeds and portion size of a food item for this com- their butters are allowed as meat alter- ponent is excessive, the school must re- nates in accordance with program guid- duce that portion and supplement it ance. Acorns, chestnuts, and coconuts with another meat/meat alternate to must not be used because of their low meet the full requirement. This compo- protein and iron content. Nut and seed nent must be served in a main dish or meals or flours may be used only as al- in a main dish and only one other food lowed under appendix A to this part. item. Schools without daily choices in Nuts or seeds may be used to meet no this component should not serve any more than one-half of the meat/meat one meat alternate or form of meat (for alternate component with another example, ground, diced, pieces) more meat/meat alternate to meet the full than three times in the same week. requirement. (i) Enriched macaroni. Enriched maca- (iii) Yogurt. Yogurt may be used to roni with fortified protein as defined in meet all or part of the meat/meat al- appendix A to this part may be used to ternate requirement. Yogurt may be ei- meet part of the meat/meat alternate ther plain or flavored, unsweetened or requirement when used as specified in sweetened. Noncommercial and/or non- appendix A to this part. An enriched standardized yogurt products, such as macaroni product with fortified protein frozen yogurt, homemade yogurt, yo- as defined in appendix A to this part gurt flavored products, yogurt bars, yo- may be used to meet part of the meat/ gurt covered fruit and/or nuts or simi- meat alternate component or the lar products are not creditable. Four

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ounces (weight) or 1⁄2 cup (volume) of to one grain-based dessert per day for yogurt equals one ounce of the meat/ children in grades K-12 towards meet- meat alternate requirement. ing the grains/breads component. (4) Requirements for the vegetable/fruit (6) Offer versus serve. Schools must component. offer all five required food items. Sen- (i) General. Full strength vegetable or ior high (as defined by the State edu- fruit juice may be used to meet no cational agency) school students may more than one-half of the vegetable/ decline up to two of the five food items. fruit requirement. Cooked dry beans or At the school food authority’s option, peas may be counted as either a vege- students below senior high may decline table or as a meat alternate but not as one or two of the five food items. The both in the same meal. price of a reimbursable lunch does not (ii) Minimum quantities for the en- change if the student does not take a hanced food-based menu planning. Under menu item or requests smaller por- the enhanced food-based menu plan- tions. ning approach, children in kinder- (7) Meal pattern exceptions for outlying garten through grade six are offered areas. Schools in American Samoa, vegetables/fruits in minimum daily Puerto Rico and the Virgin Islands servings plus an additional one-half may serve a starchy vegetable such as cup in any combination over a five day yams, plantains, or sweet potatoes to period. meet the grain/bread requirement. (5) Requirements for the grains/breads (l) What are the requirements for component—(i) Enriched or whole grains. lunches planned using an alternate menu All grains/breads must be enriched or planning approach?—(1) Definition. Al- whole grain or made with enriched or ternate menu planning approaches are whole grain meal or flour. those adopted or developed by school (ii) Daily and weekly servings. The re- food authorities or State agencies that quirement for the grain/bread compo- differ from the standard approaches es- nent is based on minimum daily tablished in paragraphs (i) through (k) servings plus total servings over a five of this section. There are two types of day period. Schools serving lunch 6 or alternate approaches. First, there are 7 days per week should increase the specific modifications provided in para- weekly quantity by approximately 20 graph (l)(2) of this section. Second, percent (1⁄5th) for each additional day. there are major changes to the stand- When schools operate less than 5 days ard menu planning approaches or new per week, they may decrease the week- menu planning approaches developed ly quantity by approximately 20 per- by school food authorities or State cent (1⁄5th) for each day less than five. agencies (see paragraph (l)(3) of this The servings for biscuits, rolls, muf- section). fins, and other grain/bread varieties are (2) Use of modifications. There are specified in the Food Buying Guide for three modifications available to Child Nutrition Programs (PA 1331), an schools using one of the food-based FNS publication. menu planning approaches for lunches. (iii) Minimums under the traditional State agencies may or may not require food-based menu planning approach. prior approval or may establish guide- Schools must offer at least one-half lines for using these modifications. serving of the grain/bread component (i) Modification to the meat/meat alter- to children in Group I and at least one nate component. The required minimum serving to children in Groups II-V quantities of the meat/meat alternate daily. Schools which serve lunch at component in the food-based menu least 5 days a week shall serve a total planning approaches may be offered as of at least five servings of grains/breads a weekly total with a one ounce (or its to children in Group I and eight equivalent for certain meat alternates) servings per week to children in Groups minimum daily serving size. This II-V. modification does not apply if the min- (iv) Desserts under the enhanced food- imum serving of meat/meat alternate based menu planning approach. Under is less than one ounce. the enhanced food-based menu plan- (ii) Modification to age/grade groups ning approach, schools may count up under the traditional food-based menu

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planning approach. Schools using the (iii) State agency approaches not sub- traditional food-based menu planning ject to approval. A State agency-devel- approach may: oped menu planning approach does not (A) For children in grades K–6, use need FNS approval if: the portion sizes in Group IV in the (A) Five or more school food authori- table in paragraph (k)(1) of this section ties in the State use it; and and follow the nutrient levels for chil- (B) The State agency maintains on- dren in grades K–6 in paragraphs (c)(1) going oversight of the operation and and (d)(2) of this section; and/or evaluation of the approach and makes (B) For children in grades 7–12, use any needed adjustments to its policies the portion sizes in Group IV in the and procedures to ensure that the ap- table in paragraph (k)(1) of this section propriate guidelines of paragraph (l)(4) and follow the nutrient levels for chil- of this section are met. dren in grades 7–12 in paragraphs (c)(1) (4) Elements for major changes or new and (d)(2) of this section. approaches. Any alternate menu plan- (iii) Modification for the majority of ning approach must: children. Under the traditional or en- (i) Offer fluid milk, as provided in hanced food-based menu planning ap- paragraph (m) of this section; proaches, if only one age or grade is (ii) Include offer versus serve for sen- outside the established levels, schools ior high students. Alternate menu may follow the levels for the majority planning approaches should follow the of children for both quantities (see offer versus serve procedures in para- paragraph (k)) and the nutrition stand- graphs (i)(2)(ii) and (k)(6) of this sec- ards in paragraphs (b) and (d) of this tion, as appropriate. If these require- section. ments are not followed, the plan must (3) Use and approval of major changes indicate: or new alternate approaches. Within the (A) The affected age/grade groups; guidelines established for developing (B) The number and type of items alternate menu planning approaches, (and, if applicable, the quantities for school food authorities or State agen- the items) that constitute a reimburs- cies may modify one of the established able lunch under offer versus serve; menu planning approaches in paragraphs (i) through (k) of this section or (C) How such procedures will reduce may develop their own menu planning plate waste; and approach. The alternate menu planning (D) How a reasonable level of calories approach must be available in writing and nutrients for the lunch as taken is for review and monitoring purposes. No provided; formal plan is required; guidance mate- (iii) Meet the Recommended Dietary rial, a handbook or protocol is suffi- Allowances and lunchtime energy al- cient. As appropriate, the material lowances (nutrient levels) and indicate must address how the guidelines in the age/grade groups served and how paragraph (l)(4) of this section are met. the nutrient levels are met for those A State agency that develops an alter- age/grade groups; nate approach that is exempt from (iv) Follow the requirements for com- FNS approval under paragraph petitive foods in § 210.11 and appendix B (l)(3)(iii) of this section must notify to this part; FNS in writing when implementing the (v) Follow the requirements for alternate approach. counting food items and products to- (i) Approval of local level approaches. wards the meal patterns. These re- Any school food authority-developed quirements are found in paragraphs menu planning approach must have (k)(3) through (k)(5) and paragraph (m) prior State agency review and ap- of this section, in appendices A proval. through C to this part, and in instruc- (ii) Approval of State agency ap- tions and guidance issued by FNS. This proaches. Unless exempt under para- only applies if the alternate approach graph (l)(3)(iii) of this section, any is a food-based menu planning ap- State agency-developed menu planning proach; approach must have prior FNS ap- (vi) Identify a reimbursable lunch at proval. the point of service;

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(A) To the extent possible, the proce- year of age must be served breast milk dures provided in paragraph (i)(2)(i) of or iron-fortified infant formula. All this section for the nutrient standard milk must have vitamins A and D at or assisted nutrient standard menu levels specified by the Food and Drug planning approaches or for food-based Administration and must be consistent menu planning approaches provided in with State and local standards for such paragraph (k) of this section must be milk. followed. Any instructions or guidance (2) Inadequate milk supply. If a school issued by FNS that further defines the cannot get a supply of milk, it can still elements of a reimbursable lunch must participate in the Program under the be followed when using the existing following conditions: regulatory provisions. (i) If emergency conditions tempo- (B) Any alternate approach that devi- rarily prevent a school that normally ates from the provisions in paragraph has a supply of fluid milk from obtain- (i)(2)(i) or paragraph (k) of this section ing delivery of such milk, the State must indicate what constitutes a reim- agency may allow the school to serve bursable lunch, including the number meals during the emergency period and type of items (and, if applicable, with an alternate form of milk or with- the quantities for the items) which out milk. comprise the lunch, and how a reim- (ii) If a school is unable to obtain a bursable lunch is to be identified at the supply of any type of fluid milk on a point of service; continuing basis, the State agency may (vii) Explain how the alternate menu approve the service of meals without planning approach can be monitored fluid milk if the school uses an equiva- under the applicable provisions of lent amount of canned milk or dry §§ 210.18 and 210.19, including a descrip- milk in the preparation of the meals. tion of the records that will be main- In Alaska, Hawaii, American Samoa, tained to document compliance with Guam, Puerto Rico, and the Virgin Is- the program’s administrative and nu- lands, if a sufficient supply of fluid trition requirements. However, if the milk cannot be obtained, ‘‘milk’’ in- procedures under § 210.19 cannot be used cludes reconstituted or recombined to monitor the alternate approach, a milk, or as otherwise allowed by FNS description of procedures which will through a written exception. enable the State agency to assess com- (3) Milk substitutes. If a school chooses pliance with the nutrition standards in to offer one or more substitutes for paragraphs (b)(1) through (b)(4) of this fluid milk for non-disabled students section must be included; and with medical or special dietary needs, (viii) Follow the requirements for the nondairy beverage(s) must provide weighted analysis and for approved the nutrients listed in the following software for nutrient standard menu table. Milk substitutes must be for- planning approaches as required by tified in accordance with fortification paragraphs (i)(4) and (i)(5) of this sec- guidelines issued by the Food and Drug tion unless a State agency-developed Administration. A school need only approach meets the criteria in para- offer the nondairy beverage(s) that it graph (l)(3)(iii) of this section. Through has identified as allowable fluid milk September 30, 2009, schools are not re- substitutes according to this paragraph quired to conduct a weighted analysis. (m)(3). (m) What are the requirements for offering milk?—(1) Types of milk. (i) Under all Nutrient Per cup menu planning approaches for stu- Calcium ...... 276 mg. dents, schools must offer students fluid Protein ...... 8 g. Vitamin A ...... 500 IU. milk in a variety of fat contents. Vitamin D ...... 100 IU. Schools may offer flavored or Magnesium ...... 24 mg. unflavored milk and lactose-free fluid Phosphorus ...... 222 mg. Potassium ...... 349 mg. milk. Riboflavin ...... 0.44 mg. (ii) All milk served in the Program Vitamin B-12 ...... 1.1 mcg. must be pasteurized fluid milk which meets State and local standards for (4) Restrictions on the sale of milk. A such milk. However, infants under 1 school participating in the Program, or

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a person approved by a school partici- requirements described in paragraph pating in the Program, must not di- (n)(3)(iv) of this section. Foods in- rectly or indirectly restrict the sale or cluded in the snack must be of a tex- marketing of fluid milk (as described ture and a consistency that are appro- in paragraph (m)(1)(ii) of this section) priate for the age of the infant being at any time or in any place on school served. The foods must be served dur- premises or at any school-sponsored ing a span of time consistent with the event. infant’s eating habits. For those in- (n) Supplemental food. Eligible schools fants whose dietary needs are more in- operating afterschool care programs dividualized, exceptions to the meal may be reimbursed for one meal sup- pattern must be made in accordance plement served to an eligible child (as with the requirements found in para- defined in § 210.2) per day. graph (g)(1) of this section. (1) Eligible schools mean schools (i) Breastmilk and iron-fortified for- that: mula. Either breastmilk or iron-for- (i) Operate school lunch programs tified infant formula, or portions of under the National School Lunch Act; both, must be served for the entire first (ii) Sponsor afterschool care pro- year. Snacks containing breastmilk grams as defined in § 210.2; and and snacks containing iron-fortified in- (iii) Were participating in the Child fant formula supplied by the school are and Adult Care Food Program as of eligible for reimbursement. However, May 15, 1989. infant formula provided by a parent (or (2) Meal supplements shall contain guardian) and breastmilk fed directly two different components from the fol- by the infant’s mother, during a visit lowing four: to the school, contribute to a reimburs- (i) A serving of fluid milk as a bev- able snack only when the school sup- erage, or on cereal, or used in part for plies at least one component of the in- each purpose; fant’s snack. (ii) A serving of meat or meat alter- (ii) Fruit juice. Juice should not be of- nate. Nuts and seeds and their butters fered to infants until they are 6 months listed in program guidance are nutri- of age and ready to drink from a cup. tionally comparable to meat or other Feeding fruit juice only from a cup will meat alternates based on available nu- help develop behaviors that may pre- tritional data. Acorns, chestnuts, and vent early childhood caries. Fruit juice coconuts are excluded and shall not be served as part of the meal pattern for used as meat alternates due to their infants 8 through 11 months must be low protein content. Nut or seed meals full-strength. or flours shall not be used as a meat al- (iii) Solid foods. Solid foods of an ap- ternate except as defined under appen- propriate texture and consistency are dix A: Alternate Foods for Meals of required only when the infant is devel- this part; opmentally ready to accept them. The (iii) A serving of vegetable(s) or school should consult with the infant’s fruit(s) or full-strength vegetable or parent (or guardian) in making the de- fruit juice, or an equivalent quantity of cision to introduce solid foods. Solid any combination of these foods. Juice foods should be introduced one at a may not be served when milk is served time, on a gradual basis, with the in- as the only other component; tent of ensuring the infant’s health and (iv) A serving of whole-grain or en- nutritional well-being. riched bread; or an equivalent serving (iv) Infant meal pattern. Infant snacks of cornbread, biscuits, rolls, muffins, must have, at a minimum, breastmilk etc., made with whole-grain or en- or iron-fortified infant formula, or por- riched meal or flour; or a serving of tions of both, in the appropriate cooked whole-grain or enriched pasta amount indicated for the infant’s age. or noodle products such as macaroni, For some breastfed infants who regu- or cereal grains such as rice, bulgur, or larly consume less than the minimum corn grits; or an equivalent quantity of amount of breastmilk per feeding, a any combination of these foods. serving of less than the minimum (3) Snacks served to infants ages amount of breastmilk may be offered. birth through 11 months must meet the In these situations, additional

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breastmilk must be offered if the in- (4) The minimum amounts of food fant is still hungry. Some infants may components to be served as meal sup- be developmentally ready to accept an plements as set forth in paragraphs additional food component. Snacks are (n)(2) and (n)(3) of this section are as reimbursable when schools provide all follows. Select two different compo- of the components in the meal pattern nents from the four listed. (Juice may that the infant is developmentally not be served when milk is served as ready to accept. the only other component.) (A) Birth through 3 months. 4 to 6 fluid ounces of breastmilk or iron-fortified SNACK PATTERN FOR INFANTS infant formula—only breastmilk or Birth through 3 4 through 7 8 through 11 iron-fortified formula is required to months months months meet the infant’s nutritional needs. (B) 4 through 7 months. 4 to 6 fluid 4–6 fluid ounces of 4–6 fluid ounces of 2–4 fluid ounces of formula 1 or formula 1 or formula 1, ounces of breastmilk or iron-fortified breastmilk 2,3. breastmilk 2,3. breastmilk 2,3, or infant formula—only breastmilk or fruit juice 4; and iron-fortified formula is required to 0–1⁄2 slice of meet the infant’s nutritional needs. bread 5 or 0–2 5 (C) 8 through 11 months. 2 to 4 fluid crackers . ounces of breastmilk, iron-fortified in- 1 Infant formula must be iron-fortified. 2 Breastmilk or iron-fortified formula, or portions of both, fant formula, or full strength fruit may be served; however, it is recommended that breastmilk juice; and 0 to 1⁄2 slice of crusty bread be served in place of formula from birth through 11 months. 3 For some breastfed infants who regularly consume less (if developmentally ready) or 0 to 2 than the minimum amount of breastmilk per feeding, a serving cracker type products (if develop- of less than the minimum amount of breastmilk may be offered, with additional breastmilk offered if the infant is still mentally ready), which are made from hungry. whole-grain or enriched meal or flour, 4 Fruit juice must be full-strength. 5 A serving of this component must be made from whole- and suitable as a finger food for an in- grain or enriched meal or flour. It is required only when the infant. fant is developmentally ready to accept it.

SUPPLEMENTS FOR INFANTS

Birth through 3 months 4 through 7 months 8 through 11 months

Supplement (snack) 4–6 fl. oz. breast milk 2,3 or 4–6 fl. oz. breast milk 2,3 or 2–4 fl. oz breast milk 2,3, formula 1, or formula 1 formula 1 fruit juice 4; 0–1⁄2 bread 5 or 0–2 crackers 5. 1 Infant formula shall be iron-fortified. 2 It is recommended that breast milk be served in place of formula from birth through 11 months. 3 For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the minimum amount of breast milk may be offered with additional breast milk offered if the infant is still hungry. 4 Fruit juice shall be full-strength. 5 Bread and bread alternates shall be made from whole-grain or enriched meal or flour. A serving of this component shall be optional.

(o) What are the requirements for the must be in liquid state at rec- infant lunch pattern?—(1) Definitions. (i) ommended dilution. Infant cereal means any iron-fortified (2) Feeding lunches to infants. Lunches dry cereal especially formulated and served to infants ages birth through 11 generally recognized as cereal for in- months must meet the requirements fants which is routinely mixed with described in paragraph (o)(5) of this breast milk or iron-fortified infant for- section. Foods included in the lunch mula prior to consumption. must be of a texture and a consistency (ii) Infant formula means any iron- that are appropriate for the age of the fortified formula intended for dietary infant being served. The foods must be use solely as a food for normal, healthy served during a span of time consistent infants. Formulas specifically formu- with the infant’s eating habits. For lated for infants with inborn errors of those infants whose dietary needs are metabolism or digestive or absorptive more individualized, exceptions to the problems are not included in this defi- meal pattern must be made in accordance with the requirements found in nition. Infant formula, when served, paragraph (g)(1) of this section.

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(3) Breastmilk and iron-fortified for- meet the component requirements for mula. Either breastmilk or iron-for- vegetables and fruit, portions of both tified infant formula, or portions of may be served. both, must be served for the entire first (i) Birth through 3 months. 4 to 6 fluid year. Meals containing breastmilk and ounces of breastmilk or iron-fortified meals containing iron-fortified infant infant formula—only breastmilk or formula supplied by the school are eli- iron-fortified formula is required to gible for reimbursement. However, in- meet the infant’s nutritional needs. fant formula provided by a parent (or (ii) 4 through 7 months. Breastmilk or guardian) and breastmilk fed directly iron-fortified formula is required. by the infant’s mother, during a visit Some infants may be developmentally to the school, contribute to a reimburs- ready for solid foods of an appropriate able lunch only when the school sup- texture and consistency. Lunches are plies at least one component of the in- reimbursable when schools provide all fant’s meal. of the components in the meal pattern (4) Solid foods. For infants ages 4 that the infant is developmentally through 7 months, solid foods of an ap- ready to accept. propriate texture and consistency are (A) 4 to 8 fluid ounces of breastmilk required only when the infant is devel- or iron-fortified infant formula; and opmentally ready to accept them. The (B) 0 to 3 tablespoons of iron-fortified school should consult with the infant’s dry infant cereal; and parent (or guardian) in making the de- (C) 0 to 3 tablespoons of fruit or vege- cision to introduce solid foods. Solid table. foods should be introduced one at a time, on a gradual basis, with the in- (iii) 8 through 11 months. Breastmilk tent of ensuring the infant’s health and or iron-fortified formula and solid nutritional well-being. foods of an appropriate texture and (5) Infant meal pattern. Infant lunches consistency are required. must have, at a minimum, each of the (A) 6 to 8 fluid ounces of breastmilk food components indicated, in the or iron-fortified infant formula; and amount that is appropriate for the in- (B) 2 to 4 tablespoons of iron-fortified fant’s age. For some breastfed infants dry infant cereal; and/or 1 to 4 table- who regularly consume less than the spoons of meat, fish, poultry, egg yolk, minimum amount of breastmilk per or cooked dry beans or peas; or 1⁄2 to 2 feeding, a serving of less than the min- ounces (weight) of cheese; or 1 to 4 imum amount of breastmilk may be of- ounces (volume) of cottage cheese; or 1 fered. In these situations, additional to 4 ounces (weight) of cheese food or breastmilk must be offered if the in- cheese spread; and fant is still hungry. Lunches may in- (C) 1 to 4 tablespoons of fruit or vege- clude portions of breastmilk and iron- table. fortified infant formula as long as the (6) Infant meal pattern table. The min- total number of ounces meets, or ex- imum amounts of food components to ceeds, the minimum amount required serve to infants, as described in para- of this food component. Similarly, to graph (o)(5) of this section, are:

LUNCH PATTERN FOR INFANTS

Birth through 3 months 4 through 7 months 8 through 11 months

4–6 fluid ounces of formula 1 or 4–8 fluid ounces of formula 1 or 6–8 fluid ounces of formula 1 or breastmilk 2,3. breastmilk 2,3; and breastmilk 2,3; and 0–3 tablespoons of infant cereal 1,4; and 2–4 tablespoons of infant cereal 1; and/or 0–3 tablespoons of fruit or vegetable or 1–4 tablespoons of meat, fish, poultry, both 4. egg yolk, cooked dry beans or peas; or 1⁄2–2 ounces of cheese; or 1–4 ounces (volume) of cottage cheese; or 1–4 ounces (weight) of cheese food or cheese spread; and 1–4 tablespoons of fruit or vegetable or both.

1 Infant formula and dry infant cereal must be iron-fortified.

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2 Breastmilk or formula, or portions of both, may be served; however, it is recommended that breastmilk be served in place of formula from birth through 11 months. 3 For some breastfed infants who regularly consume less than the minimum amount of breastmilk per feeding, a serving of less than the minimum amount of breastmilk may be offered, with additional breastmilk offered if the infant is still hungry. 4 A serving of this component is required only when the infant is developmentally ready to accept it.

[60 FR 31208, June 13, 1995, 60 FR 57146, Nov. and school food authorities may im- 14, 1995, as amended at; 62 FR 10189, Mar. 6, pose additional restrictions on the sale 1997; 64 FR 61773, Nov. 15, 1999; 65 FR 26913, of and income from all foods sold at May 9, 2000; 65 FR 31371, May 17, 2000; 65 FR 36317, June 8, 2000; 67 FR 36783, May 28, 2002; any time throughout schools partici- 69 FR 70872, Dec. 8, 2004; 70 FR 70033, Nov. 21, pating in the Program. 2005; 73 FR 52907, Sept. 12, 2008] [53 FR 29147, Aug. 2, 1988, as amended at 59 FR 23614, May 6, 1994] § 210.11 Competitive food services. (a) Definitions. For the purpose of this § 210.12 Student, parent and commu- section: nity involvement. (1) Competitive foods means any foods (a) General. School food authorities sold in competition with the Program shall promote activities to involve stu- to children in food service areas during dents and parents in the Program. the lunch periods. Such activities may include menu (2) Food of minimal nutritional value planning, enhancement of the eating means: (i) In the case of artificially environment, Program promotion, and sweetened foods, a food which provides related student-community support ac- less than five percent of the Reference tivities. School food authorities are en- Daily Intakes (RDI) for each of eight couraged to use the school food service specified nutrients per serving; and (ii) program to teach students about good in the case of all other foods, a food nutrition practices and to involve the which provides less than five percent of school faculty and the general commu- the RDI for each of eight specified nu- nity in activities to enhance the Pro- trients per 100 calories and less than gram. five percent of the RDI for each of (b) Food service management compa- eight specified nutrients per serving. nies. School food authorities con- The eight nutrients to be assessed for tracting with a food service manage- this purpose are—protein, vitamin A, ment company shall comply with the vitamin C, niacin, riboflavin, thiamine, provisions of § 210.16(a) regarding the calcium, and iron. All categories of establishment of an advisory board of food of minimal nutritional value and parents, teachers and students. petitioning requirements for changing (c) Residential child care institutions. the categories are listed in appendix B Residential child care institutions of this part. shall comply with the provisions of (b) General. State agencies and school this section, to the extent possible. food authorities shall establish such rules or regulations as are necessary to § 210.13 Facilities management. control the sale of foods in competition with lunches served under the Pro- (a) Health standards. The school food gram. Such rules or regulations shall authority shall ensure that food stor- prohibit the sale of foods of minimal age, preparation and service is in ac- nutritional value, as listed in appendix cordance with the sanitation and B of this part, in the food service areas health standards established under during the lunch periods. The sale of State and local law and regulations. other competitive foods may, at the (b) Food safety inspections. Schools discretion of the State agency and shall obtain a minimum of two food school food authority, be allowed in safety inspections during each school the food service area during the lunch year conducted by a State or local gov- period only if all income from the sale ernmental agency responsible for food of such foods accrues to the benefit of safety inspections. They shall post in a the nonprofit school food service or the publicly visible location a report of the school or student organizations ap- most recent inspection conducted, and proved by the school. State agencies provide a copy of the inspection report

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to a member of the public upon re- § 210.14 Resource management. quest. Sites participating in more than (a) Nonprofit school food service. one child nutrition program shall only School food authorities shall maintain be required to obtain two food safety a nonprofit school food service. Reve- inspections per school year if the nutri- nues received by the nonprofit school tion programs offered use the same fa- food service are to be used only for the cilities for the production and service operation or improvement of such food of meals. (c) Storage. The school food authority service, except that, such revenues shall shall ensure that the necessary facili- not be used to purchase land or build- ties for storage, preparation and servings, unless otherwise approved by ice of food are maintained. Facilities FNS, or to construct buildings. Ex- for the handling, storage, and distribu- penditures of nonprofit school food tion of purchased and donated foods service revenues shall be in accordance shall be such as to properly safeguard with the financial management system against theft, spoilage and other loss. established by the State agency under § 210.19(a) of this part. School food au- [54 FR 29147, Aug. 2, 1988, as amended at 64 thorities may use facilities, equipment, FR 50740, Sept. 20, 1999; 70 FR 34630, June 15, and personnel supported with nonprofit 2005] school food revenues to support a non- EFFECTIVE DATE NOTE: At 74 FR 66216, Dec. profit nutrition program for the elder- 15, 2009, § 210.13 was amended by redesig- ly, including a program funded under nating paragraph (c) as (d) and by adding a the Older Americans Act of 1965 (42 new paragraph (c), effective January 14, 2010. For the convenience of the user, the added U.S.C. 3001 et seq.). text is set forth as follows: (b) Net cash resources. The school food authority shall limit its net cash re- § 210.13 Facilities management. sources to an amount that does not exceed 3 months average expenditures for * * * * * its nonprofit school food service or (c) Food safety program. The school food au- such other amount as may be approved thority must develop a written food safety by the State agency in accordance with program for each of its food preparation and § 210.19(a). service facilities that meets the require- (c) Financial assurances. The school ments in paragraph (c)(1) or paragraph (c)(2) food authority shall meet the require- of this section. ments of the State agency for compli- (1) A school food authority with a food safety program based on traditional hazard ance with § 210.19(a) including any sepa- analysis and critical control point (HACCP) ration of records of nonprofit school principles must: food service from records of any other (i) Perform a hazard analysis; food service which may be operated by (ii) Decide on critical control points; the school food authority as provided (iii) Determine the critical limits; in paragraph (a) of this section. (iv) Establish procedures to monitor crit- (d) Use of donated foods. The school ical control points; (v) Establish corrective actions; food authority shall enter into an (vi) Establish verification procedures; and agreement with the distributing agen- (vii) Establish a recordkeeping system. cy to receive donated foods as required (2) A school food authority with a food by part 250 of this chapter. In addition, safety program based on the process ap- the school food authority shall accept proach to HACCP must ensure that its pro- and use, in as large quantities as may gram includes: be efficiently utilized in its nonprofit (i) Standard operating procedures to provide a food safety foundation; school food service, such foods as may (ii) Menu items grouped according to proc- be offered as a donation by the Depart- ess categories; ment. (iii) Critical control points and critical limits; [53 FR 29147, Aug. 2, 1988, as amended at 60 (iv) Monitoring procedures; FR 31215, June 13, 1995] (v) Corrective action procedures; (vi) Recordkeeping procedures; and § 210.15 Reporting and recordkeeping. (vii) Periodic program review and revision. (a) Reporting summary. Participating school food authorities are required to * * * * * submit forms and reports to the State

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agency or the distributing agency, as cordance with 7 CFR 245.6a of this appropriate, to demonstrate compli- Title; and ance with Program requirements. (5) Food safety inspection records to These reports include, but are not lim- demonstrate compliance with ited to: § 210.13(b). (1) A Claim for Reimbursement and, for the month of October and as other- [53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12582, Mar. 28, 1989; 56 FR 32941, July 17, wise specified by the State agency, sup- 1991; 60 FR 31215, June 13, 1995; 65 FR 26912, porting data as specified in accordance 26922, May 9, 2000; 70 FR 34630, June 15, 2005] with § 210.8 of this part; (2) An application and agreement for EFFECTIVE DATE NOTE: At 74 FR 66216, Dec. 15, 2009, § 210.15 was amended by revising the Program operations between the school introductory text of paragraph (b) and para- food authority and the State agency, graph (b)(5), effective January 14, 2010. For and a Free and Reduced Price Policy the convenience of the user, the revised text Statement as required under § 210.9; is set forth as follows: (3) A written response to reviews pertaining to corrective action taken for § 210.15 Reporting and recordkeeping. Program deficiencies; (4) A commodity school’s preference * * * * * whether to receive part of its donated (b) Recordkeeping summary. In order to par- food allocation in cash for processing ticipate in the Program, a school food au- and handling of donated foods as re- thority or a school, as applicable, must quired under § 210.19(b); maintain records to demonstrate compliance (5) A written response to audit find- with Program requirements. These records ings pertaining to the school food include but are not limited to: authority’s operation as required under § 210.22; * * * * * (6) Information on civil rights com- (5) Records from the food safety program plaints, if any, and their resolution as for a period of six months following a required under § 210.23; and month’s temperature records to demonstrate (7) The number of food safety inspec- compliance with § 210.13(c), and records from tions obtained per school year by each the most recent food safety inspection to school under its jurisdiction. demonstrate compliance with § 210.13(b). (b) Recordkeeping summary. In order to participate in the Program, a school § 210.16 Food service management food authority shall maintain records companies. to demonstrate compliance with Pro- (a) General. Any school food author- gram requirements. These records in- ity (including a State agency acting in clude but are not limited to: the capacity of a school food authority) (1) Documentation of participation may contract with a food service man- data by school in support of the Claim agement company to manage its food for Reimbursement and data used in service operation in one or more of its the claims review process, as required schools. However, no school or school under § 210.8(a), (b), and (c) of this part; food authority may contract with a (2) Production and menu records and, food service management company to if appropriate, nutrition analysis operate an a la carte food service un- records as required under § 210.10, less the company agrees to offer free, whichever is applicable. reduced price and paid reimbursable (3) Participation records to dem- lunches to all eligible children. Any onstrate positive action toward pro- school food authority that employs a viding one lunch per child per day as food service management company in required under § 210.10(a)(2), whichever the operation of its nonprofit school is applicable; food service shall: (4) Currently approved and denied ap- (1) Adhere to the procurement stand- plications for free and reduced price ards specified in § 210.21 when con- lunches and a description of the tracting with the food service manage- verification activities, including ment company; verified applications, and any accom- (2) Ensure that the food service oper- panying source documentation in ac- ation is in conformance with the school

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food authority’s agreement under the (b) Invitation to bid. In addition to ad- Program; hering to the procurement standards (3) Monitor the food service operation under § 210.21, school food authorities through periodic on-site visits; contracting with food service manage- (4) Retain control of the quality, ex- ment companies shall ensure that: tent, and general nature of its food (1) The invitation to bid or request service, and the prices to be charged for proposal contains a 21-day cycle the children for meals; menu developed in accordance with the (5) Retain signature authority on the provisions of § 210.10, to be used as a State agency-school food authority standard for the purpose of basing bids agreement, free and reduced price pol- or estimating average cost per meal. A icy statement and claims; school food authority with no capa- (6) Ensure that all federally donated bility to prepare a cycle menu may, with State agency approval, require foods received by the school food au- that each food service management thority and made available to the food company include a 21-day cycle menu, service management company accrue developed in accordance with the pro- only to the benefit of the school food visions of § 210.10, with its bid or pro- authority’s nonprofit school food serv- posal. The food service management ice and are fully utilized therein; company must adhere to the cycle for (7) Maintain applicable health certifi- the first 21 days of meal service. cation and assure that all State and Changes thereafter may be made with local regulations are being met by a the approval of the school food author- food service management company pre- ity. paring or serving meals at a school (2) Any invitation to bid or request food authority facility; for proposal indicate that nonperform- (8) Establish an advisory board com- ance subjects the food service manage- posed of parents, teachers, and stu- ment company to specified sanctions in dents to assist in menu planning; instances where the food service man- (9) Obtain written approval of invita- agement company violates or breaches tions for bids and requests for pro- contract terms. The school food au- posals before their issuance when re- thority shall indicate these sanctions quired by the State agency. The school in accordance with the procurement food authority must incorporate all provisions stated in § 210.21. State agency required changes to its (c) Contracts. Contracts that permit solicitation documents before issuing all income and expenses to accrue to those documents; and the food service management company (10) Ensure that the State agency has and ‘‘cost-plus-a-percentage-of-cost’’ reviewed and approved the contract and ‘‘cost-plus-a-percentage-of-in- terms and that the school food author- come’’ contracts are prohibited. Con- ity has incorporated all State agency tracts that provide for fixed fees such required changes into the contract or as those that provide for management amendment before any contract or fees established on a per meal basis are amendment to an existing food service allowed. Contractual agreements with management company contract is exe- food service management companies cuted. Any changes made by the school shall include provisions which ensure food authority or a food service man- that the requirements of this section agement company to a State agency are met. Such agreements shall also in- pre-approved prototype contract or clude the following: State agency approved contract term (1) The food service management must be approved in writing by the company shall maintain such records State agency before the contract is ex- as the school food authority will need ecuted. When requested, the school to support its Claim for Reimburse- food authority must submit all pro- ment under this part, and shall, at a curement documents, including re- minimum, report claim information to sponses submitted by potential con- the school food authority promptly at tractors, to the State agency, by the the end of each month. Such records due date established by the State agen- shall be made available to the school cy. food authority, upon request, and shall

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be retained in accordance with which the State per capita income is § 210.23(c). below the per capita income of the (2) The food service management United States. company shall have State or local (b) Private school exemption. No State health certification for any facility in which the State agency is prohibited outside the school in which it proposes by law from disbursing State appro- to prepare meals and the food service priated funds to nonpublic schools management company shall maintain shall be required to match general cash this health certification for the dura- assistance funds expended for meals tion of the contract. served in such schools, or to disburse (3) No payment is to be made for to such schools any of the State reve- meals that are spoiled or unwholesome nues required to meet the requirements at time of delivery, do not meet de- of paragraph (a) of this section. Fur- tailed specifications as developed by thermore, the requirements of this sec- the school food authority for each food tion do not apply to schools in which component specified in § 210.10, or do the Program is administered by a not otherwise meet the requirements of FNSRO. the contract. Specifications shall cover items such a grade, purchase units, (c) Territorial waiver. American style, condition, weight, ingredients, Samoa and the Commonwealth of the formulations, and delivery time. Northern Mariana Islands shall be ex- (d) Duration of contract. The contract empted from the matching require- between a school food authority and ments of paragraph (a) of this section if food service management company their respective matching require- shall be of a duration of no longer than ments are under $100,000. 1 year; and options for the yearly re- (d) Applicable revenues. The following newal of a contract signed after Feb- State revenues, appropriated or used ruary 16, 1988, may not exceed 4 addi- specifically for program purposes tional years. All contracts shall in- which are expended for any school year clude a termination clause whereby ei- shall be eligible for meeting the appli- ther party may cancel for cause with cable percentage of the matching re- 60-day notification. quirements prescribed in paragraph (a) of this section for that school year: [53 FR 29147, Aug. 2, 1988, as amended at 60 FR 31215, June 13, 1995; 65 FR 26912, May 9, (1) State revenues disbursed by the 2000; 72 FR 61491, Oct. 31, 2007] State agency to school food authorities for program purposes, including rev- Subpart D—Requirements for State enue disbursed to nonprofit private schools where the State administers Agency Participation the program in such schools; § 210.17 Matching Federal funds. (2) State revenues made available to school food authorities and transferred (a) State revenue matching. For each by the school food authorities to the school year, the amount of State reve- nonprofit school food service accounts nues appropriated or used specifically or otherwise expended by the school by the State for program purposes food authorities in connection with the shall not be less than 30 percent of the nonprofit school food service program; funds received by such State under sec- and tion 4 of the National School Lunch Act during the school year beginning (3) State revenues used to finance the July 1, 1980; provided that, the State costs (other than State salaries or revenues derived from the operation of other State level administrative costs) such programs and State revenues ex- of the nonprofit school food service pended for salaries and administrative program, i.e.: expenses of such programs at the State (i) Local program supervision; level are not considered in this com- (ii) Operating the program in partici- putation. However, if the per capita in- pating schools; and come of any State is less than the per (iii) The intrastate distribution of capita income of the United States, the foods donated under part 250 of this matching requirements so computed chapter to schools participating in the shall be decreased by the percentage by program.

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(e) Distribution of matching revenues. tion of all school food authorities par- All State revenues made available ticipating in the Program in accord- under paragraph (a) of this section are ance with the provisions of this sec- to be disbursed to school food authori- tion. The term ‘‘administrative re- ties participating in the Program, ex- view’’ is used to reflect a review of cept as provided for under paragraph (b) both critical and general areas in ac- of this section. Distribution of match- cordance with paragraphs (g) and (h) of ing revenues may be made with respect this section, and includes other areas to a class of school food authorities as of Program operations determined by well as with respect to individual the State agency to be important to school food authorities. Program performance. (f) Failure to match. If, in any school (2) Critical areas means the following year, a State fails to meet the State two performance standards described in revenue matching requirement, as pre- detail in paragraph (g) of this section scribed in paragraph (a) of this section, which serve as measures of compliance the general cash assistance funds uti- with Program regulations: lized by the State during that school (i) Performance Standard 1—Certifi- year shall be subject to recall by and cation/Counting/Claiming—All free, re- repayment to FNS. duced price and paid lunches claimed (g) Reports. Within 120 days after the for reimbursement are served only to end of each school year, each State children eligible for free, reduced price agency shall submit an Annual Report and paid lunches, respectively; and of Revenues (FNS–13) to FNS. This re- counted, recorded, consolidated and report identifies the State revenues to be ported through a system which consist- counted toward the State revenue ently yields correct claims. matching requirements specified in (ii) Performance Standard 2—Meal Ele- paragraph (a) of this section. ments. Lunches claimed for reimburse- (h) Accounting system. The State ment within the school food authority agency shall establish or cause to be contain meal elements (food items/ established a system whereby all ex- components, menu items or other pended State revenues counted in items, as applicable) as required under meeting the matching requirements § 210.10. prescribed in paragraph (a) of this sec- (3) Documented corrective action means tion are properly documented and ac- written notification required of the counted for. school food authority to certify that the corrective action required for each § 210.18 Administrative reviews. violation has been completed and to (a) Implementation dates. For the notify the State agency of the dates of school year beginning July 1, 1992, each completion. Documented corrective ac- State agency shall conduct administration may be provided at the time of the tive reviews as prescribed under this review or may be submitted to the section. However, FNS will approve a State agency within specified time- State agency’s written request if FNS frames. determines that the State agency has (4) Follow-up reviews means any demonstrated good cause to delay im- visit(s) to the school food authority plementation of the provisions speci- subsequent to the administrative re- fied under this section to January 1, view to ensure corrective actions are 1993. At State agency discretion, State taken. agencies may begin implementation of (5) General areas means the areas of the provisions of this section on Au- review specified in paragraph (h) of gust 16, 1991. FNS review responsibil- this section. ities are specified under § 210.29 of this (6) Large school food authority means, part. in any State: (b) Definitions. The following defini- (i) All school food authorities that tions are provided in order to clarify participate in the Program and have State agency administrative review re- enrollments of 40,000 children or more quirements: each; or (1) Administrative reviews means the (ii) If there are less than two school initial comprehensive on-site evalua- food authorities with enrollments of

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40,000 or more, the two largest school ministrative reviews of all school food food authorities that participate in the authorities at least once during each 5- Program and have enrollments of 2,000 year review cycle; provided that each children or more each. school food authority is reviewed at (7) Participation factor means the per- least once every 6 years. The on-site centages of children approved by the portion of the administrative review school for free lunches, reduced price shall be completed during the school lunches, and paid lunches, respectively, year in which the review was begun. who are participating in the Program. (2) Expanded review cycle. State agen- The free participation factor is derived cies are encouraged to conduct admin- by dividing the number of free lunches istrative reviews of large school food claimed for any given period by the authorities and of any school food au- product of the number of children ap- thorities which may benefit from a proved for free lunches for the same pe- more frequent interval than the min- riod times the operating days in that imum 5-year cycle required in para- period. A similar computation is used graph (c)(1) of this section. to determine the reduced price and (3) Exceptions. FNS may, on an indi- paid participation factors. The number vidual school food authority basis, ap- of children approved for paid lunches is prove written requests for 1-year exten- derived by subtracting the number of sions to the 6-year review interval children approved for free and reduced specified in paragraph (c)(1) of this sec- price lunches for any given period from tion if FNS determines this require- the total number of children enrolled ment conflicts with efficient State in the reviewed school for the same pe- agency management of the Program. riod of time, if available. If such enroll- (4) Follow-up reviews. The State agen- ment figures are not available, the cy is encouraged to conduct first fol- most recent total number of children low-up reviews in the same school year enrolled shall be used. If school food as the administrative review; but in no authority participation factors are un- event shall first follow-up reviews be available or unreliable, State-wide data shall be employed. conducted later than December 31 of (8) Review period means the period of the school year following the adminis- time covered by the administrative re- trative review. Subsequent follow-up view or follow-up review. The review reviews shall be scheduled in accord- period is specified in paragraph (f)(2) of ance with paragraph (i)(5) of this sec- this section. tion. (9) Review threshold means the degree (d) Scheduling school food authorities. of error in a critical area of review The State agency shall use its own cri- which, if exceeded during an adminis- teria to schedule school food authori- trative review or follow-up review of a ties for administrative reviews; pro- school food authority, may trigger a vided that the requirements of para- follow-up review of that school food au- graph (c) of this section are met. State thority. agencies are encouraged to take into (10) Small school food authority means, consideration the findings of the in any State, a school food authority claims review process required under that participates in the Program and is § 210.8(b)(2) of this part in the selection not a large school food authority, as of school food authorities. defined in this section. (1) Schedule of reviews. To ensure no (c) Timing of reviews. The first year of unintended overlap occurs, the State the first 5-year review cycle began on agency shall inform FNS of the antici- July 1, 1992, or as otherwise authorized pated schedule of school food authority under paragraph (a) of this section and reviews upon request. shall end on June 30, 1994. For each (2) Reporting follow-up review activity. State agency, the first 5-year review At such time as the State agency de- cycle shall end on June 30, 1998. Admin- termines that a follow-up review is istrative reviews and follow-up reviews needed, the State agency shall notify shall be conducted as follows: FNS of the names of those large school (1) Administrative reviews. At a min- food authorities exceeding any one of imum, State agencies shall conduct ad- the critical area review thresholds

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specified in paragraph (i) of this sec- and a free participation factor of 77 tion. percent or more; and (3) Exceptions. In any school year in (C) Combination schools with a free which FNS or OIG conducts a review or average daily participation of 100 or investigation of a school food author- more and a free participation factor of ity in accordance with § 210.19(a)(5) of 87 percent or more. A combination this part, the State agency shall, un- school means a school with a mixture less otherwise authorized by FNS, of elementary and secondary grades. delay conduct of a scheduled adminis- (ii) When the number of schools se- trative review until the following lected on the basis of the criteria es- school year. The State agency shall tablished in paragraph (A) through document any exception authorized paragraph (C) of this paragraph are not under this paragraph. sufficient to meet the minimum num- (e) Number of schools to review. The ber of schools required under paragraph State agency is encouraged to review (e)(1) of this section, the schools se- all schools meeting the school selec- lected for review shall be selected on tion criteria specified in paragraph the basis of State agency criteria (e)(1) of this section. At a minimum, which may include low participation the State agency shall review the num- schools, recommendations from a food ber of schools specified in paragraph service director based on findings from (e)(1) of this section and shall select the on-site visits or the claims review the schools to be reviewed on the basis process required under § 210.8(a) of this of the school selection criteria speci- part; or any school in which the daily fied in paragraph (e)(2) of this section. lunch counts appear questionable, e.g., (1) Minimum number of schools. Except identical or very similar claiming pat- for residential child care institutions, terns, and/or large changes in free the State agency shall review all lunch counts. schools with a free average daily par- (3) Pervasive problems. If the State ticipation of 100 or more and a free par- agency review finds pervasive problems ticipation factor of 100 percent or in a school food authority, FNS may more. In no event shall the State agen- authorize the State agency to cease re- cy review less than the minimum num- view activities prior to reviewing the ber of schools illustrated in table A: required number of schools under paragraph (e)(1) of this section. Where FNS TABLE A authorizes the State agency to cease review activity, FNS may either con- No. of schools in the school food author- Minimum no. of schools to be re- duct the review activity itself or refer ity viewed the school food authority to OIG. 1 to 5 ...... 1 (f) Scope of review. During the course 6 to 10 ...... 2 of an administrative review, each State 11 to 20 ...... 3 21 to 40 ...... 4 agency shall monitor compliance with 41 to 60 ...... 6 the critical and general areas identi- 61 to 80 ...... 8 fied in paragraphs (g) and (h) of this 81 to 100 ...... 10 section. 1 101 or more ...... 12 (1) Review form. State agencies shall 1 Twelve plus 5 percent of the number of schools over 100. use the administrative review form Fractions shall be rounded to the nearest whole number. prescribed by FNS for the critical areas (2) School selection criteria. (i) Selec- of review specified in paragraph (g) of tion of additional schools to meet the this section. State agencies may use minimum number of schools required their own administrative review form under paragraph (e)(1) of this section, for the general areas of review speci- shall be based on the following criteria: fied in paragraph (h) of this section. (A) Elementary schools with a free (2) Review period. (i) The review pe- average daily participation of 100 or riod for administrative reviews and fol- more and a free participation factor of low-up reviews shall cover, at a min- 97 percent or more; imum, the most recent month for (B) Secondary schools with a free av- which a Claim for Reimbursement was erage daily participation of 100 or more submitted; provided that such Claim

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for Reimbursement covers at least 10 (i) Review all approved free and re- operating days. duced price applications for children in (ii) Subject to FNS approval, the the reviewed schools back to the begin- State agency may conduct a review ning of the school year to determine early in the school year, prior to the whether each child’s application is submission of a Claim for Reimburse- complete and correctly approved in ac- ment. In such cases, the review period cordance with all applicable provisions shall be the prior month of operation of 7 CFR part 245; or in the current school year, provided (ii) Review all approved free and re- that such month includes at least 10 duced price applications effective for operating days. the review period for children in the re- (3) Audit findings. To prevent duplica- viewed schools; or tion of effort, the State agency may (iii) Review all approved free and re- use any recent and currently applicable duced price applications effective on findings from Federally-required audit the day(s) the review is conducted for activity or from any State-imposed children in the reviewed schools. audit requirements. Such findings may (2) In lieu of reviewing all of the free be used only insofar as they pertain to and reduced price applications as re- the reviewed school(s) or the overall quired under paragraph (g)(1)(i)(A)(1) of operation of the school food authority this section, the State agency may re- and they are relevant to the review pe- view a statistically valid sample of riod. The State agency shall document those applications. If the State agency the source and the date of the audit. chooses to review a statistically valid (g) Critical areas of review. The per- sample of applications, the State agen- formance standards listed in this para- cy shall ensure that the sample size is graph are deemed critical since compli- large enough so that there is a 95 per- ance in these areas is directly linked to cent chance that the actual error rate the service of a reimbursable lunch. for all applications is not less than 2 (1) Performance Standard 1 (All free, re- percentage points less than the error duced price and paid lunches claimed for rate found in the sample (i.e., the lower reimbursement are served only to children bound of the one-sided 95 percent con- eligible for free, reduced price and paid fidence interval is no more than 2 per- lunches, respectively; and are counted, re- centage points less than the point esti- corded, consolidated and reported through mate). In addition, the State agency a system which consistently yields correct shall determine the need for follow-up claims.) The State agency shall deter- reviews and base fiscal action upon the mine that the free and reduced price error rate found in the sample. eligibility determinations are correct. (3) Evaluate whether the previous In addition, the State agency shall de- year’s eligibility determinations are termine that for each day of operation used after 30 operating days following for the review period, the number of the first day of school, or as otherwise free, reduced price and paid lunches established by the State agency; pro- claimed for each reviewed school is not vided that the State agency-developed more than the number of lunches timeframe does not exceed the 30 oper- served to children eligible for free, re- ating day limit. duced price and paid lunches, respec- (4) In the case where children are de- tively, in those schools for the review termined eligible for free lunches based period. The State agency shall also de- on documentation from the local food termine that a lunch counting system stamp, Food Distribution Program on is being used which accurately counts, Indian Reservations (FDPIR) or Tem- records, consolidates and reports the porary Assistance for Needy Families reimbursable lunches served, by type. (TANF) office which certifies that the (i) For each school reviewed, the children are currently members of State agency shall: households receiving benefits under the (A) Determine the number of children Food Stamp Program, FDPIR or eligible for free, reduced price and paid TANF, determine that the certification lunches, by type, for the review period. from the Food Stamp Program, FDPIR To make this determination: or TANF is official; all the information (1) The State agency shall: required under § 245.6 of this part is

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complete; and such children were en- dated, recorded, and reported by the rolled in the school under review dur- school food authority on the Claim for ing the review period. Reimbursement. (B) Evaluate the system for issuing (2) Performance Standard 2 (Lunches benefits and updating eligibility status claimed for reimbursement within the by validating the mechanism(s) the re- school food authority contain meal ele- viewed school uses to provide benefits ments (food items/components, menu items to eligible children, e.g., master list. or other items, as applicable) as required The State agency shall determine under § 210.10. For each school re- whether the system is adequate and, viewed, the State agency must: within the timeframes established in (i) For the day of the review, observe § 210.7(c)(1)(ii)(B), reflects changes due the serving line(s) to determine wheth- to verification findings, transfers, re- er all required meal elements (food ported changes in household size or in- items/components, menu items or come, or from a household’s decision to other items, as applicable) as required decline school lunch benefits or any no- under § 210.10 are offered. tification from the household that it is (ii) For the day of the review, observe no longer certified to receive food a significant number of the Program stamp, Food Distribution Program for lunches counted at the point of service Households on Indian Reservations for each type of serving line, to deter- (FDPIR) or Temporary Assistance for mine whether those lunches contain Needy Families (TANF) benefits. the required number of meal elements (C) Determine whether the lunch (food items/components, menu items or counting system yields correct claims. other items, as applicable) as required At a minimum, the State agency shall under § 210.10. determine whether: (iii) Review menu records for the re- (1) The daily lunch counts, by type, view period to determine whether all for the review period are more than the required meal elements (food items/ product of the number of children de- components, menu items or other termined by the school/school food au- items, as applicable) as required under thority to be eligible for free, reduced § 210.10 have been offered. price, and paid lunches for the review (h) General areas of review. The gen- period times an attendance factor. If eral areas listed in this paragraph re- the lunch count, for any type, appears flect major Program requirements. The questionable or significantly exceeds general areas of review shall include, the product of the number of eligibles, but are not limited to, the following for that type, times an attendance fac- areas: tor, documentation showing good cause (1) Free and reduced price process. In must be available for review by the the course of the review of each school State agency. food authority, the State agency shall: (2) Each type of food service line pro- (i) Review the implementation of the vides accurate point of service lunch free and reduced price policy statement counts, by type, and those lunch counts to ensure it is implemented as ap- are correctly counted and recorded. If proved. an alternative counting system is em- (ii) Evaluate whether the required ployed (in accordance with § 210.7(c)(2)), minimum number of applications are the State agency shall ensure that it verified with respect to the selection provides accurate counts of reimburs- method used. able lunches, by type, and is correctly (iii) Determine that applications for implemented as approved by the State verification are selected in accordance agency. with the applicable procedures in (3) All lunches are correctly counted, § 245.6a(c) of this chapter and that no recorded, consolidated and reported for discrimination exists in the selection the day they are served. process. (ii) For each school food authority (iv) Establish that verification is reviewed, the State agency shall review completed by November 15 (or other lunch count records to ensure that the date established in accordance with lunch counts submitted by each re- § 245.6a(b)(2)(i) or (b)(2)(ii) of this chap- viewed school are correctly consoli- ter) including any follow-up activities

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as required in § 245.6a(f)(6) of this chap- (5) Reporting and recordkeeping. The ter. If the administrative review occurs State agency shall determine that the prior to the November 15 deadline, the school food authority submits reports State agency shall evaluate the and maintains records as required verification activities that have oc- under 7 CFR parts 210 and 245. curred to date and assess whether these (i) Follow-up reviews. All school food activities represent a good faith effort authorities found to have a critical that will result in compliance with the area violation in excess of any one of requirements of § 245.6a of this title. the review thresholds specified in this (v) Confirm that the verification paragraph are subject to follow-up re- process is complete for each applica- views. State agencies shall notify FNS tion verified by or on behalf of the re- of the names of large school food au- viewed schools. Verification is consid- thorities exceeding critical area review ered complete either when a child’s eli- thresholds in accordance with para- gibility for the level of benefits for graph (d)(2) of this section. The State which he or she was approved is con- agency shall conduct a first follow-up firmed, changed to a higher level of review of any large school food author- benefit, or a letter of adverse action ity found on an administrative review has been sent. to have critical area violations in ex- (vi) Ensure that verification records cess of any one of the review thresh- are maintained as required by § 245.6a(i) olds. State agencies shall also conduct of this chapter. a first follow-up review of at least 25 (vii) Determine that, for each re- percent of the small school food au- viewed school, the lunch count system thorities found on a review to have does not overtly identify children eligi- critical area violations in excess of any ble for free and reduced price lunches. one of the review thresholds. State (viii) Review a representative sample agencies shall conduct additional fol- of denied applications to evaluate low-up reviews of any school food au- whether the determining official cor- thority which has a critical area viola- rectly denied applicants for free and re- tion exceeding a review threshold on duced price lunches. the first follow-up or any subsequent (2) Food quantities. For each school follow-up review regardless of whether reviewed, the State agency must ob- such review is conducted by FNS or the serve a significant number of Program State agency. lunches counted at the point of service (1) Selection of small school food au- for each type of serving line to deter- thorities. In determining which small mine whether those lunches appear to school food authorities to include in provide meal elements (food items/ the follow-up review sample, State components, menu items or other agencies shall select those school food items, as applicable) in the quantities authorities which have the most seri- required under § 210.10. If visual obser- ous problems, including, but not lim- vation suggests that quantities are in- ited to, systemic accountability prob- sufficient, the State agency shall re- lems, large overclaims, significant quire the reviewed schools to provide lunch pattern violations, etc. documentation demonstrating that the (2) Selection of schools. (i) If the crit- required amounts of food were avail- ical area violation(s) responsible for able for service for each day of the re- follow-up review activity are limited to view period. school food authority level problems (3) Civil rights. The State agency shall (e.g. centralized application processing examine the school food authority’s or centralized kitchen), the State agen- compliance with the civil rights provi- cy may limit the follow-up review to sions specified in § 210.23(b) of this part. the school food authority level. (4) Monitoring responsibilities. The (ii) If the critical area violation(s) re- State agency shall ensure that the sponsible for follow-up review activity school food authority conducts on-site were identified in the review of a reviews in accordance with § 210.8(a)(1) school(s), then State agencies shall re- of this part and monitors claims in ac- view at least the minimum number of cordance with § 210.8(a)(2) and (a)(3) of schools required under paragraph (e)(1) this part. of this section. State agencies shall

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meet the minimum number of schools TABLE B—Continued requirement by selecting those schools Number of found, on a previous review, to have schools vio- significant critical area violations. If Number of schools reviewed lating performance any additional schools must be selected standard 1 to meet the minimum required number, the State agency shall select from 101 or more ...... 11* those schools which meet State agen- * 11 plus the number identified above for the appropriate cy-developed criteria identified under increment. paragraph (e)(2)(ii) of this section. (ii) For Performance Standard 2—10 (3) Review thresholds. The review percent or more of the total number of thresholds apply only to the critical Program lunches observed in a school areas of review and are designed to food authority are missing one or more limit follow-up reviews to those school of the required meal elements (food food authorities with serious problems. items/components, menu items or The provisions of paragraph (i) of this other items, as applicable) as required section apply when: under § 210.10. (i) For Performance Standard 1— (4) Scope of follow-up reviews. On any (A) A number of the reviewed schools follow-up review, the State agency is in a school food authority, as specified encouraged to review all of the critical in Table B, have an inadequate system and general areas of review specified in for certification, issuing benefits or up- paragraph (g) and (h) of this section for dating eligibility status; or for count- those schools which were not reviewed ing, recording, consolidating or report- during the administrative review. At a ing lunches, by type; or minimum, the State agency shall: (B) The school food authority has an (i) For each school selected for re- inadequate system for consolidating view (or for the school food authority, lunch counts, by type, or for reporting as applicable,) review the critical areas claims; or, if applicable, for certifi- for which the review thresholds were cation, issuing benefits or updating eli- exceeded by the school food authority gibility status. on a previous review; (C) At the school and school food au- (ii) Determine whether the school thority level, a system for certifi- food authority has satisfactorily com- cation, issuing benefits or updating eli- pleted the corrective actions in accord- gibility status is inadequate if 10 per- ance with paragraph (k) of this section cent or more (but not less than 100 required for both critical and general lunches) of the free and reduced price areas within the timeframes estab- lunches claimed for the review period lished by the State agency; (for any school reviewed) are claimed (iii) Evaluate whether these correc- incorrectly due to errors of certifi- tive actions resolved the problem(s); cation, benefit issuance or updating of and eligibility status. (iv) If the State agency did not evaluate the certification, count and milk/ TABLE B meal service procedures for the School Number of Breakfast Program (7 CFR part 220) schools vio- and/or the Special Milk Program for Number of schools reviewed lating performance Children (7 CFR part 215) or offering standard 1 meal supplements in after hour care programs (7 CFR part 210) in those 1 to 5 ...... 1 6 to 10 ...... 2 schools selected for the administrative 11 to 20 ...... 3 review and participating in those Pro- 21 to 30 ...... 4 grams, the State agency shall do so for 31 to 40 ...... 5 those schools selected for the first fol- 41 to 50 ...... 6 low-up review. 51 to 60 ...... 7 (5) Critical area violations identified in 61 to 70 ...... 8 71 to 80 ...... 9 a follow-up review. Critical area viola- 81 to 90 ...... 10 tions identified on a follow-up review 91 to 100 ...... 11 shall be addressed as follows:

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(i) If, during a follow-up review, the (i) If, during a follow-up review, the State agency determines, that correc- State agency determines that corrective actions have not been satisfac- tive actions have not been taken in ac- torily completed in accordance with cordance with the documented correc- the documented corrective action, the tive action, the State agency shall State agency shall: require the school withhold Program payments in accord- food authority to resolve the problems ance with paragraph (l) of this section, and to submit documented corrective until such time as the State agency re- action to the State agency ; take fiscal ceives adequate documented corrective action for critical area violations as action. specified in paragraph (m) of this sec- (ii) If the State agency determines tion; and withhold Program payments that the corrective actions taken did in accordance with paragraph (l) of this not effectively resolve the problem, or section, until such time as a follow-up if new general area violations are ob- review, requested by the school food served on a follow-up review, the State authority, indicates the problem has agency shall require the school food been corrected. If the State agency de- authority to resolve the problem and termines that the corrective actions to submit documented corrective ac- have been completed as specified in the tion to the State agency within speci- documented corrective action, but fied timeframes. If adequate docu- those corrective actions do not effec- mented corrective action is not re- tively resolve the problem, the State ceived within those timeframes, the agency shall follow the requirements State agency shall withhold Program for new critical area violations speci- payments in accordance with para- fied in paragraphs (i)(5)(ii) and (iii) of graph (l) of this section, until such this section. time as adequate documented corrective action is received. (ii) If new critical area violations are (7) Exceptions. FNS may, on an indi- observed that exceed a review thresh- vidual school food authority basis, ap- old, the State agency shall: Require prove written requests for exceptions the school food authority to resolve to the follow-up review requirement the problems and to submit docu- specified in paragraph (i)(1) of this sec- mented corrective action to the State tion if FNS determines that the re- agency; take fiscal action as specified quirement conflicts with efficient in paragraph (m) of this section; and State agency management of the pro- conduct a follow-up review within 6 op- gram. erating months of the first follow-up (j) Exit conference and notification. review. The State agency shall hold an exit (iii) If new critical area violations conference at the close of the adminis- are observed which do not exceed re- trative review and of any subsequent view thresholds, the State agency follow-up review to discuss the viola- shall: Require the school food author- tions observed, the extent of the viola- ity to resolve the problem and to sub- tions and a preliminary assessment of mit documented corrective action to the actions needed to correct the viola- the State agency within specified time- tions. The State agency shall discuss frames; and take fiscal action in ac- an appropriate deadline(s) for comple- cordance with paragraph (m) of this tion of corrective action, provided that section. If adequate documented cor- the deadline(s) results in the comple- rective action is not received within tion of corrective action on a timely those timeframes, the State agency basis. After every review, the State shall withhold Program payments in agency shall provide written notifica- accordance with paragraph (l) of this tion of the review findings to the section, until such time as adequate school food authority’s Superintendent documented corrective action is re- (or equivalent in a non-public school ceived. food authority) or authorized rep- (6) General area violations identified in resentative. The written notification a follow-up review. General area viola- shall include the review findings, the tions identified in a follow-up review needed corrective actions, the dead- shall be addressed as follows: lines for completion of the corrective

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action, and the potential fiscal action. or submitted to the State agency no As a part of the denial of all or a part later than 30 days from the deadline for of a Claim for Reimbursement or with- completion of each required corrective holding payment in accordance with action, as specified under paragraph (j) the provisions of this section, the State of this section or as otherwise extended agency shall provide the school food by the State agency under paragraph authority a written notice which de- (k)(1) of this section. The State agency tails the grounds on which the denial shall maintain any documented correc- of all or a part of the Claim for Reim- tive action on file for review by FNS. bursement or withholding payment is (l) Withholding payment. At a min- based. This notice, which shall be sent imum, the State agency shall withhold by certified mail, return receipt re- Program payments to a school food au- quested, shall also include a statement thority as follows: indicating that the school food author- (1) Cause. (i) The State agency shall ity may appeal the denial of all or a withhold all Program payments to a part of a Claim for Reimbursement or school food authority if documented withholding payment and the entity corrective action for critical area vio- (i.e., FNS or State agency) to which lation(s) which exceed the review the appeal should be directed. The threshold(s) is not provided within the State agency shall notify the school deadlines specified in paragraph (k)(2) food authority, in writing, of the ap- of this section; and/or peal procedures as specified in (ii) The State agency shall withhold § 210.18(q) for appeals of State agency all Program payments to a school food findings, and for appeals of FNS find- authority if, in the event that a follow- ings, provide a copy of § 210.29(d)(3) of up review is not conducted, the State the regulations. agency finds that corrective action for (k) Corrective action. Corrective ac- a critical area violation which exceed- tion is required for any violation under ed the review threshold was not com- either the critical or general areas of pleted within the deadlines specified in the review. Corrective action shall be paragraph (j) of this section or as oth- applied to all schools in the school food erwise extended by the State agency authority, as appropriate, to ensure under paragraph (k)(1) of this section; that previously deficient practices and and/or procedures are revised system-wide. (iii) The State agency shall withhold Corrective actions may include train- all Program payments to a school food ing, technical assistance, recalculation authority if, on a follow-up review, the of data to ensure the correctness of any State agency finds a critical area vio- claim that the school food authority is lation which exceeded the review preparing at the time of the review, or threshold on a previous review and con- other actions. Fiscal action shall be tinues to exceed the review threshold taken in accordance with paragraph on a follow-up review. (m) of this section. (iv) The State agency may withhold (1) Extensions of the timeframes. If ex- payments at its discretion, if the State traordinary circumstances arise where agency finds that documented correc- a school food authority is unable to tive action is not provided within the complete the required corrective ac- deadlines specified in paragraph (k)(2) tion within the timeframes specified by of this section, that corrective action the State agency, the State agency is not complete or that corrective ac- may extend the timeframes upon writ- tion was not taken as specified in the ten request of the school food author- documented corrective action for a ity. general area violation or for a critical (2) Documented corrective action. Docu- area violation which did not exceed the mented corrective action is required review threshold. for any degree of violation of general (2) Duration. In all cases, Program or critical areas identified in an admin- payments shall be withheld until such istrative review or on any follow-up re- time as corrective action is completed, view. Documented corrective action and documented corrective action is may be provided at the time of the re- received and deemed acceptable by the view; however, it shall be postmarked State agency or as otherwise specified

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in paragraph (i)(5) of this section. Sub- sions identified under § 210.19(c) of this sequent to the State agency’s accept- part. ance of the corrective actions (and a (n) Miscellaneous reporting require- follow-up review, when required), payment. Each State agency shall report to ments will be released for all lunches FNS the results of reviews by March 1 served in accordance with the provi- of each school year, on a form des- sions of this part during the period the ignated by FNS. In such annual re- payments were withheld. In very seri- ports, the State agency shall include ous cases, the State agency will evalu- the results of all administrative re- ate whether the degree of non-compli- views and follow-up reviews conducted ance warrants termination in accord- in the preceding school year. ance with § 210.25 of this part. (o) Summary of reporting requirements. (3) Exceptions. The State agency may, Each State agency shall report to FNS: at its discretion, reduce the amount re- (1) The names of those large school quired to be withheld from a school food authorities exceeding any one of food authority pursuant to paragraph the critical area review thresholds as (l)(1)(i) through (iii) of this section by described in paragraph (d)(2) of this as much as 60 percent of the total Pro- section. gram payments when it is determined (2) The results of reviews by March 1 to be in the best interest of the Pro- of each school year on a form des- gram. FNS may authorize a State ignated by FNS, as specified under agency to limit withholding of funds to paragraph (n) of this section. an amount less than 40 percent of the (p) Recordkeeping. Each State agency total Program payments, if FNS deter- shall keep records which document the mines such action to be in the best in- details of all reviews and demonstrate terest of the Program. the degree of compliance with the crit- (4) Failure to withhold payments. FNS ical and general areas of review. may suspend or withhold Program pay- Records shall be retained by the State ments, in whole or in part, to those agency as specified in § 210.23(c) of this State agencies failing to withhold Pro- part. Such records shall include docu- gram payments in accordance with mentation of administrative reviews paragraph (l)(1) of this section and may and follow-up reviews. As appropriate, withhold administrative funds in ac- the records shall include documented cordance with § 235.11(b) of this title. corrective action, and documentation The withholding of Program payments of withholding of payments and fiscal will remain in effect until such time as action, including recoveries made. Ad- the State agency documents compli- ditionally, the State agency must have ance with paragraph (l)(1) of this sec- on file: tion to FNS. Subsequent to the docu- (1) Criteria for selecting schools on mentation of compliance, any withheld first and follow-up reviews in accord- administrative funds will be released ance with paragraphs (e)(2)(ii) and and payment will be released for any (i)(2)(ii) of this section. lunches served in accordance with the (2) Its system for selecting small provisions of this part during the pe- school food authorities for follow-up riod the payments were withheld. reviews in accordance with paragraph (m) Fiscal action. For purposes of the (i)(1) of this section. critical areas of the administrative re- (3) Documentation demonstrating view and any follow-up reviews, fiscal compliance with the statistical sam- action is required for all violations of pling requirements in accordance with Performance Standards 1 and 2. Except paragraph (g)(1)(i)(A)(1) of this section, that, on an administrative review, the if applicable. State agency may limit fiscal action (q) School food authority appeal of from the point corrective action occurs State agency findings. Except for FNS- back through the beginning of the re- conducted reviews authorized under view period for errors identified under § 210.29(d)(2), each State agency shall paragraphs (g)(1)(i)(A) and (g)(1)(i)(B) establish an appeal procedure to be fol- of this section, provided corrective ac- lowed by a school food authority re- tion occurs. Fiscal action shall be questing a review of a denial of all or a taken in accordance with the provi- part of the Claim for Reimbursement

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or withholding payment arising from schedule the hearing. A representative administrative or follow-up review ac- of the State agency shall be allowed to tivity conducted by the State agency attend the hearing to respond to the under § 210.18 of this part. State agen- appellant’s testimony and to answer cies may use their own appeal proce- questions posed by the review official; dures provided the same procedures are (3) If the appellant has requested a applied to all appellants in the State hearing, the appellant and the State and the procedures meet the following agency shall be provided with at least requirements: appellants are assured of 10 calendar days advance written no- a fair and impartial hearing before an independent official at which they may tice, sent by certified mail, return re- be represented by legal counsel; deci- ceipt requested, of the time, date and sions are rendered in a timely manner place of the hearing; not to exceed 120 days from the date of (4) Any information on which the the receipt of the request for review; State agency’s action was based shall appellants are afforded the right to ei- be available to the appellant for in- ther a review of the record with the spection from the date of receipt of the right to file written information, or a request for review; hearing which they may attend in per- (5) The review official shall be an son; and adequate notice is given of the independent and impartial official time, date, place and procedures of the other than, and not accountable to, hearing. If the State agency has not es- any person authorized to make deci- tablished its own appeal procedures or sions that are subject to appeal under the procedures do not meet the above the provisions of this section; listed criteria, the State agency shall (6) The review official shall make a observe the following procedures at a minimum: determination based on information (1) The written request for a review provided by the State agency and the shall be postmarked within 15 calendar appellant, and on Program regulations; days of the date the appellant received (7) Within 60 calendar days of the the notice of the denial of all or a part State agency’s receipt of the request of the Claim for Reimbursement or for review, by written notice, sent by withholding of payment, and the State certified mail, return receipt re- agency shall acknowledge the receipt quested, the review official shall in- of the request for appeal within 10 cal- form the State agency and the appel- endar days; lant of the determination of the review (2) The appellant may refute the ac- official. The final determination shall tion specified in the notice in person take effect upon receipt of the written and by written documentation to the notice of the final decision by the review official. In order to be consid- school food authority; ered, written documentation must be (8) The State agency’s action shall filed with the review official not later remain in effect during the appeal than 30 calendar days after the appel- process; lant received the notice. The appellant (9) The determination by the State may retain legal counsel, or may be review official is the final administra- represented by another person. A hearing shall be held by the review official tive determination to be afforded to in addition to, or in lieu of, a review of the appellant. written information submitted by the (r) FNS review activity. The term appellant only if the appellant so speci- ‘‘State agency’’ and all the provisions fies in the letter of request for review. specified in paragraphs (a)–(h) of this Failure of the appellant school food section refer to FNS when FNS con- authority’s representative to appear at ducts administrative reviews or follow- a scheduled hearing shall constitute up reviews in accordance with the appellant school food authority’s § 210.29(d)(2). FNS will notify the State waiver of the right to a personal ap- agency of the review findings and the pearance before the review official, unless the review official agrees to re-

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need for corrective action and fiscal ac- with technical assistance visits, other tion. The State agency shall pursue reviews, or separately. any needed follow-up activity. (B) The type of evaluation conducted [56 FR 32942, July 17, 1991; 56 FR 55527, Oct. by the State agency shall be deter- 28, 1991, as amended at 57 FR 38584, Aug. 26, mined by the menu planning approach 1992; 57 FR 40729, Sept. 4, 1992; 59 FR 1894, chosen by the school food authority. At Jan. 13, 1994; 60 FR 31215, June 13, 1995; 60 FR a minimum, the State agency shall re- 57147, Nov. 14, 1995; 64 FR 50740, 50741, Sept. view at least one school for each type 20, 1999; 64 FR 72471, Dec. 28, 1999; 65 FR 26922, of menu planning approach used in the May 9, 2000; 73 FR 76858, Dec. 18, 2008] school food authority. EFFECTIVE DATE NOTE: At 74 FR 66216, Dec. (C) In addition, State agencies are 15, 2009, § 210.18 was amended by adding para- encouraged to review breakfasts of- graph (h)(6), effective January 14, 2010. For fered under the School Breakfast Pro- the convenience of the user, the added text is gram as well if the school food author- set forth as follows: ity requires technical assistance from § 210.18 Administrative reviews. the State agency to meet the nutrition standards or if corrective action is * * * * * needed. Such review shall determine compliance with the appropriate re- (h) * * * (6) Food safety. The State Agency must ex- quirements in § 220.13(f)(3) of this chap- amine records to confirm that each school ter and may be done at the time of the food authority under its jurisdiction meets initial review or as part of a follow-up the food safety requirements of § 210.13. to assess compliance with the nutrition standards. * * * * * (ii) At a minimum, State agencies shall conduct evaluations of compli- § 210.19 Additional responsibilities. ance with the nutrition standards in (a) General Program management. Each §§ 210.10 and 220.8 of this Chapter at State agency shall provide an adequate least once during each 5-year review number of consultative, technical and cycle provided that each school food managerial personnel to administer authority is evaluated at least once programs and monitor performance in every 6 years, except that the first cycle complying with all Program require- shall begin July 1, 1996, and shall end ments. on June 30, 2003. The compliance eval- (1) Compliance with nutrition stand- uation for the nutrition standards shall ards. (i) Beginning with School Year be conducted on the menu for any week 1996–1997, State agencies shall evaluate of the current school year in which compliance, over the school week, with such evaluation is conducted. The week the nutrition standards for lunches selected must continue to represent and, as applicable, for breakfasts. Re- the current menu planning ap- view activity may be confined to proach(es). lunches served under the Program un- (iii) For school food authorities less a menu planning approach is used choosing the nutrient standard or as- exclusively in the School Breakfast sisted nutrient standard menu plan- Program or unless the school food au- ning approaches provided in § 210.10(i), thority only offers breakfasts under § 210.10(j), § 220.8(e) or § 220.8(f) of this the School Breakfast Program. For chapter, or developed under the proce- lunches, compliance with the require- dures in § 210.10(l) or § 220.8(h) of this ments in § 210.10(b) and § 210.10(c), (d), chapter, the State agency shall assess or (i)(1) or the procedures developed the nutrient analysis to determine if under § 210.10(l), as applicable, is as- the school food authority is properly sessed. For breakfasts, see § 220.13(f)(3) applying the methodology in these of this chapter. paragraphs, as applicable. Part of this (A) These evaluations may be con- assessment shall be an independent re- ducted at the same time a school food view of menus and production records authority is scheduled for an adminis- to determine if they correspond to the trative review in accordance with analysis conducted by the school food § 210.18. State agencies may also con- authority and if the menu, as offered, duct these evaluations in conjunction over a school week, corresponds to the

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nutrition standards set forth in or § 220.8(h) of this chapter, whichever § 210.10(b) and the appropriate calorie is appropriate. and nutrient levels in § 210.10(c) or (vii) If a school food authority fails § 210.10(i)(1), whichever is applicable. to meet the terms of the corrective ac- (iv) For school food authorities tion plan, the State agency shall deter- choosing the food-based menu planning mine if the school food authority is approaches provided in § 210.10(k) or working in good faith towards compli- § 220.8(g) of this chapter or developed ance and, if so, may renegotiate the under the procedures in § 210.10(l) or corrective action plan, if warranted. § 220.8(h) of this chapter, the State However, if the school food authority agency must determine if the nutrition has not been acting in good faith to standards in §§ 210.10 and 220.8 of this meet the terms of the corrective action chapter are met. The State agency plan and refuses to renegotiate the shall conduct a nutrient analysis in ac- plan, the State agency shall determine cordance with the procedures in if a disallowance of reimbursement § 210.10(i) or § 220.8(e) of this chapter, as funds as authorized under paragraph (c) appropriate, except that the State of this section is warranted. agency may: (2) Assurance of compliance for fi- (A) Use the nutrient analysis of any nances. Each State agency shall ensure school or school food authority that of- that school food authorities comply fers lunches or breakfasts using the with the requirements to account for food-based menu planning approaches all revenues and expenditures of their provided in §§ 210.10(k) and 220.8(g) of nonprofit school food service. School this chapter and that conducts its own food authorities shall meet the require- nutrient analysis under the criteria for ments for the allowability of nonprofit such analysis established in §§ 210.10 school food service expenditures in ac- and 220.8 of this chapter for the nutri- cordance with this part and, 7 CFR part ent standard and assisted nutrient 3015 and 7 CFR part 3016, or 7 CFR part standard menu planning approaches; or 3019, as applicable. All costs resulting (B) Develop its own method for com- from contracts that do not meet the re- pliance reviews, subject to USDA ap- quirements of this part are unallowable proval. nonprofit school food service account (v) If the menu for the school week expenses. When the school food author- fails to comply with the nutrition ity fails to incorporate State agency standards specified in § 210.10(b) and/or required changes to solicitation or con- § 220.8(a) and the appropriate nutrient tract documents, all costs resulting levels in either § 210.10(c), § 210.10(d), or from the subsequent contract award § 210.10(i)(1) whichever is applicable, are unallowable charges to the non- and/or § 220.8(b), § 220.8(c) or § 220.8(e)(1) profit school food service account. The of this chapter, whichever is applica- State agency shall ensure compliance ble, the school food authority shall de- with the requirements to limit net velop, with the assistance and concur- cash resources and shall provide for ap- rence of the State agency, a corrective proval of net cash resources in excess action plan designed to rectify those of three months’ average expenditures. deficiencies. The State agency shall Each State agency shall monitor, monitor the school food authority’s through review or audit or by other execution of the plan to ensure that means, the net cash resources of the the terms of the corrective action plan nonprofit school food service in each are met. school food authority participating in (vi) For school food authorities fol- the Program. In the event that net lowing an alternate approach as pro- cash resources exceed 3 months’ aver- vided under § 210.10(l) or § 220.8(h) of age expenditures for the school food this chapter that does not allow for use authority’s nonprofit school food serv- of the monitoring procedures in para- ice or such other amount as may be ap- graphs (a)(1)(ii) or (a)(1)(iii) of this sec- proved in accordance with this para- tion, the State agency shall monitor graph, the State agency may require compliance following the procedures the school food authority to reduce the developed in accordance with § 210.10(l) price children are charged for lunches,

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improve food quality or take other ac- limited to changes made to that con- tion designed to improve the nonprofit tract. Each State agency shall review school food service. In the absence of each contract amendment between a any such action, the State agency shall school food authority and food service make adjustments in the rate of reim- management company to ensure com- bursement under the Program. pliance with all the provisions and (3) Improved management practices. standards set forth in this part before The State agency shall work with the execution of the amended contract by school food authority toward improv- either party. The State agency may es- ing the school food authority’s man- tablish due dates for submission of the agement practices where the State contract or contract amendment docu- agency has found poor food service ments. Each State agency shall per- management practices leading to de- form an on-site review of each school creasing or low child participation and/ food authority contracting with a food or poor child acceptance of the Pro- service management company, at least gram or of foods served. If a substan- once during each 5-year period. The tial number of children who routinely State agency is encouraged to conduct and over a period of time do not favor- such a review when performing reviews ably accept a particular item that is in accordance with § 210.18. Such re- offered; return foods; or choose less views shall include an assessment of than all food items/components or the school food authority’s compliance foods and menu items, as authorized with § 210.16 of this part. The State under § 210.10, poor acceptance of cer- agency may require that all food serv- tain menus may be indicated. ice management companies that wish (4) Program compliance. Each State to contract for food service with any agency shall require that school food school food authority in the State reg- authorities comply with the applicable ister with the State agency. State provisions of this part. The State agen- agencies shall provide assistance upon cy shall ensure compliance through au- request of a school food authority to dits, administrative reviews, technical assure compliance with Program re- assistance, training guidance materials quirements. or by other means. (b) Donated food distribution informa- (5) Investigations. Each State agency tion. Information on schools eligible to shall promptly investigate complaints receive donated foods available under received or irregularities noted in con- section 6 of the National School Lunch nection with the operation of the Pro- Act (42 U.S.C. 1755) shall be prepared gram, and shall take appropriate ac- each year by the State agency with action to correct any irregularities. companying information on the aver- State agencies shall maintain on file, age daily number of lunches to be evidence of such investigations and ac- served in such schools. This informa- tions. FNS and OIG may make reviews tion shall be prepared as early as prac- or investigations at the request of the ticable each school year and forwarded State agency or where FNS or OIG de- no later than September 1 to the Dis- termines reviews or investigations are tributing agency. The State agency appropriate. shall be responsible for promptly revis- (6) Food service management companies. ing the information to reflect additions Each State agency shall annually re- or deletions of eligible schools, and for view each contract (including all sup- providing such adjustments in partici- porting documentation) between any pation as are determined necessary by school food authority and food service the State agency. Schools shall be con- management company to ensure com- sulted by the Distributing agency with pliance with all the provisions and respect to the needs of such schools re- standards set forth in this part before lating to the manner of selection and execution of the contract by either distribution of commodity assistance. party. When the State agency develops (c) Fiscal action. State agencies are a prototype contract for use by the responsible for ensuring Program in- school food authority that meets the tegrity at the school food authority provisions and standards set forth in level. State agencies shall take fiscal this part, this annual review may be action against school food authorities

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for Claims for Reimbursement that are previous school years, as applicable. not properly payable under this part The State agency shall ensure that any including, if warranted, the disallow- Claim for Reimbursement, filed subse- ance of funds for failure to take correc- quent to the reviews conducted under tive action in accordance with para- § 210.18 and prior to the implementation graph (a)(1) of this section. In taking of corrective action, is limited to fiscal action, State agencies shall use lunches eligible for reimbursement their own procedures within the con- under this part. straints of this part and shall maintain (iii) In taking fiscal action, State all records pertaining to action taken agencies shall assume that children de- under this section. The State agency termined by the reviewer to be incor- may refer to FNS for assistance in rectly approved for free and reduced making a claims determination under price lunches participated at the same this part. rate as correctly approved children in (1) Definition. Fiscal action includes, the corresponding lunch category. but is not limited to, the recovery of (3) Failure to collect. If a State agency overpayment through direct assess- fails to disallow a claim or recover an ment or offset of future claims, dis- overpayment from a school food au- allowance of overclaims as reflected in thority, as described in this section, unpaid Claims for Reimbursement, sub- FNS will notify the State agency that mission of a revised Claim for Reim- a claim may be assessed against the bursement, and correction of records to State agency. In all such cases, the ensure that unfiled Claims for Reim- State agency shall have full oppor- bursement are corrected when filed. tunity to submit evidence concerning Fiscal action also includes disallow- overpayment. If after considering all ance of funds for failure to take correc- available information, FNS determines tive action in accordance with para- that a claim is warranted, FNS will as- graph (a)(1) of this section. sess a claim in the amount of such (2) General principles. When taking overpayment against the State agency. fiscal action, State agencies shall con- If the State agency fails to pay any sider the following: such demand for funds promptly, FNS (i) The State agency shall identify will reduce the State agency’s Letter the school food authority’s correct en- of Credit by the sum due in accordance titlement and take fiscal action when with FNS’ existing offset procedures any school food authority claims or re- for Letter of Credit. In such event, the ceives more Federal funds than earned State agency shall provide the funds under § 210.7 of this part. In order to necessary to maintain Program oper- take fiscal action, the State agency ations at the level of earnings from a shall identify accurate counts of reim- source other than the Program. bursable lunches through available (4) Interest charge. If an agreement data, if possible. In the absence of reli- cannot be reached with the State agen- able data, the State agency shall re- cy for payment of its debts or for offset construct the lunch accounts in ac- of debts on its current Letter of Credit, cordance with procedures established interest will be charged against the by FNS. Such procedures will be based State agency from the date the demand on the best available information in- leter was sent, at the rate established cluding, participation factors for the by the Secretary of Treasury. review period, data from similar (5) Use of recovered payment. The schools in the school food authority, amounts recovered by the State agency etc. from school food authorities may be (ii) Unless otherwise specified under utilized during the fiscal year for § 210.18(m) of this part, fiscal action which the funds were initially avail- shall be extended back to the beginning able, first, to make payments to school of the school year or that point in time food authorities for the purposes of the during the current school year when Program; and second, to repay any the infraction first occurred, as appli- State funds expended in the reimburse- cable. Based on the severity and lon- ment of claims under the Program and gevity of the problem, the State agen- not otherwise repaid. Any amounts re- cy may extend fiscal action back to covered which are not so utilized shall

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be returned to FNS in accordance with make available its records, including the requirements of this part. records of the receipt and disbursement (6) Exceptions. The State agency need of funds under the Program and records not disallow payment or collect an of any claim compromised in accord- overpayment arising out of the situa- ance with this paragraph, upon a rea- tions described in paragraphs (c)(6) (i) sonable request by FNS, OIG, or the and (ii) of this section; provided that Comptroller General of the United the school food authority corrects the States. FNS and OIG retain the right problem(s) to the satisfaction of the to visit schools and OIG also has the State agency: right to make audits of the records and (i) When any review or audit reveals operations of any school. In conducting that a school food authority is failing management evaluations, reviews, or to meet the quantities for each meal audits in a fiscal year, the State agen- element (food item/component, menu cy, FNS, or OIG may disregard an over- item or other items, as applicable) as payment if the overpayment does not required under § 210.10. exceed $600. A State agency may estab- (ii) When any review or audit reveals lish, through State law, regulation or that a school food authority is approv- procedure, an alternate disregard ing applications which indicate that threshold that does not exceed $600. the households’ incomes are within the This disregard may be made once per Income Eligibility Guidelines issued by each management evaluation, review, the Department or the applications or audit per Program within a fiscal contain food stamp or TANF case num- year. However, no overpayment is to be bers or FDPIR case numbers or other disregarded where there is substantial FDPIR identifiers but the applications evidence of violations of criminal law are missing the information specified or civil fraud statutes. in paragraph (1)(ii) of the definition of (e) Additional requirements. Nothing Documentation in § 245.2 of this chapter; contained in this part shall prevent a or State agency from imposing additional (iii) when any review or audit reveals requirements for participation in the that a school food authority’s failure Program which are not inconsistent to meet the nutrition standards of with the provisions of this part. § 210.10 is unintentional and the school (f) Cooperation with the Child and food authority is meeting the require- Adult Care Food Program. On an annual ments of a corrective plan developed basis, the State agency shall provide and agreed to under paragraph the State agency which administers (a)(1)(iii) of this section. the Child and Adult Care Food Pro- (7) Claims adjustment. FNS will have gram with a list of all elementary the authority to determine the amount schools in the State participating in of, to settle, and to adjust any claim the National School Lunch Program in arising under the Program, and to com- which 50 percent or more of enrolled promise or deny such claim or any part children have been determined eligible thereof. FNS will also have the author- for free or reduced price meals as of the ity to waive such claims if FNS deter- last operating day of the previous Oc- mines that to do so would serve the tober, or other month specified by the purposes of the Program. This provi- State agency. The first list shall be sion shall not diminish the authority provided by March 15, 1997; subsequent of the Attorney General of the United lists shall be provided by February 1 of States under section 516 of title 28, U.S. each year or, if data is based on a Code, to conduct litigation on behalf of month other than October, within 90 the United States. calendar days following the end of the (d) Management evaluations. Each month designated by the State agency. State agency shall provide FNS with The State agency may provide updated full opportunity to conduct manage- free and reduced price enrollment data ment evaluations of all State agency on individual schools to the State Program operations and shall provide agency which administers the Child OIG with full opportunity to conduct and Adult Care Food Program only audits of all State agency Program op- when unusual circumstances render the erations. Each State agency shall initial data obsolete. In addition, the

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State agency shall provide the current tody and disbursement of Federal Pro- list, upon request, to sponsoring orga- gram funds as required under § 210.5(a); nizations of day care homes partici- (2) Documentation supporting all pating in the Child and Adult Care school food authority claims paid by Food Program. the State agency as required under [53 FR 29147, Aug. 2, 1988] § 210.5(d); (3) Documentation to support the EDITORIAL NOTE: For FEDERAL REGISTER ci- amount the State agency reported hav- tations affecting § 210.19, see the List of CFR Sections Affected, which appears in the ing used for State revenue matching as Finding Aids section of the printed volume required under § 210.17(h); and on GPO Access. (4) Records supporting the State agency’s review of net cash resources § 210.20 Reporting and recordkeeping. as required under § 210.19(a); (a) Reporting summary. Participating (5) Reports on the results of inves- State agencies shall submit forms and tigations of complaints received or reports to FNS to demonstrate compli- irregularities noted in connection with ance with Program requirements. The Program operations as required under reports include but are not limited to: § 210.19(a) (1) Requests for cash to make reim- (6) Records of all reviews and audits, bursement payments to school food au- including records of action taken to thorities as required under § 210.5(a); correct Program violations; and (2) Information on the amounts of records of fiscal action taken, includ- Federal Program funds expended and ing documentation of recoveries made; obligated to date (SF–269) as required (7) State agency criteria for selecting under § 210.5(d); schools for reviews and small school (3) Statewide totals on Program par- food authorities for follow-up reviews; ticipation (FNS–10) as required under (8) Documentation of action taken to § 210.5(d); disallow improper claims submitted by (4) Information on State funds pro- school food authorities, as required by vided by the State to meet the State § 210.19(c) and as determined through matching requirements (FNS–13) specified under § 210.17(g); claims processing, resulting from actions such as reviews, audits and USDA (5) The names of school food authori- audits; ties in need of a follow-up review; (6) Results of reviews and audits; (9) Records of USDA audit findings, State agency’s and school food authori- (7) Results of the commodity preference survey and recommendations ties’ responses to them and of correc- for commodity purchases as required tive action taken as required by under § 250.13(k) of this chapter; and § 210.22(a); (8) Results of the State agency’s re- (10) Records pertaining to civil rights view of schools’ compliance with the responsibilities as defined under food safety inspection requirement in § 210.23(b); § 210.13(b) by November 15 following (11) Records pertaining to the annual each of school years 2005–2006 through food preference survey of school food 2008–2009, beginning November 15, 2006. authorities as required by § 250.13(k) of The report will be based on data sup- this chapter; and plied by the school food authorities in (12) Records supplied by the school accordance with § 210.15(a)(7). food authorities showing the number of (b) Recordkeeping summary. Partici- food safety inspections obtained by pating State agencies are required to schools for each of school years 2005– maintain records to demonstrate com- 2006 through 2008–2009. pliance with Program requirements. The records include but are not limited [53 FR 29147, Aug. 2, 1988, as amended at 56 to: FR 32948, July 17, 1991; 56 FR 55527, Oct. 28, 1991; 64 FR 50741, Sept. 20, 1999; 70 FR 34630, (1) Accounting records and source June 15, 2005] documents to control the receipt, cus-

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Subpart E—State Agency and fice of Management and Budget Circu- School Food Authority Re- lars. School food authority procedures sponsibilities must include a written code of standards of conduct meeting the minimum § 210.21 Procurement. standards of § 3016.36(b)(3) or § 3019.42 of (a) General. State agencies and school this title, as applicable. food authorities shall comply with the (1) Pre-issuance review requirement. requirements of this part and 7 CFR The State agency may impose a pre- part 3016 or 7 CFR part 3019, as applica- issuance review requirement on a ble, which implement the applicable school food authority’s proposed pro- Office of Management and Budget Cir- curement. The school food authority culars, concerning the procurement of must make available, upon request by all goods and services with nonprofit the State agency, its procurement doc- school food service account funds. uments, including but not limited to (b) Contractual responsibilities. The solicitation documents, specifications, standards contained in this part and 7 evaluation criteria, procurement pro- CFR part 3015, 7 CFR part 3016 and 7 cedures, proposed contracts and con- CFR part 3019, as applicable, do not re- tract terms. School food authorities lieve the State agency or school food shall comply with State agency re- authority of any contractual respon- quests for changes to procurement pro- sibilities under its contracts. The State cedures and solicitation and contract agency or school food authority is the documents to ensure that, to the State responsible authority, without re- agency’s satisfaction, such procedures course to FNS, regarding the settle- and documents reflect applicable pro- ment and satisfaction of all contrac- curement and contract requirements tual and administrative issues arising and the requirements of this part. out of procurements entered into in (2) Prototype solicitation documents and connection with the Program. This in- contracts. The school food authority cludes, but is not limited to source must obtain the State agency’s prior evaluation, protests, disputes, claims, written approval for any change made or other matters of a contractual na- to prototype solicitation or contract ture. Matters concerning violation of documents before issuing the revised law are to be referred to the local, solicitation documents or execution of State, or Federal authority that has the revised contract. proper jurisdiction. (3) Prohibited expenditures. No expend- (c) Procedures. The State agency may iture may be made from the nonprofit elect to follow either the State laws, school food service account for any policies and procedures as authorized cost resulting from a procurement fail- by §§ 3016.36(a) and 3016.37(a) of this ing to meet the requirements of this title, or the procurement standards for part. other governmental grantees and all governmental subgrantees in accord- (d) Buy American—(1) Definition of do- ance with § 3016.36(b) through (i) of this mestic commodity or product. In this title. Regardless of the option selected, paragraph (d), the term ‘domestic com- States must ensure that all contracts modity or product’ means— include any clauses required by Federal (i) An agricultural commodity that is statutes and executive orders and that produced in the United States; and the requirements of § 3016.60(b) and (c) (ii) A food product that is processed of this title are followed. A school food in the United States substantially authority may use its own procure- using agricultural commodities that ment procedures which reflect applica- are produced in the United States. ble State and local laws and regula- (2) Requirement. (i) In general. Subject tions, provided that procurements to paragraph (d)(2)(ii) of this section, made with nonprofit school food serv- the Department shall require that a ice account funds adhere to the stand- school food authority purchase, to the ards set forth in this part and maximum extent practicable, domestic §§ 3016.36(b) through 3016.36(i), 3016.60 commodities or products. and 3019.40 through 3019.48 of this title, (ii) Limitations. Paragraph (d)(2)(i) of as applicable, and in the applicable Of- this section shall apply only to—

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(A) A school food authority located (iii) The contractor’s determination in the contiguous United States; and of its allowable costs must be made in (B) A purchase of domestic com- compliance with the applicable Depart- modity or product for the school lunch mental and Program regulations and program under this part. Office of Management and Budget cost (3) Applicability to Hawaii. Paragraph circulars; (d)(2)(i) of this section shall apply to a (iv) The contractor must identify the school food authority in Hawaii with amount of each discount, rebate and respect to domestic commodities or other applicable credit on bills and in- products that are produced in Hawaii voices presented to the school food au- in sufficient quantities to meet the thority for payment and individually needs of meals provided under the identify the amount as a discount, re- school lunch program under this part. bate, or in the case of other applicable (e) Restrictions on the sale of milk. A credits, the nature of the credit. If ap- school food authority participating in proved by the State agency, the school the Program, or a person approved by a food authority may permit the con- school participating in the Program, tractor to report this information on a must not directly or indirectly restrict less frequent basis than monthly, but the sale or marketing of fluid milk (as no less frequently than annually; described in paragraph (m)(1)(ii) of this (v) The contractor must identify the section) at any time or in any place on method by which it will report dis- school premises or at any school-spon- counts, rebates and other applicable sored event. credits allocable to the contract that (f) Cost reimbursable contracts—(1) Re- are not reported prior to conclusion of quired provisions. The school food au- the contract; and thority must include the following pro- (vi) The contractor must maintain visions in all cost reimbursable con- documentation of costs and discounts, tracts, including contracts with cost rebates and other applicable credits, reimbursable provisions, and in solici- and must furnish such documentation tation documents prepared to obtain upon request to the school food author- offers for such contracts: ity, the State agency, or the Depart- (i) Allowable costs will be paid from ment. the nonprofit school food service ac- (2) Prohibited expenditures. No expend- count to the contractor net of all dis- iture may be made from the nonprofit counts, rebates and other applicable school food service account for any credits accruing to or received by the cost resulting from a cost reimbursable contractor or any assignee under the contract that fails to include the re- contract, to the extent those credits quirements of this section, nor may are allocable to the allowable portion any expenditure be made from the non- of the costs billed to the school food profit school food service account that authority; permits or results in the contractor re- (ii)(A) The contractor must sepa- ceiving payments in excess of the con- rately identify for each cost submitted tractor’s actual, net allowable costs. for payment to the school food authority the amount of that cost that is al- [53 FR 29147, Aug. 2, 1988, as amended at 64 lowable (can be paid from the nonprofit FR 50741, Sept. 20, 1999; 70 FR 70033, Nov. 21, school food service account) and the 2005; 71 FR 39516, July 13, 2006; 72 FR 61491, amount that is unallowable (cannot be Oct. 31, 2007] paid from the nonprofit school food service account); or § 210.22 Audits. (B) The contractor must exclude all (a) General. Unless otherwise exempt, unallowable costs from its billing docu- audits at the State and school food au- ments and certify that only allowable thority levels shall be conducted in ac- costs are submitted for payment and cordance with Office of Management records have been established that and Budget Circular A–133 and the De- maintain the visibility of unallowable partment’s implementing regulations costs, including directly associated at 7 CFR part 3052. For availability of costs in a manner suitable for contract the OMB Circular mentioned in this cost determination and verification; paragraph, please refer to 5 CFR 1310.3.

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(b) Audit procedure. These require- the fiscal year. School food authority ments call for organization-wide finan- records shall be retained for a period of cial and compliance audits to ascertain 3 years after submission of the final whether financial operations are con- Claim for Reimbursement for the fiscal ducted properly; financial statements year. In either case, if audit findings are presented fairly; recipients and have not been resolved, the records subrecipients comply with the laws and shall be retained beyond the 3-year pe- regulations that affect the expendi- riod as long as required for the resolu- tures of Federal funds; recipients and tion of the issues raised by the audit. subrecipients have established proce- (d) Data collection related to school dures to meet the objectives of feder- food authorities. (1) Each State agency ally assisted programs; and recipients must collect data related to school and subrecipients are providing accu- food authorities that have an agree- rate and reliable information con- ment with the State agency to partici- cerning grant funds. States and school pate in the program for each of Federal food authorities shall use their own fiscal years 2006 through 2009, including procedures to arrange for and prescribe those school food authorities that par- the scope of independent audits, pro- ticipated only for part of the fiscal vided that such audits comply with the year. Such data shall include: requirements set forth in 7 CFR part (i) The name of each school food au- 3015. thority; [53 FR 29147, Aug. 2, 1988, as amended at 71 (ii) The city in which each partici- FR 39516, July 13, 2006] pating school food authority was headquartered and the name of the § 210.23 Other responsibilities. state; (a) Free and reduced price lunches and (iii) The amount of funds provided to meal supplements. State agencies and the participating organization, i.e., the school food authorities shall ensure amount of federal funds reimbursed to that lunches and meal supplements are each participating school food author- made available free or at a reduced ity; and price to all children who are deter- (iv) The type of participating organi- mined by the school food authority to zation, e.g., government agency, edu- be eligible for such benefits. The deter- cational institution, non-profit organi- mination of a child’s eligibility for free zation/secular, non-profit organization/ or reduced price lunches and meal sup- faith-based, and ‘‘other.’’ plements is to be made in accordance (2) On or before August 31, 2007, and with 7 CFR part 245. each subsequent year through 2010, (b) Civil rights. In the operation of the State agencies must report to FNS Program, no child shall be denied bene- data as specified in paragraph (d)(1) of fits or be otherwise discriminated this section for the prior Federal fiscal against because of race, color, national year. State agencies must submit this origin, age, sex, or disability. State data in a format designated by FNS. agencies and school food authorities shall comply with the requirements of: [53 FR 29147, Aug. 2, 1988, as amended at 58 Title VI of the Civil Rights Act of 1964; FR 42489, Aug. 10, 1993; 64 FR 50741, Sept. 20, 1999; 72 FR 24183, May 2, 2007] title IX of the Education Amendments of 1972; section 504 of the Rehabilita- tion Act of 1973; the Age Discrimina- Subpart F—Additional Provisions tion Act of 1975; Department of Agri- culture regulations on nondiscrimina- § 210.24 Withholding payments. tion (7 CFR parts 15, 15a, and 15b); and In accordance with Departmental FNS Instruction 113–6. regulations at §§ 3016.43 and 3019.62 of (c) Retention of records. State agen- this title, the State agency shall with- cies and school food authorities may hold Program payments, in whole or in retain necessary records in their origi- part, to any school food authority nal form or on microfilm. State agency which has failed to comply with the records shall be retained for a period of provisions of this part. Program pay- 3 years after the date of submission of ments shall be withheld until the the final Financial Status Report for school food authority takes corrective

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action satisfactory to the State agen- sets, or property have been embezzled, cy, or gives evidence that such correc- willfully misapplied, stolen, or ob- tive action will be taken, or until the tained by fraud, shall be subject to the State agency terminates the grant in same penalties. accordance with § 210.25 of this part. [53 FR 29147, Aug. 2, 1988. Redesignated at 56 Subsequent to the State agency’s ac- FR 32948, July 17, 1991, as amended at 64 FR ceptance of the corrective actions, pay- 50741, Sept. 20, 1999] ments will be released for any lunches served in accordance with the provi- § 210.27 Educational prohibitions. sions of this part during the period the In carrying out the provisions of the payments were withheld. Act, the Department shall not impose [56 FR 32948, July 17, 1991, as amended at 71 any requirements with respect to FR 39516, July 13, 2006; 72 FR 61492, Oct. 31, teaching personnel, curriculum, in- 2007] structions, methods of instruction, or materials of instruction in any school § 210.25 Suspension, termination and grant closeout procedures. as a condition for participation in the Program. Whenever it is determined that a State agency has materially failed to [53 FR 29147, Aug. 2, 1988. Redesignated at 56 comply with the provisions of this FR 32948, July 17, 1991, as amended at 64 FR part, or with FNS guidelines and in- 50741, Sept. 20, 1999] structions, FNS may suspend or termi- § 210.28 Pilot project exemptions. nate the Program in whole, or in part, or take any other action as may be Those State agencies or school food available and appropriate. A State authorities selected for the pilot agency may also terminate the Pro- projects mandated under section 18(d) gram by mutual agreement with FNS. of the Act may be exempted by the De- FNS and the State agency shall comply partment from some or all of the with the provisions of 7 CFR part 3016 counting and free and reduced price ap- concerning grant suspension, termi- plication requirements of this part and nation and closeout procedures. Fur- 7 CFR part 245, as necessary, to con- thermore, the State agency shall apply duct an approved pilot project. Addi- these provisions, or the parallel provi- tionally, those schools selected for sions of 7 CFR part 3019, as applicable, pilot projects that also operate the to suspension or termination of the School Breakfast Program (7 CFR part Program in school food authorities. 220) and/or the Special Milk Program for Children (7 CFR part 215), may be [53 FR 29147, Aug. 2, 1988. Redesignated at 56 exempted from the counting and free FR 32948, July 17, 1991, and amended at 71 FR 39516, July 13, 2006] and reduced price application requirements mandated under these Pro- § 210.26 Penalties. grams. The Department shall notify Whoever embezzles, willfully the appropriate State agencies and misapplies, steals, or obtains by fraud school food authorities of its deter- any funds, assets, or property provided mination of which requirements are ex- under this part whether received di- empted after the Department’s selec- rectly or indirectly from the Depart- tion of pilot projects. ment, shall if such funds, assets, or [55 FR 41504, Oct. 12, 1990. Redesignated at 56 property are of a value of $100 or more, FR 32948, July 17, 1991, and further redesig- be fined no more than $25,000 or impris- nated at 64 FR 50741, Sept. 20, 1999] oned not more than 5 years or both; or if such funds, assets, or property are of § 210.29 Management evaluations. a value of less than $100, be fined not (a) Management evaluations. FNS will more than $1,000 or imprisoned not conduct a comprehensive management more than 1 year or both. Whoever re- evaluation of each State agency’s ad- ceives, conceals, or retains for personal ministration of the National School use or gain, funds, assets, or property Lunch Program. provided under this part, whether re- (b) Basis for evaluations. FNS will ceived directly or indirectly from the evaluate all aspects of State agency Department, knowing such funds, as- management of the Program using

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tools such as State agency reviews as cases, be invited to accompany FNS re- required under § 210.18 or § 210.18a of viewers. this part; reviews conducted by FNS in (1) Observation of State agency reviews. accordance with § 210.18 of this part; FNS may observe the State agency FNS reviews of school food authorities conduct of any review and/or any fol- and schools authorized under low-up review as required under this § 210.19(a)(4) of this part; follow-up re- part. At State agency request, FNS views and actions taken by the State may assist in the conduct of the re- agency to correct violations found dur- view. ing reviews; FNS observations of State (2) Section 210.18 reviews. FNS will agency reviews; and audit reports. conduct administrative reviews or fol- (c) Scope of management evaluations. low-up reviews in accordance with The management evaluation will deter- § 210.18(a)–(h) of this part which will mine whether the State agency has count toward meeting the State agency taken steps to ensure school food au- responsibilities identified under § 210.18 thority compliance with Program regu- of this part. lations, and whether the State agency (3) School food authority appeal of FNS is administering the Program in ac- findings. When administrative or fol- cordance with Program requirements low-up review activity conducted by and good management practices. FNS in accordance with the provisions (1) Local compliance. FNS will evalu- of paragraph (d)(2) of this section re- ate whether the State agency has ac- sults in the denial of all or part of a tively taken steps to ensure that Claim for Reimbursement or with- school food authorities comply with holding of payment, a school food au- the provisions of this part. thority may appeal the FNS findings (2) State agency compliance. FNS will by filing a written request with the evaluate whether the State agency has Chief, Administrative Review Branch, fulfilled its State level responsibilities, U.S. Department of Agriculture, Food including, but not limited to the fol- and Nutrition Service, 3101 Park Cen- lowing areas: use of Federal funds; re- ter Drive, Alexandria, Virginia, 22302, porting and recordkeeping; agreements in accordance with the appeal proce- with school food authorities; review of dures specified in this paragraph: food service management company (i) The written request for a review of contracts; review of the claims pay- the record shall be postmarked within ment process; implementation of the 15 calendar days of the date the appel- State agency’s monitoring responsibil- lant received the notice of the denial of ities; initiation and completion of cor- all or a part of the Claim for Reim- rective action; recovery of overpay- bursement or withholding payment and ments; disallowance of claims that are the envelope containing the request not properly payable; withholding of shall be prominently marked ‘‘RE- Program payments; oversight of school QUEST FOR REVIEW’’. FNS will ac- food authority procurement activities; knowledge the receipt of the request training and guidance activities; civil for appeal within 10 calendar days. The rights; and compliance with the State acknowledgement will include the Administrative Expense Funds require- name and address of the FNS Adminis- ments as specified in 7 CFR part 235. trative Review Officer (ARO) reviewing (d) School food authority reviews. FNS the case. FNS will also notify the State will examine State agency administra- agency of the request for appeal. tion of the Program by reviewing local (ii) The appellant may refute the ac- Program operations. When conducting tion specified in the notice in person these reviews under paragraph (d)(2) of and by written documentation to the this section, FNS will follow all the ad- ARO. In order to be considered, written ministrative review requirements spec- documentation must be filed with the ified in § 210.18(a)–(h) of this part. When ARO not later than 30 calendar days FNS conducts reviews, the findings will after the appellant received the notice. be sent to the State agency to ensure The appellant may retain legal coun- all the needed follow-up activity oc- sel, or may be represented by another curs. The State agency will, in all person. A hearing shall be held by the

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ARO in addition to, or in lieu of, a re- (e) Management evaluation findings. view of written information submitted FNS will consider the results of all its by the appellant only if the appellant review activity within each State, in- so specifies in the letter of request for cluding school food authority reviews, review. Failure of the appellant school in performing management evaluations food authority’s representative to ap- and issuing management evaluation re- pear at a scheduled hearing shall con- ports. FNS will communicate the find- stitute the appellant school food ings of the management evaluation to authority’s waiver of the right to a appropriate State agency personnel in personal appearance before the ARO, an exit conference. Subsequent to the unless the ARO agrees to reschedule exit conference, the State agency will the hearing. A representative of FNS be notified in writing of the manage- shall be allowed to attend the hearing ment evaluation findings and any need- to respond to the appellant’s testimony ed corrective actions or fiscal sanc- and to answer questions posed by the tions in accordance with the provisions ARO; § 210.25 of this part and/or 7 CFR part (iii) If the appellant has requested a 235. hearing, the appellant shall be provided [56 FR 32949, July 17, 1991, as amended at 57 with a least 10 calendar days advance FR 38586, Aug. 26, 1992. Redesignated at 64 FR written notice, sent by certified mail, 50741, Sept. 20, 1999] return receipt requested, of the time, date, and place of the hearing; § 210.30 Regional office addresses. (iv) Any information on which FNS’s School food authorities desiring in- action was based shall be available to formation concerning the Program the appellant for inspection from the should write to their State educational date of receipt of the request for re- agency or to the appropriate Regional view; Office of FNS as indicated below: (v) The ARO shall be an independent (a) In the States of Connecticut, and impartial official other than, and Maine, Massachusetts, New Hampshire, not accountable to, any person author- New York, Rhode Island, and Vermont: ized to make decisions that are subject Northeast Regional Office, FNS, U.S. to appeal under the provisions of this Department of Agriculture, 10 Cause- section; way Street, Room 501, Boston, Massa- (vi) The ARO shall make a deter- chusetts 02222–1065. mination based on information pro- (b) In the States of Alabama, Florida, vided by FNS and the appellant, and on Georgia, Kentucky, Mississippi, North Program regulations; Carolina, South Carolina, and Ten- (vii) Within 60 calendar days of the nessee: Southeast Regional Office, receipt of the request for review, by FNS, U.S. Department of Agriculture, written notice, sent by certified mail, 61 Forsyth Street SW, Room 8T36, At- return receipt requested, the ARO shall lanta, Georgia 30303. inform FNS, the State agency and the (c) In the States of Illinois, Indiana, appellant of the determination of the Michigan, Minnesota, Ohio, and Wis- ARO. The final determination shall consin: Midwest Regional Office, FNS, take effect upon receipt of the written U.S. Department of Agriculture, 77 notice of the final decision by the West Jackson Boulevard, 20th Floor, school food authority; Chicago, Illinois 60604–3507. (viii) The action being appealed shall (d) In the States of Arkansas, Lou- remain in effect during the appeal isiana, New Mexico, Oklahoma, and process; Texas: Southwest Regional Office, (ix) The determination by the ARO is FNS, U.S. Department of Agriculture, the final administrative determination 1100 Commerce Street, Room 5–C–30, to be afforded to the appellant. Dallas, Texas 75242. (4) Coordination with State agency. (e) In the States of Alaska, American FNS will coordinate school food au- Samoa, Arizona, California, Guam, Ha- thority selection with the State agency waii, Idaho, Nevada, Oregon, the Com- to ensure that no unintended overlap monwealth of the Northern Mariana Is- exists and to ensure reviews are con- lands, and Washington: Western Re- ducted in a consistent manner. gional Office, FNS, U.S. Department of

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Agriculture, 550 Kearny Street, Room APPENDIX A TO PART 210—ALTERNATE 400, San Francisco, California 94108. FOODS FOR MEALS (f) In the States of Delaware, District of Columbia, Maryland, New Jersey, I. ENRICHED MACARONI PRODUCTS WITH Pennsylvania, Puerto Rico, Virginia, FORTIFIED PROTEIN Virgin Islands, and West Virginia: Mid- 1. Schools may utilize the enriched maca- Atlantic Regional Office, FNS, U.S. De- roni products with fortified protein defined partment of Agriculture, 300 Corporate in paragraph 3 as a food item in meeting the Boulevard, Robbinsville, New Jersey meal requirements of this part under the fol- 08691–1598. lowing terms and conditions: (g) In the States of Colorado, Iowa, (a) One ounce (28.35 grams) of a dry en- Kansas, Missouri, Montana, Nebraska, riched macaroni product with fortified protein may be used to meet not more than one- North Dakota, South Dakota, Utah, half of the meat or meat alternate require- and Wyoming: Mountain Plains Re- ments specified in § 210.10, when served in gional Office, FNS, U.S. Department of combination with 1 or more ounces (28.35 Agriculture, 1244 Speer Boulevard, grams) of cooked meat, poultry, fish, or Suite 903, Denver, Colorado 80204. cheese. The size of servings of the cooked combination may be adjusted for various age [53 FR 29147, Aug. 2, 1988. Redesignated at 55 groups. FR 41503, Oct. 12, 1990, and further redesignated at 56 FR 32948, July 17, 1991, and fur- (b) Only enriched macaroni products with ther redesignated at 64 FR 50741, Sept. 20, fortified protein that bear a label containing 1999, as amended at 65 FR 12434, Mar. 9, 2000] substantially the following legend shall be so utilized: ‘‘One ounce (28.35 grams) dry weight § 210.31 OMB control numbers. of this product meets one-half of the meat or meat alternate requirements of lunch or sup- The following control numbers have per of the USDA child nutrition programs been assigned to the information col- when served in combination with 1 or more lection requirements in 7 CFR part 210 ounces (28.35 grams) of cooked meat, poultry, by the Office of Management and Budg- fish, or cheese. In those States where State et pursuant to the Paperwork Reduc- or local law prohibits the wording specified, tion Act of 1980, Pub. L. 96–511. a legend acceptable to both the State or local authorities and FNS shall be sub- 7 CFR section where requirements are de- Current OMB stituted.’’ scribed control No. (c) Enriched macaroni product may not be used for infants under 1 year of age. 210.3(b) ...... 0584–0327 210.5(d) ...... 0584–0006 2. Only enriched macaroni products with 210.5(d)(1) ...... 0584–0002 fortified protein that have been accepted by 210.5(d)(2) ...... 0584–0341 FNS for use in the USDA Child Nutrition 210.5(d)(3) ...... 0584–0341 Programs may be labeled as provided in 210.6(b) ...... 0584–0006 paragraph 1(b) of this appendix. Manufactur- 210.8 ...... 0584–0006 ers seeking acceptance of their product shall 0584–0284 furnish FNS a chemical analysis, the Protein 210.9 ...... 0584–0006 Digestibility-Corrected Amino Acid Score 0584–0026 (PDCAAS), and such other pertinent data as 0584–0329 may be requested by FNS, except that prior 210.10(b) ...... 0584–0006 to November 7, 1994, manufacturers may sub- 210.10(i)(1) ...... 0584–0006 mit protein efficiency ratio analysis in lieu 210.14(c) ...... 0584–0006 210.16 ...... 0584–0006 of the PDCAAS. This information is to be 210.17 ...... 0584–0006 forwarded to: Director, Nutrition and Tech- 210.17(g) ...... 0584–0075 nical Services Division, Food and Nutrition 210.18 ...... 0584–0006 Service, U.S. Department of Agriculture, 210.19 ...... 0584–0006 3101 Park Center Drive, room 607, Alexan- 210.22 ...... 0584–0006 dria, VA 22302. All laboratory analyses are to 210.23(c) ...... 0584–0006 be performed by independent or other labora- 210.24 ...... 0584–0006 tories acceptable to FNS. (FNS prefers an 210.27 ...... 0584–0006 independent laboratory.) All laboratories shall retain the ‘‘raw’’ laboratory data for a [53 FR 29147, Aug. 2, 1990. Redesignated at 55 period of 1 year. Such information shall be FR 41503, Oct. 12, 1990, and further redesig- made available to FNS upon request. Manu- nated at 56 FR 32948, July 17, 1991, and fur- facturers must notify FNS if there is a ther redesignated at 64 FR 50741, Sept. 20, change in the protein portion of their prod- 1999] uct after the original testing. Manufacturers

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who report such a change in protein in a pre- 8.0 as described in ‘‘Protein Quality Evalua- viously approved product must submit pro- tion, Report of the Joint FAO/WHO Expert tein data in accordance with the method Consultation on Protein Quality Evalua- specified in this paragraph. tion,’’ Rome, 1990, as published by the Food 3. The product should not be designed in and Agriculture Organization (FAO) of the such a manner that would require it to be United Nations/World Health Organization classified as a Dietary Supplement as de- (WHO). This report is incorporated by ref- scribed by the Food and Drug Administra- erence in accordance with 5 U.S.C. 552(a) and tion (FDA) in 21 CFR part 105. To be accepted 1 CFR part 51. Copies of this report may be by FNS, enriched macaroni products with obtained from the Nutrition and Technical fortified protein must conform to the fol- Services Division, Food and Nutrition Serv- lowing requirements: ice, 3101 Park Center Drive, room 607, Alex- (a)(1) Each of these foods is produced by andria, Virginia 22302. This report may also drying formed units of dough made with one be inspected at the National Archives and or more of the milled wheat ingredients des- Records Administration (NARA). For infor- ignated in 21 CFR 139.110(a) and 139.138(a), mation on the availability of this material and other ingredients to enable the finished at NARA, call 202–741–6030, or go to: http:// food to meet the protein requirements set www.archives.gov/federallregister/ out in paragraph 3.(a)(2)(i) under Enriched codeloflfederallregulations/ Macaroni Products with Fortified Protein in ibrllocations.html. this appendix. Edible protein sources, includ- (B) The standard used for assessing protein ing food grade flours or meals made from quality in the PDCAAS method is the amino nonwheat cereals or from oilseeds, may be acid scoring pattern established by FAO/ used. Vitamin and mineral enrichment nutri- WHO and United Nations University (UNU) ents are added to bring the food into con- in 1985 for preschool children 2 to 5 years of formity with the requirements of paragraph age which has been adopted by the National (b) under Enriched Macaroni Products with Academy of Sciences, Recommended Dietary Fortified Protein in this appendix. Safe and Allowances (RDA), 1989. suitable ingredients, as provided for in para- (C) To calculate the PDCAAS for an indi- graph (c) under Enriched Macaroni Products vidual food, the test food must be analyzed with Fortified Protein in this appendix, may for proximate analysis and amino acid com- be added. The proportion of the milled wheat position according to AOAC methods. ingredient is larger than the proportion of (D) The PDCAAS may be calculated using any other ingredient used. FDA’s limited data base of published true di- (2) Each such finished food, when tested by gestibility values (determined using humans the methods described in the pertinent sec- and rats). The true digestibility values con- tions of ‘‘Official Methods of Analysis of the tained in the WHO/FAO report referenced in AOAC International,’’ (formerly the Associa- paragraph 3.(a)(2)(i)(A) under Enriched Maca- tion of Official Analytical Chemists), 15th roni Products with Fortified Protein in this Ed. (1990) meets the following specifications. appendix may also be used. If the digest- This publication is incorporated by reference ibility of the protein is not available from in accordance with 5 U.S.C. 552(a) and 1 CFR these sources it must be determined by a lab- part 51. Copies may be obtained from the oratory according to methods in the FAO/ AOAC International, 2200 Wilson Blvd., suite WHO report (sections 7.2.1 and 8.0). 400, Arlington, VA 22201–3301. This publica- (E) The most limiting essential amino acid tion may be examined at the Food and Nutri- (that is, the amino acid that is present at tion Service, Nutrition and Technical Serv- the lowest level in the test food compared to ices Division, 3101 Park Center Drive, room the standard) is identified in the test food by 607, Alexandria, Virginia 22302 or at the Na- comparing the levels of individual amino tional Archives and Records Administration acids in the test food with the 1985 FAO/ (NARA). For information on the availability WHO/UNU pattern of essential amino acids of this material at NARA, call 202–741–6030, established as a standard for children 2 to 5 or go to: http://www.archives.gov/ years of age. federallregister/codeloflfederallregulations/ (F) The value of the most limiting amino ibrllocations.html. acid (the ratio of the amino acid in the test (i) The protein content (N×6.25) is not less food over the amino acid value from the pat- than 20 percent by weight (on a 13 percent tern) is multiplied by the percent of digest- moisture basis) as determined by the appro- ibility of the protein. The resulting number priate method of analysis in the AOAC man- is the PDCAAS. ual cited in (a)(2) under Enriched Macaroni (G) The PDCAAS of food mixtures must be Products with Fortified Protein in this ap- calculated from data for the amino acid com- pendix. The protein quality is not less than position and digestibility of the individual 95 percent that of casein as determined on a components by means of a weighted average dry basis by the PDCAAS method as de- procedure. An example for calculating a scribed below: PDCAAS for a food mixture of varying pro- (A) The PDCAAS shall be determined by tein sources is shown in section 8.0 of the the methods given in sections 5.4.1, 7.2.1. and FAO/WHO report cited in paragraph

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3.(a)(2)(i)(A) under Enriched Macaroni Prod- ulations established pursuant to section 409 ucts with Fortified Protein in this appendix. of the act. (H) For the purpose of this regulation, each (d)(1) The name of any food covered by this 100 grams of the product (on a 13 percent section is ‘‘Enriched Wheat llllllll moisture basis) must contain protein in Macaroni Product with Fortified Protein’’, amounts which is equivalent to that pro- the blank being filled in with appropriate vided by 20 grams of protein with a quality word(s) such as ‘‘Soy’’ to show the source of of not less than 95 percent casein. The equiv- any flours or meals used that were made alent grams of protein required per 100 grams from non-wheat cereals or from oilseeds. In of product (on a 13 percent moisture basis) lieu of the words ‘‘Macaroni Product’’ the would be determined by the following equa- words ‘‘Macaroni’’, ‘‘Spaghetti’’, or tion: ‘‘Vermicelli’’ as appropriate, may be used if the units conform in shape and size to the re- ab× quirements of 21 CFR 139.110 (b), (c), or (d). X = (2) When any ingredient not designated in c the part of the name prescribed in paragraph X=grams of protein required per 100 grams (d)(1) under Enriched Macaroni Products of product with Fortified Protein in this appendix, is a=20 grams (amount of protein if casein) added in such proportion as to contribute 10 b=.95 [95% × 1 (PDCAAS of casein) percent or more of the quantity of protein c=PDCAAS for protein used in formulation contained in the finished food, the name (ii) The total solids content is not less shall include the statement ‘‘Made with than 87 percent by weight as determined by llllllll’’, the blank being filled in the methods described in the ‘‘Official Meth- with the name of each such ingredient, e.g. ods of Analysis of the AOAC International’’ ‘‘Made with nonfat milk’’. cited in paragraph (a)(2) under Enriched (3) When, in conformity with paragraph Macaroni Products with Fortified Protein in (d)(1) or (d)(2) under Enriched Macaroni this appendix. Products with Fortified Protein in this ap- (b)(1) Each pound of food covered by this pendix, two or more ingredients are listed in section shall contain 5 milligrams of thi- the name, their designations shall be ar- amine, 2.2 milligrams of riboflavin, 34 milli- ranged in descending order of predominance grams of niacin or niacinamide, and 16.5 mil- by weight. ligrams of iron. (4) If a food is made to comply with a sec- (2) Each pound of such food may also con- tion of 21 CFR part 139, but also meets the tain 625 milligrams of calcium. compositional requirements of the Enriched (3) Only harmless and assimilable forms of Macaroni with Fortified Protein Appendix, it iron and calcium may be added. The enrich- may alternatively bear the name set out in ment nutrients may be added in a harmless the other section. carrier used only in a quantity necessary to (e) Each ingredient used shall declare its effect a uniform distribution of the nutrients common name as required by the applicable in the finished food. Reasonable overages, section of 21 CFR part 101. In addition, the within the limits of good manufacturing ingredients statement shall appear in letters practice, may be used to assure that the pre- not less than one half the size of that re- scribed levels of the vitamins and mineral(s) quired by 21 CFR 101.105 for the declaration in paragraphs (b)(1) and (2) under Enriched of net quantity of contents, and in no case Macaroni Products with Fortified Protein in less than one-sixteenth of an inch in height. this appendix are maintained throughout the expected shelf life of the food under cus- II. ALTERNATE PROTEIN PRODUCTS tomary conditions of distribution. A. What Are the Criteria for Alternate Protein (c) Ingredients that serve a useful purpose Products Used in the National School Lunch such as to fortify the protein or facilitate Program? production of the food are the safe and suitable ingredients referred to in paragraph (a) 1. An alternate protein product used in under Enriched Macaroni Products with For- meals planned under the food-based menu tified Protein in this appendix. This does not planning approaches in § 210.10(k), must meet include color additives, artificial flavorings, all of the criteria in this section. artificial sweeteners, chemical preservatives, 2. An alternate protein product whether or starches. Ingredients deemed suitable for used alone or in combination with meat or use by this paragraph are added in amounts other meat alternates must meet the fol- that are not in excess of those reasonably re- lowing criteria: quired to achieve their intended purposes. a. The alternate protein product must be Ingredients are deemed to be safe if they are processed so that some portion of the non- not food additives within the meaning of sec- protein constituents of the food is removed. tion 201(s) of the Federal Food, Drug and These alternate protein products must be Cosmetic Act, or in case they are food addi- safe and suitable edible products produced tives if they are used in conformity with reg- from plant or animal sources.

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b. The biological quality of the protein in cially prepared product that contains only the alternate protein product must be at alternate protein products. least 80 percent that of casein, determined [51 FR 34874, Sept. 30, 1986; 51 FR 41295, Nov. by performing a Protein Digestibility Cor- 14, 1986, as amended at 53 FR 29164, Aug. 2, rected Amino Acid Score (PDCAAS). 1988; 59 FR 51086, Oct. 7, 1994; 60 FR 31216; c. The alternate protein product must con- June 13, 1995; 61 FR 37671, July 19, 1996; 65 FR tain at least 18 percent protein by weight 12434, Mar. 9, 2000; 65 FR 26912, May 9, 2000; 69 when fully hydrated or formulated. (‘‘When FR 18803, Apr. 9, 2004] hydrated or formulated’’ refers to a dry alternate protein product and the amount of APPENDIX B TO PART 210—CATEGORIES water, fat, oil, colors, flavors or any other OF FOODS OF MINIMAL NUTRITIONAL substances which have been added). VALUE d. Manufacturers supplying an alternate protein product to participating schools or (a) Foods of minimal nutritional value— institutions must provide documentation Foods of minimal nutritional value are: that the product meets the criteria in para- (1) Soda Water—A class of beverages made graphs A2. a through c of this appendix. by absorbing carbon dioxide in potable e. Manufacturers should provide informa- water. The amount of carbon dioxide used is tion on the percent protein contained in the not less than that which will be absorbed by dry alternate protein product and on an as the beverage at a pressure of one atmosphere prepared basis. and at a temperature of 60° F. It either con- f. For an alternate protein product mix, tains no alcohol or only such alcohol, not in excess of 0.5 percent by weight of the fin- manufacturers should provide information ished beverage, as is contributed by the fla- on: voring ingredient used. No product shall be (1) the amount by weight of dry alternate excluded from this definition because it con- protein product in the package; tains artificial sweeteners or discrete nutri- (2) hydration instructions; and ents added to the food such as vitamins, min- (3) instructions on how to combine the mix erals and protein. with meat or other meat alternates. (2) Water Ices—As defined by 21 CFR 135.160 Food and Drug Administration Regulations B. How Are Alternate Protein Products Used in except that water ices which contain fruit or the National School Lunch Program? fruit juices are not included in this defini- 1. Schools, institutions, and service insti- tion. tutions may use alternate protein products (3) Chewing Gum—Flavored products from to fulfill all or part of the meat/meat alter- natural or synthetic gums and other ingredi- nate component discussed in § 210.10. ents which form an insoluble mass for chewing. 2. The following terms and conditions (4) Certain Candies—Processed foods made apply: predominantly from sweeteners or artifical a. The alternate protein product may be sweeteners with a variety of minor ingredi- used alone or in combination with other food ents which characterize the following types: ingredients. Examples of combination items (i) Hard Candy—A product made predomi- are beef patties, beef crumbles, pizza top- nantly from sugar (sucrose) and corn syrup ping, meat loaf, meat sauce, taco filling, which may be flavored and colored, is char- burritos, and tuna salad. acterized by a hard, brittle texture, and in- b. Alternate protein products may be used cludes such items as sour balls, fruit balls, in the dry form (nonhydrated), partially hy- candy sticks, lollipops, starlight mints, after drated or fully hydrated form. The moisture dinner mints, sugar wafers, rock candy, cin- content of the fully hydrated alternate pro- namon candies, breath mints, jaw breakers tein product (if prepared from a dry con- and cough drops. centrated form) must be such that the mix- (ii) Jellies and Gums—A mixture of carbo- ture will have a minimum of 18 percent pro- hydrates which are combined to form a sta- tein by weight or equivalent amount for the ble gelatinous system of jelly-like character, dry or partially hydrated form (based on the and are generally flavored and colored, and level that would be provided if the product include gum drops, jelly beans, jellied and were fully hydrated). fruit-flavored slices. (iii) Marshmallow Candies—An aerated con- C. How Are Commercially Prepared Products fection composed as sugar, corn syrup, invert Used in the National School Lunch Program? sugar, 20 percent water and gelatin or egg white to which flavors and colors may be Schools, institutions, and service institu- added. tions may use a commercially prepared meat (iv) Fondant—A product consisting of mi- or meat alternate product combined with al- croscopic-sized sugar crystals which are sep- ternate protein products or use a commer- arated by thin film of sugar and/or invert

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sugar in solution such as candy corn, soft of foods in that category, setting forth the mints. reasons for this action, and soliciting public (v) Licorice—A product made predomi- comments. On the basis of comments re- nantly from sugar and corn syrup which is ceived within 60 days of publication of the flavored with an extract made from the lico- proposed rule and other available informa- rice root. tion, the Department will determine whether (vi) Spun Candy—A product that is made the nutrient composition of the foods indi- from sugar that has been boiled at high tem- cates that the category should be classified perature and spun at a high speed in a spe- as a category of foods of minimal nutritional cial machine. (vii) Candy Coated Popcorn—Popcorn which value. The petitioner shall be notified in is coated with a mixture made predomi- writing and the public shall be notified of nantly from sugar and corn syrup. the Department’s final determination upon (b) Petitioning Procedures—Reconsideration publication in the FEDERAL REGISTER as in- of the list of foods of minimal nutritional dicated under paragraph (b)(3) of this sec- value identified in paragraph (a) of this section. tion may be pursued as follows: (3) By May 1 and November 1 of each year, (1) Any person may submit a petition to the Department will amend appendix B to FNS requesting that an individual food be exclude those individual foods identified exempted from a category of foods of mini- under paragraph (b)(1) of this section, and to mal nutritional value listed in paragraph (a). include those categories of foods identified In the case of artificially sweetened foods, under paragraph (b)(2) of this section, pro- the petition must include a statement of the vided, that there are necessary changes. The percent of Reference Daily Intake (RDI) for schedule for amending appendix B is as fol- the eight nutrients listed in § 210.11(a)(2) ‘‘Foods of minimal nutritional value,’’ that lows: the food provides per serving and the peti- Publication tioner’s source of this information. In the Actions for publication case of all other foods, the petition must in- May November clude a statement of the percent of RDI for the eight nutrients listed in § 210.11(a)(2) Deadline for receipt of peti- Nov. 15 ...... May 15. ‘‘Foods of minimal nutritional value,’’ that tions by USDA. the food provides per serving and per 100 cal- USDA to notify petitioners of Feb. 1 ...... Aug. 1. ories and the petitioner’s source of this in- results of Departmental review and publish proposed formation. The Department will determine rule (if applicable). whether or not the individual food is a food 60 Day comment period ...... Feb. 1 Aug. 1 of minimal nutritional value as defined in through through § 210.11(a)(2) and will inform the petitioner in Apr. 1. Oct. 1. writing of such determination, and the pub- Public notice of amendment May 1 ...... Nov. 1. lic by notice in the FEDERAL REGISTER as in- of appendix B by. dicated below under paragraph (b)(3) of this section. In determining whether an indi- (4) Written petitions should be sent to the vidual food is a food of minimal nutritional Chief, Technical Assistance Branch, Nutri- value, discrete nutrients added to the food tion and Technical Services Division, FNS, will not be taken into account. USDA, Alexandria, Virginia 22302, on or be- (2) Any person may submit a petition to fore November 15 or May 15 of each year. Pe- FNS requesting that foods in a particular titions must include all information speci- category of foods be classified as foods of fied in paragraph (b) of this appendix and minimal nutritional value as defined in § 220.12(b) (1) or (2) as appropriate. § 210.11(a)(2). The petition must identify and define the food category in easily understood [53 FR 29147, Aug. 2, 1988, as amended at 54 language, list examples of the food contained FR 18465, May 1, 1989; 59 FR 23614, May 6, in the category and include a list of ingredi- 1994] ents which the foods in that category usu- ally contain. If, upon review of the petition, APPENDIX C TO PART 210—CHILD the Department determines that the foods in NUTRITION LABELING PROGRAM that category should not be classified as foods of minimal nutritional value, the peti- 1. The Child Nutrition (CN) Labeling Pro- tioners will be so notified in writing. If, upon gram is a voluntary technical assistance pro- review of the petition, the Department deter- gram administered by the Food and Nutri- mines that there is a substantial likelihood tion Service in conjunction with the Food that the foods in that category should be Safety and Inspection Service (FSIS), and classified as foods of minimal nutritional Agricultural Marketing Service (AMS) of the value as defined in § 210.11(a)(2), the Depart- ment shall at that time inform the peti- U.S. Department of Agriculture, and Na- tioner. In addition, the Department shall tional Marine Fisheries Service of the U.S. publish a proposed rule restricting the sale Department of Commerce (USDC) for the

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Child Nutrition Programs. This program es- requirements of 7 CFR 210.10, 225.20, and sentially involves the review of a manufac- 226.20 and are served in the main dish. turer’s recipe or product formulation to de- (b) Juice drinks and juice drink products termine the contribution a serving of a com- that contain a minimum of 50 percent full- mercially prepared product makes toward strength juice by volume. meal pattern requirements and a review of 3. For the purpose of this appendix the fol- the CN label statement to ensure its accu- lowing definitions apply: racy. CN labeled products must be produced in accordance with all requirements set forth (a) ‘‘CN label’’ is a food product label that in this rule. contains a CN label statement and CN logo 2. Products eligible for CN labels are as fol- as defined in paragraph 3 (b) and (c) below. lows: (b) The ‘‘CN logo’’ (as shown below) is a (a) Commercially prepared food products distinct border which is used around the that contribute significantly to the meat/ edges of a ‘‘CN label statement’’ as defined in meat alternate component of meal pattern paragraph 3(c).

(c) The ‘‘CN label statement’’ includes the bread alternate, and/or vegetable/fruit com- following: ponent of the meal pattern requirements. (1) The product identification number (as- For juice drinks and juice drink products the signed by FNS), statement shall identify their contribution (2) The statement of the product’s con- toward the vegetable/fruit component of the tribution toward meal pattern requirements meal pattern requirements, of 7 CFR 210.10, § 220.8 or § 220.8a, whichever is (3) Statement specifying that the use of applicable, §§ 225.20, and 226.20. The state- the CN logo and CN statement was author- ment shall identify the contribution of a spe- ized by FNS, and cific portion of a meat/meat alternate prod- (4) The approval date. uct toward the meat/meat alternate, bread/ For example:

(d) Federal inspection means inspection of (b) The CN labeled product must be pro- food products by FSIS, AMS or USDC. duced under Federal inspection by USDA or 4. Food processors or manufacturers may USDC. The Federal inspection must be per- use the CN label statement and CN logo as formed in accordance with an approved par- defined in paragraph 3 (b) and (c) under the tial or total quality control program or following terms and conditions: standards established by the appropriate (a) The CN label must be reviewed and ap- Federal inspection service. proved at the national level by FNS and ap- (c) The CN label statement must be printed propriate USDA or USDC Federal agency re- as an integral part of the product label along sponsible for the inspection of the product. with the product name, ingredient listing,

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the inspection shield or mark for the appro- Food and Nutrition Service, Nutrition and priate inspection program, the establish- Technical Services Division, 3101 Park Cen- ment number where appropriate, and the ter Drive, Alexandria, Virginia 22302. manufacturer’s or distributor’s name and ad- [51 FR 34874, Sept. 30, 1986, as amended at 53 dress. The inspection marking for CN labeled FR 29164, Aug. 2, 1988; 60 FR 31216, June 13, non-meat, non-poultry, and non-seafood 1995; 65 FR 26912, May 9, 2000] products with the exception of juice drinks and juice drink products is established as follows: PART 215—SPECIAL MILK PROGRAM FOR CHILDREN

Sec. 215.1 General purpose and scope. 215.2 Definitions. 215.3 Administration. (d) Yields for determining the product’s 215.4 Payments of funds to States and contribution toward meal pattern require- FNSROs. ments must be calculated using the Food 215.5 Method of payment to States. Buying Guide for Child Nutrition Programs 215.6 Use of funds. (Program AID Number 1331). 215.7 Requirements for participation. 5. In the event a company uses the CN logo 215.8 Reimbursement payments. and CN label statement inappropriately, the 215.9 Effective date for reimbursement. company will be directed to discontinue the 215.10 Reimbursement procedures. use of the logo and statement and the matter 215.11 Special responsibilities of State agen- will be referred to the appropriate agency for cies. action to be taken against the company. 215.12 Claims against schools or child-care 6. Products that bear a CN label statement institutions. as set forth in paragraph 3(c) carry a war- 215.13 Management evaluations and audits. ranty. This means that if a food service au- 215.13a Determining eligibility for free milk thority participating in the Child Nutrition in child-care institutions. Programs purchases a CN labeled product 215.14 Nondiscrimination. and uses it in accordance with the manufac- 215.14a Procurement standards. turer’s directions, the school or institution 215.15 Withholding payments. will not have an audit claim filed against it 215.16 Suspension, termination and grant for the CN labeled product for noncompli- closeout procedures. ance with the meal pattern requirements of 215.17 Program information. 7 CFR 210.10, § 220.8 or § 220.8a, whichever is 215.18 Information collection/record- applicable, §§ 225.20, and 226.20. If a State or keeping—OMB assigned control numbers. Federal auditor finds that a product that is AUTHORITY: 42 U.S.C. 1772 and 1779. CN labeled does not actually meet the meal pattern requirements claimed on the label, § 215.1 General purpose and scope. the auditor will report this finding to FNS. FNS will prepare a report of the findings and This part announces the policies and send it to the appropriate divisions of FSIS prescribes the general regulations with and AMS of the USDA, National Marine respect to the Special Milk Program Fisheries Services of the USDC, Food and for Children, under the Child Nutrition Drug Administration, or the Department of Act of 1966, as amended, and sets forth Justice for action against the company. Any the general requirements for participa- or all of the following courses of action may tion in the program. The Act reads in be taken: pertinent part as follows: (a) The company’s CN label may be re- voked for a specific period of time; Section 3(a)(1) There is hereby authorized (b) The appropriate agency may pursue a to be appropriated for the fiscal year ending misbranding or mislabeling action against June 30, 1970, and for each succeeding fiscal the company producing the product; year such sums as may be necessary to en- (c) The company’s name will be circulated able the Secretary of Agriculture, under to regional FNS offices; such rules and regulations as he may deem (d) FNS will require the food service pro- in the public interest, to encourage con- gram involved to notify the State agency of sumption of fluid milk by children in the the labeling violation. United States in (A) nonprofit schools of 7. FNS is authorized to issue operational high school grade and under, except as pro- policies, procedures, and instructions for the vided in paragraph (2), which do not partici- CN Labeling Program. To apply for a CN pate in a meal service program authorized label and to obtain additional information under this Act or the National School Lunch on CN label application procedures write to: Act, and (B) nonprofit nursery schools, child CN Labels, U.S. Department of Agriculture, care centers, settlement houses, summer

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