National School Lunch Program

SUBCHAPTER A—CHILD NUTRITION PROGRAMS
APPENDIX A TO PART 210—ALTERNATE FOODS
FOR MEALS
APPENDIX B TO PART 210—CATEGORIES OF
FOODS OF MINIMAL NUTRITIONAL VALUE
APPENDIX C TO PART 210—CHILD NUTRITION
LABELING PROGRAM

PART 210—NATIONAL SCHOOL
LUNCH PROGRAM
Subpart A—General
Sec.
210.1
210.2
210.3

AUTHORITY: 42 U.S.C. 1751–1760, 1779.

General purpose and scope.
Definitions.
Administration.

SOURCE: 53 FR 29147, Aug. 2, 1988, unless
otherwise noted.

Subpart B—Reimbursement Process for
States and School Food Authorities

Subpart A—General
§ 210.1 General purpose and scope.
(a) Purpose of the program. Section 2
of the National School Lunch Act (42
U.S.C. 1751), states: ‘‘It is declared to
be the policy of Congress, as a measure
of national security, to safeguard the
health and well-being of the Nation’s
children and to encourage the domestic
consumption of nutritious agricultural
commodities and other food, by assisting the States, through grants-in-aid
and other means, in providing an adequate supply of food and other facilities for the establishment, maintenance, operation, and expansion of nonprofit school lunch programs.’’ Pursuant to this act, the Department provides States with general and special
cash assistance and donations of foods
acquired by the Department to be used
to assist schools in serving nutritious
lunches to children each school day. In
furtherance of Program objectives, participating schools shall serve lunches
that are nutritionally adequate, as set
forth in these regulations, and shall to
the extent practicable, ensure that participating children gain a full understanding of the relationship between
proper eating and good health.
(b) Scope of the regulations. This part
sets forth the requirements for participation in the National School Lunch
and Commodity School Programs. It
specifies Program responsibilities of
State and local officials in the areas of
program administration, preparation
and service of nutritious lunches, payment of funds, use of program funds,
program monitoring, and reporting and
recordkeeping requirements.

210.4 Cash and donated food assistance to
States.
210.5 Payment process to States.
210.6 Use of Federal funds.
210.7 Reimbursement for school food authorities.
210.8 Claims for reimbursement.

Subpart C—Requirements for School Food
Authority Participation
210.9 Agreement with State agency.
210.10 Nutrition standards and menu planning approaches for lunches and requirements for afterschool snacks.
210.11 Competitive food services.
210.12 Student, parent and community involvement.
210.13 Facilities management.
210.14 Resource management.
210.15 Reporting and recordkeeping.
210.16 Food service management companies.

Subpart D—Requirements for State Agency
Participation
210.17
210.18
210.19
210.20

Matching Federal funds.
Administrative reviews.
Additional responsibilities.
Reporting and recordkeeping.

Subpart E—State Agency and School Food
Authority Responsibilities
210.21
210.22
210.23

Procurement.
Audits.
Other responsibilities.

cprice-sewell on PRODPC61 with CFR

Subpart F—Additional Provisions
210.24 Withholding payments.
210.25 Suspension, termination and grant
closeout procedures.
210.26 Penalties.
210.27 Educational prohibitions.
210.28 Pilot project exemptions.
210.29 Management evaluations.
210.30 Regional office addresses.
210.31 OMB control numbers.

§ 210.2 Definitions.
For the purpose of this part:

7

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00017

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.2

7 CFR Ch. II (1–1–09 Edition)

7 CFR part 3015 means the Uniform
Federal Assistance Regulations published by the Department to implement
certain policies applicable to all Department programs. The applicable
provisions deal with competition for
discretionary grants and cooperative
agreements, costs requiring prior approval, acknowledgement of Department support in publications and
audiovisuals produced under Department programs, intergovernmental review of Department programs under
Executive Order 12372, and certain miscellaneous Department requirements.
7 CFR part 3016 means the Department’s Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments. 7 CFR part 3016 covers requirements for awards and subawards
to State and local governmental organizations under Department programs.
7 CFR part 3018 means the Department’s Common Rule regarding Governmentwide New Restrictions on Lobbying. Part 3018 implements the requirements established by section 319
of the 1990 Appropriations Act for the
Department of Interior and Related
Agencies (Pub. L. 101–121).
7 CFR part 3019 means the Department’s Uniform Administrative Requirements for Grants and Agreements
with Institutions of Higher Education,
Hospitals, and Other Non-Profit Organizations. 7 CFR part 3019 covers requirements for awards and subawards
to nongovernmental, nonprofit organizations under Department programs.
7 CFR part 3052 means the Department’s regulations implementing OMB
Circular A–133, ‘‘Audits of State, Local
Governments, and Non-Profit Organizations.’’ (For availability of OMB Circulars referenced in this definition, see
5 CFR 1310.3.)
Act means the National School Lunch
Act, as amended.
Afterschool care program means a program providing organized child care
services to enrolled school-age children
afterschool hours for the purpose of
care and supervision of children. Those
programs shall be distinct from any extracurricular programs organized primarily for scholastic, cultural or athletic purposes.

Applicable credits shall have the
meaning established in Office of Management and Budget Circulars A–87,
C(4) and A–122, Attachment A, A(5), respectively. For availability of OMB circulars referenced in this definition see
5 CFR 1310.3.
Attendance factor means a percentage
developed no less than once each school
year which accounts for the difference
between enrollment and attendance.
The attendance factor may be developed by the school food authority, subject to State agency approval, or may
be developed by the State agency. In
the absence of a local or State attendance factor, the school food authority
shall use an attendance factor developed by FNS. When taking the attendance factor into consideration, school
food authorities shall assume that all
children eligible for free and reduced
price lunches attend school at the same
rate as the general school population.
Average Daily Participation means the
average number of children, by eligibility category, participating in the
Program each operating day. These
numbers are obtained by dividing (a)
the total number of free lunches
claimed during a reporting period by
the number of operating days in the
same period; (b) the total number of reduced price lunches claimed during a
reporting period by the number of operating days in the same period; and (c)
the total number of paid lunches
claimed during a reporting period by
the number of operating days in the
same period.
Child means—(a) a student of high
school grade or under as determined by
the State educational agency, who is
enrolled in an educational unit of high
school grade or under as described in
paragraphs (a) and (b) of the definition
of ‘‘School,’’ including students who
are mentally or physically disabled as
defined by the State and who are participating in a school program established for the mentally or physically
disabled; or (b) a person under 21 chronological years of age who is enrolled in
an institution or center as described in
paragraph (c) of the definition of
‘‘School;’’ or (c) For purposes of reimbursement for meal supplements served
in afterschool care programs, an individual enrolled in an afterschool care

8

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00018

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.2

program operated by an eligible school
who is 12 years of age or under, or in
the case of children of migrant workers
and children with disabilities, not more
than 15 years of age.
CND means the Child Nutrition Division of the Food and Nutrition Service
of the Department.
Commodity School Program means the
Program under which participating
schools operate a nonprofit lunch program in accordance with this part and
receive donated food assistance in lieu
of general cash assistance. Schools participating in the Commodity School
Program shall also receive special cash
and donated food assistance in accordance with § 210.4(c).
Contractor means a commercial enterprise, public or nonprofit private organization or individual that enters
into a contract with a school food authority.
Cost reimbursable contract means a
contract that provides for payment of
incurred costs to the extent prescribed
in the contract, with or without a fixed
fee.
Days means calendar days unless otherwise specified.
Department means the United States
Department of Agriculture.
Distributing agency means a State
agency which enters into an agreement
with the Department for the distribution to schools of donated foods pursuant to part 250 of this chapter.
Donated foods means food commodities donated by the Department for
use in nonprofit lunch programs.
Fiscal year means a period of 12 calendar months beginning October 1 of
any year and ending with September 30
of the following year.
Fixed fee means an agreed upon
amount that is fixed at the inception of
the contract. In a cost reimbursable
contract, the fixed fee includes the
contractor’s direct and indirect administrative costs and profit allocable to
the contract.
FNS means the Food and Nutrition
Service, United States Department of
Agriculture.
FNSRO means the appropriate Regional Office of the Food and Nutrition
Service of the Department.
Food component means one of the four
food groups which comprise reimburs-

able meals planned under a food-based
menu planning approach. The four food
components are: meat/meat alternate;
grains/breads; fruits/vegetables; and
milk.
Food item means one of the five foods
offered in lunches under a food-based
menu planning approach: meat/meat
alternate; grains/breads; two servings
of fruits/vegetables; and milk.
Food service management company
means a commercial enterprise or a
nonprofit organization which is or may
be contracted with by the school food
authority to manage any aspect of the
school food service.
Free lunch means a lunch served
under the Program to a child from a
household eligible for such benefits
under 7 CFR part 245 and for which neither the child nor any member of the
household pays or is required to work.
Local educational agency means a public board of education or other public
or private nonprofit authority legally
constituted within a State for either
administrative control or direction of,
or to perform a service function for,
public or private nonprofit elementary
schools or secondary schools in a city,
county, township, school district, or
other political subdivision of a State,
or for a combination of school districts
or counties that is recognized in a
State as an administrative agency for
its public or private nonprofit elementary schools or secondary schools. The
term also includes any other public or
private nonprofit institution or agency
having administrative control and direction of a public or private nonprofit
elementary school or secondary school,
including residential child care institutions, Bureau of Indian Affairs schools,
and educational service agencies and
consortia of those agencies, as well as
the State educational agency in a
State or territory in which the State
educational agency is the sole educational agency for all public or private nonprofit schools.
Lunch means a meal service that
meets the applicable nutrition standards and portion sizes in § 210.10 for
lunches.
Menu item means, under Nutrient
Standard Menu Planning or Assisted
Nutrient Standard Menu Planning, any
single food or combination of foods. All

9

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00019

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.2

7 CFR Ch. II (1–1–09 Edition)

menu items or foods offered as part of
the reimbursable meal may be considered as contributing towards meeting
the nutrition standards provided in
§ 210.10, except for those foods that are
considered as foods of minimal nutritional value as provided for in
§ 210.11(a)(2) which are not offered as
part of a menu item in a reimbursable
meal. For the purposes of a reimbursable lunch, a minimum of three menu
items must be offered, one of which
must be an entree (a combination of
foods or a single food item that is offered as the main course) and one of
which must be fluid milk. Under offer
versus serve, a student shall select, at
a minimum, an entree and one other
menu item. If more than three menu
items are offered, the student may decline up to two menu items; however,
the entree cannot be declined.
National School Lunch Program means
the Program under which participating
schools operate a nonprofit lunch program in accordance with this part.
General and special cash assistance and
donated food assistance are made
available to schools in accordance with
this part.
Net cash resources means all monies,
as determined in accordance with the
State agency’s established accounting
system, that are available to or have
accrued to a school food authority’s
nonprofit school food service at any
given time, less cash payable. Such
monies may include, but are not limited to, cash on hand, cash receivable,
earnings on investments, cash on deposit and the value of stocks, bonds or
other negotiable securities.
Nonprofit means, when applied to
schools or institutions eligible for the
Program, exempt from income tax
under section 501(c)(3) of the Internal
Revenue Code of 1986.
Nonprofit school food service means all
food service operations conducted by
the school food authority principally
for the benefit of schoolchildren, all of
the revenue from which is used solely
for the operation or improvement of
such food services.
Nonprofit school food service account
means the restricted account in which
all of the revenue from all food service
operations conducted by the school
food authority principally for the ben-

efit of school children is retained and
used only for the operation or improvement of the nonprofit school food service.
Nutrient Standard Menu Planning/Assisted Nutrient Standard Menu Planning
means ways to develop lunch menus
based on the analysis for nutrients in
the menu items and foods offered over
a school week to determine if specific
levels for a set of key nutrients and
calories were met in accordance with
§ 210.10(i)(5). However, for the purposes
of Assisted Nutrient Standard Menu
Planning, lunch menu planning and
analysis are completed by other entities and must incorporate the production quantities needed to accommodate
the specific service requirements of a
particular school or school food authority in accordance with § 210.10(j).
OIG means the Office of the Inspector
General of the Department.
Point of Service means that point in
the food service operation where a determination can accurately be made
that a reimbursable free, reduced price
or paid lunch has been served to an eligible child.
Program means the National School
Lunch Program and the Commodity
School Program.
Reduced price lunch means a lunch
served under the Program: (a) to a
child from a household eligible for such
benefits under 7 CFR part 245; (b) for
which the price is less than the school
food authority designated full price of
the lunch and which does not exceed
the maximum allowable reduced price
specified under 7 CFR part 245; and (c)
for which neither the child nor any
member of the household is required to
work.
Reimbursement means Federal cash
assistance including advances paid or
payable to participating schools for
lunches meeting the requirements of
§ 210.10 and served to eligible children.
Revenue, when applied to nonprofit
school food service, means all monies
received by or accruing to the nonprofit school food service in accordance
with the State agency’s established accounting system including, but not
limited to, children’s payments, earnings on investments, other local revenues, State revenues, and Federal cash
reimbursements.

10

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00020

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.2

School means: (a) An educational unit
of high school grade or under, recognized as part of the educational system
in the State and operating under public
or nonprofit private ownership in a single building or complex of buildings;
(b) any public or nonprofit private
classes of preprimary grade when they
are conducted in the aforementioned
schools; or (c) any public or nonprofit
private residential child care institution, or distinct part of such institution, which operates principally for the
care of children, and, if private, is licensed to provide residential child care
services under the appropriate licensing code by the State or a subordinate
level of government, except for residential summer camps which participate
in the Summer Food Service Program
for Children, Job Corps centers funded
by the Department of Labor, and private foster homes. The term ‘‘residential child care institutions’’ includes,
but is not limited to: homes for the
mentally, emotionally or physically
impaired, and unmarried mothers and
their infants; group homes; halfway
houses; orphanages; temporary shelters
for abused children and for runaway
children; long-term care facilities for
chronically ill children; and juvenile
detention centers. A long-term care facility is a hospital, skilled nursing facility, intermediate care facility, or
distinct part thereof, which is intended
for the care of children confined for 30
days or more.
School food authority means the governing body which is responsible for
the administration of one or more
schools; and has the legal authority to
operate the Program therein or be otherwise approved by FNS to operate the
Program.
School week means the period of time
used to determine compliance with the
nutrition standards and the appropriate calorie and nutrient levels in
§ 210.10. Further, if applicable, school
week is the basis for conducting Nutrient Standard Menu Planning or Assisted Nutrient Standard Menu Planning for lunches as provided in
§ 210.10(i) and § 210.10(j). The period
shall be a normal school week of five
consecutive days; however, to accommodate shortened weeks resulting from
holidays and other scheduling needs,

the period shall be a minimum of three
consecutive days and a maximum of
seven consecutive days. Weeks in
which school lunches are offered less
than three times shall be combined
with either the previous or the coming
week.
School year means a period of 12 calendar months beginning July 1 of any
year and ending June 30 of the following year.
Secretary means the Secretary of Agriculture.
State means any of the 50 States, District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands,
Guam, and, as applicable, American
Samoa and the Commonwealth of the
Northern Marianas.
State agency means (a) the State educational agency; (b) any other agency
of the State which has been designated
by the Governor or other appropriate
executive or legislative authority of
the State and approved by the Department to administer the Program in
schools, as specified in § 210.3(b); or (c)
the FNSRO, where the FNSRO administers the Program as specified in
§ 210.3(c).
State educational agency means, as the
State legislature may determine, (a)
the chief State school officer (such as
the State Superintendent of Public Instruction, Commissioner of Education,
or similar officer), or (b) a board of
education controlling the State department of education.
Student with disabilities means any
child who has a physical or mental impairment as defined in § 15b.3 of the Department’s nondiscrimination regulations (7 CFR part 15b).
Subsidized lunch (paid lunch) means a
lunch served to children who are either
not eligible for or elect not to receive
the free or reduced price benefits offered under 7 CFR part 245. The Department subsidizes each paid lunch with
both general cash assistance and donated foods. Although a paid lunch student pays for a large portion of his or
her lunch, the Department’s subsidy
accounts for a significant portion of
the cost of that lunch.
Yogurt means commercially prepared
coagulated milk products obtained by
the fermentation of specific bacteria,

11

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00021

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

§ 210.3

7 CFR Ch. II (1–1–09 Edition)

that meet milk fat or milk solid requirements and to which flavoring
foods or ingredients may be added.
These products are covered by the Food
and Drug Administration’s Definition
and Standard of Identity for yogurt,
lowfat yogurt, and nonfat yogurt, 21
CFR 131.200, 21 CFR 131.203, and 21 CFR
131.206, respectively.

profit private schools or public or nonprofit private residential child care institutions have been under continuous
FNS administration since October 1,
1980, unless the administration of the
Program in such schools is assumed by
the State. The FNSRO will, in each
State in which it administers the Program, assume all responsibilities of a
State agency as set forth in this part
and part 245 of this chapter as appropriate. References in this part to
‘‘State agency’’ include FNSRO, as applicable, when it is the agency administering the Program.
(d) School food authorities. The school
food authority shall be responsible for
the administration of the Program in
schools. State agencies shall ensure
that school food authorities administer
the Program in accordance with the
applicable requirements of this part;
part 245 of this chapter; parts 15, 15a,
15b, and 3016 or 3019, as applicable, of
this title; and FNS instructions.

[53 FR 29147, Aug. 2, 1988, as amended at 54
FR 12580, Mar. 28, 1989; 56 FR 32939, July 17,
1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207,
June 13, 1995; 62 FR 10189, Mar. 6, 1997; 64 FR
50740, Sept. 20, 1999; 65 FR 26912, May 9, 2000;
71 FR 39515, July 13, 2006; 72 FR 10892, Mar.
12, 2007; 72 FR 61490, Oct. 31, 2007; 72 FR 63790,
Nov. 13, 2007]

cprice-sewell on PRODPC61 with CFR

§ 210.3

Administration.

(a) FNS. FNS will act on behalf of the
Department in the administration of
the Program. Within FNS, the CND
will be responsible for Program administration.
(b) States. Within the States, the responsibility for the administration of
the Program in schools, as defined in
§ 210.2, shall be in the State educational
agency. If the State educational agency is unable to administer the Program
in public or private nonprofit residential child care institutions or nonprofit
private schools, then Program administration for such schools may be assumed by FNSRO as provided in paragraph (c) of this section, or such other
agency of the State as has been designated by the Governor or other appropriate executive or legislative authority of the State and approved by
the Department to administer such
schools. Each State agency desiring to
administer the Program shall enter
into a written agreement with the Department for the administration of the
Program in accordance with the applicable requirements of this part; parts
235 and 245 of this chapter; parts 15, 15a,
15b, 3015 and 3016 of this title; and FNS
instructions.
(c) FNSRO. The FNSRO will administer the Program in nonprofit private
schools or public or nonprofit private
residential child care institutions if
the State agency is prohibited by law
from disbursing Federal funds paid to
such schools. In addition, the FNSRO
will continue to administer the Program in those States in which non-

[53 FR 29147, Aug. 2, 1988, as amended at 71
FR 39515, July 13, 2006]

Subpart B—Reimbursement Process for States and School
Food Authorities
§ 210.4 Cash and donated food assistance to States.
(a) General. To the extent funds are
available, FNS will make cash assistance available in accordance with the
provisions of this section to each State
agency for lunches and meal supplements served to children under the National School Lunch and Commodity
School Programs. To the extent donated foods are available, FNS will
provide donated food assistance to distributing agencies for each lunch
served in accordance with the provisions of this part and part 250 of this
chapter.
(b) Assistance for the National School
Lunch Program. The Secretary will
make cash and/or donated food assistance available to each State agency
and distributing agency, as appropriate, administering the National
School Lunch Program, as follows:
(1) Cash assistance for lunches: Cash
assistance payments are composed of a

12

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00022

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.4

general cash assistance payment, authorized under section 4 of the Act, and
a special cash assistance payment, authorized under section 11 of the Act.
General cash assistance is provided to
each State agency for all lunches
served to children in accordance with
the provisions of the National School
Lunch Program. Special cash assistance is provided to each State agency
for lunches served under the National
School Lunch Program to children determined eligible for free or reduced
price lunches in accordance with part
245 of this chapter. The total general
cash assistance paid to each State for
any fiscal year shall not exceed the
lesser of amounts reported to FNS as
reimbursed to school food authorities
in accordance with § 210.5(d)(3) or the
total calculated by multiplying the
number of lunches reported in accordance with § 210.5(d)(1) for each month of
service during the fiscal year, by the
applicable national average payment
rate prescribed by FNS. The total special assistance paid to each State for
any fiscal year shall not exceed the
lesser of amounts reported to FNS as
reimbursed to school food authorities
in accordance with § 210.5(d)(3) or the
total calculated by multiplying the
number of free and reduced price
lunches reported in accordance with
§ 210.5(d)(1) for each month of service
during the fiscal year by the applicable
national average payment rate prescribed by FNS. In accordance with
section 11 of the Act, FNS will prescribe annual adjustments to the per
meal national average payment rate
(general cash assistance) and the special assistance national average payment rates (special cash assistance)
which are effective on July 1 of each
year. These adjustments, which reflect
changes in the food away from home
series of the Consumer Price Index for
all Urban Consumers, are annually announced by Notice in July of each year
in the FEDERAL REGISTER. FNS will
also establish maximum per meal rates
of reimbursement within which a State
may vary reimbursement rates to
school food authorities. These maximum rates of reimbursement are established at the same time and announced in the same Notice as the national average payment rates.

(2) Donated food assistance. For each
school year, FNS will provide distributing agencies with donated foods for
lunches served under the National
School Lunch Program as provided
under part 250 of this chapter. The per
lunch value of donated food assistance
is adjusted by the Secretary annually
to reflect changes as required under
section 6 of the Act. These adjustments, which reflect changes in the
Price Index for Foods Used in Schools
and Institutions, are effective on July 1
of each year and are announced by Notice in the FEDERAL REGISTER in July
of each year.
(3) Cash assistance for meal supplements. For those eligible schools (as defined in § 210.10(n)(1)) operating afterschool care programs and electing to
serve meal supplements to enrolled
children, funds shall be made available
to each State agency, each school year
in an amount no less than the sum of
the products obtained by multiplying:
(i) The number of meal supplements
served in the afterschool care program
within the State to children from families that do not satisfy the income
standards for free and reduced price
school meals by 2.75 cents;
(ii) The number of meal supplements
served in the afterschool care program
within the State to children from families that satisfy the income standard
for free school meals by 30 cents;
(iii) The number of meal supplements
served in the afterschool care program
within the State to children from families that satisfy the income standard
for reduced price school meals by 15
cents.
(4) The rates in paragraph (b)(3) are
the base rates established in August
1981 for the CACFP. FNS shall prescribe annual adjustments to these
rates in the same Notice as the National Average Payment Rates for
lunches. These adjustments shall ensure that the reimbursement rates for
meal supplements served under this
part are the same as those implemented for meal supplements in the
CACFP.
(c) Assistance for the Commodity School
Program. FNS will make special cash
assistance available to each State
agency for lunches served in commodity schools in the same manner as

13

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00023

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

§ 210.5

7 CFR Ch. II (1–1–09 Edition)
food authorities through procedures established by FNS in accordance with 7
CFR part 3016. State agencies shall
limit requests for funds to such times
and amounts as will permit prompt
payment of claims or authorized advances. The State agency shall disburse funds received from such requests without delay for the purpose
for which drawn. FNS may, at its option, reimburse a State agency by
Treasury Check. FNS will pay by
Treasury Check with funds available in
settlement of a valid claim if payment
for that claim cannot be made within
the grant closeout period specified in
paragraph (d) of this section.
(b) Cash-in-lieu of donated foods. All
Federal funds to be paid to any State
in place of donated foods will be made
available as provided in part 240 of this
chapter.
(c) Recovery of funds. FNS will recover any Federal funds made available
to the State agency under this part
which are in excess of obligations reported at the end of each fiscal year in
accordance with the reconciliation procedures specified in paragraph (d) of
this section. Such recoveries shall be
reflected by a related adjustment in
the State agency’s Letter of Credit.
(d) Substantiation and reconciliation
process. Each State agency shall maintain Program records as necessary to
support the reimbursement payments
made to school food authorities under
§ 210.7 and § 210.8 and the reports submitted to FNS under this paragraph.
The State agency shall ensure such
records are retained for a period of 3
years or as otherwise specified in
§ 210.23(c).
(1) Monthly report. Each State agency
shall submit a final Report of School
Program Operations (FNS–10) to FNS
for each month. The final reports shall
be limited to claims submitted in accordance with § 210.8 of this part. For
the month of October, the final report
shall include the total number of children approved for free lunches, the
total number of children approved for
reduced price lunches, and the total
number of children enrolled in participating public schools, private schools,
and residential child care institutions,
respectively, as of the last day of operation in October. The final reports

special cash assistance is provided in
the National School Lunch Program.
Payment of such amounts to State
agencies is subject to the reporting requirements contained in § 210.5(d). FNS
will provide donated food assistance in
accordance with part 250 of this chapter. Of the total value of donated food
assistance to which it is entitled, the
school food authority may elect to receive cash payments of up to 5 cents
per lunch served in its commodity
school(s) for donated foods processing
and handling expenses. Such expenses
include any expenses incurred by or on
behalf of a commodity school for processing or other aspects of the preparation, delivery, and storage of donated
foods. The school food authority may
have all or part of these cash payments
retained by the State agency for use on
its behalf for processing and handling
expenses by the State agency or it may
authorize the State agency to transfer
to the distributing agency all or any
part of these payments for use on its
behalf for these expenses. Payment of
such amounts to State agencies is subject to the reporting requirements contained in § 210.5(d). The total value of
donated food assistance is calculated
on a school year basis by adding:
(1) The applicable national average
payment rate (general cash assistance)
prescribed by the Secretary for the period of July 1 through June 30 multiplied by the total number of lunches
served during the school year under the
Commodity School Program; and
(2) The national per lunch average
value of donated foods prescribed by
the Secretary for the period of July 1
through June 30 multiplied by the total
number of lunches served during the
school year under the Commodity
School Program.

cprice-sewell on PRODPC61 with CFR

[53 FR 29147, Aug. 2, 1988, as amended at 58
FR 42487, Aug. 10, 1993; 60 FR 31207, June 13,
1995; 65 FR 26912, May 9, 2000]

§ 210.5 Payment process to States.
(a) Grant award. FNS will specify the
terms and conditions of the State agency’s grant in a grant award document
and will generally make payments
available by means of a Letter of Credit issued in favor of the State agency.
The State agency shall obtain funds for
reimbursement to participating school

14

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00024

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.7
out special developmental projects. Advance payments to school food authorities may be made at such times and in
such amounts as are necessary to meet
the current fiscal obligations. All Federal funds paid to any State in place of
donated foods shall be used as provided
in part 240 of this chapter.

shall be postmarked and/or submitted
no later than 90 days following the last
day of the month covered by the report. States shall not receive Program
funds for any month for which the final
report is not submitted within this
time limit unless FNS grants an exception. Upward adjustments to a State’s
report shall not be made after 90 days
from the month covered by the report
unless authorized by FNS. Downward
adjustments to a State’s report shall
always be made regardless of when it is
determined that such adjustments are
necessary. FNS authorization is not required for downward adjustments. Any
adjustments to a State’s report shall
be reported to FNS in accordance with
procedures established by FNS.
(2) Quarterly report. Each State agency shall also submit to FNS a quarterly Financial Status Report (SF–269)
on the use of Program funds. Such reports shall be postmarked and/or submitted no later than 30 days after the
end of each fiscal year quarter.
(3) End of year report. Each State
agency shall submit a final Financial
Status Report (SF–269) for each fiscal
year. This final fiscal year grant closeout report shall be postmarked and/or
submitted to FNS within 120 days after
the end of each fiscal year or part
thereof that the State agency administered the Program. Obligations shall be
reported only for the fiscal year in
which they occur. FNS will not be responsible for reimbursing Program obligations reported later than 120 days
after the close of the fiscal year in
which they were incurred. Grant closeout procedures are to be carried out in
accordance with 7 CFR part 3016.

[53 FR 29147, Aug. 2, 1988, as amended at 58
FR 42487, Aug. 10, 1993]

§ 210.7 Reimbursement for school food
authorities.
(a) General. Reimbursement payments to finance nonprofit school food
service operations shall be made only
to school food authorities operating
under a written agreement with the
State agency. Subject to the provisions
of § 210.8(c), such payments may be
made for lunches and meal supplements served in accordance with provisions of this part and part 245 in the
calendar month preceding the calendar
month in which the agreement is executed. These reimbursement payments
include general cash assistance for all
lunches served to children under the
National School Lunch Program and
special cash assistance payments for
free or reduced price lunches served to
children determined eligible for such
benefits under the National School
Lunch and Commodity School Programs. Reimbursement payments shall
also be made for meal supplements
served to eligible children in afterschool care programs in accordance
with
the
rates
established
in
§ 210.4(b)(3). Approval shall be in accordance with part 245 of this chapter.
(b) Assignment of rates. At the beginning of each school year, State agencies shall establish the per meal rates
of reimbursement for school food authorities participating in the Program.
These rates of reimbursement may be
assigned at levels based on financial
need; except that, the rates are not to
exceed the maximum rates of reimbursement established by the Secretary under § 210.4(b) and are to permit
reimbursement for the total number of
lunches in the State from funds available under § 210.4. Within each school
food authority, the State agency shall
assign the same rate of reimbursement
from general cash assistance funds for
all lunches served to children under the

cprice-sewell on PRODPC61 with CFR

[53 FR 29147, Aug. 2, 1988, as amended at 54
FR 12580, Mar. 28, 1989; 56 FR 32939, July 17,
1991; 71 FR 39516, July 13, 2006]

§ 210.6 Use of Federal funds.
General. State agencies shall use Federal funds made available under the
Program to reimburse or make advance
payments to school food authorities in
connection with lunches and meal supplements served in accordance with the
provisions of this part; except that, with
the approval of FNS, any State agency
may reserve an amount up to one percent of the funds earned in any fiscal
year under this part for use in carrying

15

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00025

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.7

7 CFR Ch. II (1–1–09 Edition)

Program. Assigned rates of reimbursement may be changed at any time by
the State agency, provided that notice
of any change is given to the school
food authority. The total general and
special cash assistance reimbursement
paid to any school food authority for
lunches served to children during the
school year are not to exceed the sum
of the products obtained by multiplying the total reported number of
lunches, by type, served to eligible
children during the school year by the
applicable maximum per lunch reimbursements prescribed for the school
year for each type of lunch.
(c) Reimbursement limitations. To be
entitled to reimbursement under this
part, each school food authority shall
ensure that Claims for Reimbursement
are limited to the number of free, reduced price and paid lunches and meal
supplements that are served to children eligible for free, reduced price and
paid lunches and meal supplements, respectively, for each day of operation.
(1) Lunch count system. To ensure that
the Claim for Reimbursement accurately reflects the number of lunches
and meal supplements served to eligible children, the school food authority
shall, at a minimum:
(i) Correctly approve each child’s eligibility for free and reduced price
lunches and meal supplements based on
the requirements prescribed under 7
CFR part 245;
(ii) Maintain a system to issue benefits and to update the eligibility of
children approved for free or reduced
price lunches and meal supplements.
The system shall:
(A) Accurately reflect eligibility status as well as changes in eligibility
made after the initial approval process
due to verification findings, transfers,
reported changes in income or household size, etc.; and
(B) Make the appropriate changes in
eligibility after the initial approval
process on a timely basis so that the
mechanism the school food authority
uses to identify currently eligible children provides a current and accurate
representation of eligible children.
Changes in eligibility which result in
increased benefit levels shall be made
as soon as possible but no later than 3
operating days of the date the school

food authority makes the final decision
on a child’s eligibility status. Changes
in eligibility which result in decreased
benefit levels shall be made as soon as
possible but no later than 10 operating
days of the date the school food authority makes the final decision on the
child’s eligibility status.
(iii) Base Claims for Reimbursement
on lunch counts, taken daily at the
point of service, which correctly identify the number of free, reduced price
and paid lunches served to eligible children;
(iv) Correctly record, consolidate and
report those lunch and supplement
counts on the Claim for Reimbursement; and
(v) Ensure that Claims for Reimbursement do not request payment for
any excess lunches produced, as prohibited in § 210.10(a)(2), or non-Program
lunches (i.e., a la carte or adult
lunches) or for more than one meal
supplement per child per day.
(2) Point of service alternatives. (i)
State agencies may authorize alternatives to the point of service lunch
counts provided that such alternatives
result in accurate, reliable counts of
the number of free, reduced price and
paid lunches served, respectively, for
each serving day. State agencies are
encouraged to issue guidance which
clearly identifies acceptable point of
service alternatives and instructions
for proper implementation. School food
authorities may select one of the State
agency approved alternatives without
prior approval.
(ii) In addition, on a case-by-case
basis, State agencies may authorize
school food authorities to use other alternatives to the point of service lunch
count; provided that such alternatives
result in an accurate and reliable lunch
count system. Any request to use an alternative lunch counting method which
has not been previously authorized
under paragraph (2)(i) is to be submitted in writing to the State agency
for approval. Such request shall provide detail sufficient for the State
agency to assess whether the proposed
alternative would provide an accurate
and reliable count of the number of
lunches, by type, served each day to eligible children. The details of each approved alternative shall be maintained

16

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00026

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.8
paid lunches, respectively, served for
each day of operation.
(2) School food authority claims review
process. Prior to the submission of a
monthly Claim for Reimbursement,
each school food authority shall review
the lunch count data for each school
under its jurisdiction to ensure the accuracy of the monthly Claim for Reimbursement. The objective of this review
is to ensure that monthly claims include only the number of free, reduced
price and paid lunches served on any
day of operation to children currently
eligible for such lunches.
(i) Any school food authority that
was found by its most recent administrative review conducted in accordance
with § 210.18, to have no meal counting
and claiming violations may:
(A) Develop internal control procedures that ensure accurate meal
counts. The school food authority shall
submit any internal controls developed
in accordance with this paragraph to
the State agency for approval and, in
the absence of specific disapproval
from the State agency, shall implement such internal controls. The State
agency shall establish procedures to
promptly notify school food authorities
of any modifications needed to their
proposed internal controls or of denial
of unacceptable submissions. If the
State agency disapproves the proposed
internal controls of any school food authority, it reserves the right to require
the school food authority to comply
with the provisions of paragraph (a)(3)
of this section; or
(B) Comply with the requirements of
paragraph (a)(3) of this section.
(ii) Any school food authority that
was identified in the most recent administrative review conducted in accordance with § 210.18, or in any other
oversight activity, as having meal
counting and claiming violations shall
comply with the requirements in paragraph (a)(3) of this section.
(3) Edit checks. (i) The following procedure shall be followed for school food
authorities identified in paragraph
(a)(2)(ii) of this section, by other school
food authorities at State agency option, or, at their own option, by school
food authorities identified in paragraph
(a)(2)(i) of this section: the school food
authority shall compare each school’s

on file at the State agency for review
by FNS.
(d) The State agency shall reimburse
the school food authority for meal supplements served in eligible schools (as
defined in § 210.10(n)(1)) operating afterschool care programs under the NSLP
in accordance with the rates established in § 210.4(b).
[53 FR 29147, Aug. 2, 1988, as amended at 54
FR 12581, Mar. 28, 1989; 56 FR 32939, July 17,
1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207,
June 13, 1995; 65 FR 26912, May 9, 2000]

cprice-sewell on PRODPC61 with CFR

§ 210.8

Claims for reimbursement.

(a) Internal controls. The school food
authority shall establish internal controls which ensure the accuracy of
lunch counts prior to the submission of
the monthly Claim for Reimbursement.
At a minimum, these internal controls
shall include: an on-site review of the
lunch counting and claiming system
employed by each school within the jurisdiction of the school food authority;
comparisons of daily free, reduced
price and paid lunch counts against
data which will assist in the identification of lunch counts in excess of the
number of free, reduced price and paid
lunches served each day to children eligible for such lunches; and a system for
following up on those lunch counts
which suggest the likelihood of lunch
counting problems.
(1) On-site reviews. Every school year,
each school food authority with more
than one school shall perform no less
than one on-site review of the lunch
counting and claiming system employed by each school under its jurisdiction. The on-site review shall take
place prior to February 1 of each school
year. Further, if the review discloses
problems with a school’s meal counting
or claiming procedures, the school food
authority shall: ensure that the school
implements corrective action; and,
within 45 days of the review, conducts
a follow-up on-site review to determine
that the corrective action resolved the
problems. Each on-site review shall ensure that the school’s claim is based on
the counting system authorized by the
State agency under § 210.7(c) of this
part and that the counting system, as
implemented, yields the actual number
of reimbursable free, reduced price and

17

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00027

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.8

7 CFR Ch. II (1–1–09 Edition)

daily counts of free, reduced price and
paid lunches against the product of the
number of children in that school currently eligible for free, reduced price
and paid lunches, respectively, times
an attendance factor.
(ii) School food authorities that are
identified in subsequent administrative
reviews conducted in accordance with
§ 210.18 as not having meal counting
and claiming violations and that are
correctly complying with the procedures in paragraph (a)(3)(i) of this section have the option of developing internal controls in accordance with
paragraph (a)(2)(i) of this section.
(4) Follow-up activity. The school food
authority shall promptly follow-up
through phone contact, on-site visits
or other means when the internal controls used by schools in accordance
with paragraph (a)(2)(i) of this section
or the claims review process used by
schools in accordance with paragraphs
(a)(2)(ii) and (a)(3) of this section suggest the likelihood of lunch count problems. When problems or errors are
identified, the lunch counts shall be
corrected prior to submission of the
monthly Claim for Reimbursement.
Improvements to the lunch count system shall also be made to ensure that
the lunch counting system consistently
results in lunch counts of the actual
number of reimbursable free, reduced
price and paid lunches served for each
day of operation.
(5) Recordkeeping. School food authorities shall maintain on file, each
month’s Claim for Reimbursement and
all data used in the claims review process, by school. Records shall be retained as specified in § 210.23(c) of this
part. School food authorities shall
make this information available to the
Department and the State agency upon
request.
(b) Monthly claims. To be entitled to
reimbursement under this part, each
school food authority shall submit to
the State agency, a monthly Claim for
Reimbursement, as described in paragraph (c) of this section.
(1) Submission timeframes. A final
Claim for Reimbursement shall be
postmarked or submitted to the State
agency not later than 60 days following
the last day of the full month covered
by the claim. State agencies may es-

tablish shorter deadlines at their discretion. Claims not postmarked and/or
submitted within 60 days shall not be
paid with Program funds unless otherwise authorized by FNS.
(2) State agency claims review process.
The State agency shall review each
school food authority’s Claim for Reimbursement, on a monthly basis, in
an effort to ensure that monthly
claims are limited to the number of
free and reduced price lunches served,
by type, to eligible children.
(i) The State agency shall, at a minimum, compare the number of free and
reduced price lunches claimed to the
number of children approved for free
and reduced price lunches enrolled in
the school food authority for the
month of October times the days of operation times the attendance factor
employed by the school food authority
in accordance with paragraph (a)(3) of
this section or the internal controls
used by schools in accordance with
paragraph (a)(2)(i) of this section. At
its discretion, the State agency may
conduct this comparison against data
which reflects the number of children
approved for free and reduced price
lunches for a more current month(s) as
collected pursuant to paragraph (c)(2)
of this section.
(ii) In lieu of conducting the claims
review specified in paragraph (b)(2)(i)
of this section, the State agency may
conduct alternative analyses for those
Claims for Reimbursement submitted
by residential child care institutions.
Such alternatives analyses shall meet
the objective of ensuring that the
monthly Claims for Reimbursement
are limited to the numbers of free and
reduced price lunches served, by type,
to eligible children.
(3) Follow-up activity. The State agency shall promptly follow-up through
phone contact, on-site visits, or other
means when the claims review process
suggests the likelihood of lunch count
problems.
(4) Corrective action. The State agency
shall promptly take corrective action
with respect to any Claim for Reimbursement which includes more than
the number of lunches served, by type,
to eligible children. In taking corrective action, State agencies may make
adjustments on claims filed within the

18

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00028

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.9

60-day deadline if such adjustments are
completed within 90 days of the last
day of the claim month and are reflected in the final Report of School
Program Operations (FNS–10) for the
claim month required under § 210.5(d) of
this part. Upward adjustments in Program funds claimed which are not reflected in the final FNS–10 for the
claim month shall not be made unless
authorized by FNS. Except that, upward adjustments for the current and
prior fiscal years resulting from any
review or audit may be made, at the
discretion of the State agency. Downward adjustments in amounts claimed
shall always be made, without FNS authorization, regardless of when it is determined that such adjustments are
necessary.
(c) Content of claim. The Claim for Reimbursement shall include data in sufficient detail to justify the reimbursement claimed and to enable the State
agency to provide the Report of School
Program Operations required under
§ 210.5(d) of this part. Such data shall
include, at a minimum, the number of
free, reduced price and paid lunches
and meal supplements served to eligible children. The claim shall be signed
by a school food authority official.
(1) Consolidated claim. The State
agency may authorize a school food authority to submit a consolidated Claim
for Reimbursement for all schools
under its jurisdiction, provided that, the
data on each school’s operations required in this section are maintained
on file at the local office of the school
food authority and the claim separates
consolidated data for commodity
schools from data for other schools.
Unless otherwise approved by FNS, the
Claim for Reimbursement for any
month shall include only lunches and
meal supplements served in that month
except if the first or last month of Program operations for any school year
contains 10 operating days or less, such
month may be combined with the
Claim for Reimbursement for the appropriate adjacent month. However,
Claims for Reimbursement may not
combine operations occurring in two
fiscal years. If a single State agency
administers any combination of the
Child Nutrition Programs, a school
food authority shall be able to use a

common claim form with respect to
claims for reimbursement for meals
served under those programs.
(2) October data. For the month of October, the State agency shall also obtain, either through the Claim for Reimbursement or other means, the total
number of children approved for free
lunches and meal supplements, the
total number of children approved for
reduced price lunches and meal supplements, and the total number of children enrolled in the school food authority as of the last day of operation in
October. The school food authority
shall submit this data to the State
agency no later than December 31 of
each year. State agencies may establish shorter deadlines at their discretion. In addition, the State agency may
require school food authorities to provide this data for a more current
month if for use in the State agency
claims review process under paragraph
(c)(2) of this section.
(d) Advance funds. The State agency
may advance funds available for the
Program to a school food authority in
an amount equal to the amount of reimbursement estimated to be needed
for one month’s operation. Following
the receipt of claims, the State agency
shall make adjustments, as necessary,
to ensure that the total amount of payments received by the school food authority for the fiscal year does not exceed an amount equal to the number of
lunches and meal supplements by reimbursement type served to children
times the respective payment rates assigned by the State in accordance with
§ 210.7(b). The State agency shall recover advances of funds to any school
food authority failing to comply with
the 60-day claim submission requirements in paragraph (b) of this section.
[53 FR 29147, Aug. 2, 1988, as amended at 54
FR 12581, Mar. 28, 1989; 56 FR 32940, July 17,
1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207,
June 13, 1995; 64 FR 50740, Sept. 20, 1999]

Subpart
C—Requirements
for
School Food Authority Participation
§ 210.9 Agreement with State agency.
(a) Application. An official of a school
food authority shall make written application to the State agency for any

19

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00029

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.9

7 CFR Ch. II (1–1–09 Edition)

school in which it desires to operate
the Program. Applications shall provide the State agency with sufficient
information to determine eligibility.
The school food authority shall also
submit for approval a Free and Reduced Price Policy Statement in accordance with part 245 of this chapter.
(b) Agreement. Each school food authority approved to participate in the
program shall enter into a written
agreement with the State agency that
may be amended as necessary. Nothing
in the preceding sentence shall be construed to limit the ability of the State
agency to suspend or terminate the
agreement in accordance with § 210.25.
If a single State agency administers
any combination of the Child Nutrition
Programs, that State agency shall provide each school food authority with a
single agreement with respect to the
operation of those programs. The
agreement shall contain a statement to
the effect that the ‘‘School Food Authority and participating schools under
its jurisdiction, shall comply with all
provisions of 7 CFR parts 210 and 245.’’
This agreement shall provide that each
school food authority shall, with respect to participating schools under its
jurisdiction:
(1) Maintain a nonprofit school food
service and observe the limitations on
the use of nonprofit school food service
revenues set forth in § 210.14(a) and the
limitations on any competitive school
food service as set forth in § 210.11(b);
(2) Limit its net cash resources to an
amount that does not exceed 3 months
average expenditures for its nonprofit
school food service or such other
amount as may be approved in accordance with § 210.19(a);
(3) Maintain a financial management
system as prescribed under § 210.14(c);
(4) Comply with the requirements of
the Department’s regulations regarding financial management (7 CFR part
3015 and 7 CFR part 3016, or 7 CFR part
3019, as applicable);
(5) Serve lunches, during the lunch
period, which meet the minimum requirements prescribed in § 210.10;
(6) Price the lunch as a unit;
(7) Serve lunches free or at a reduced
price to all children who are determined by the local educational agency

to be eligible for such meals under 7
CFR part 245;
(8) Claim reimbursement at the assigned rates only for reimbursable free,
reduced price and paid lunches served
to eligible children in accordance with
7 CFR part 210. Agree that the school
food authority official signing the
claim shall be responsible for reviewing
and analyzing meal counts to ensure
accuracy as specified in § 210.8 governing claims for reimbursement. Acknowledge that failure to submit accurate claims will result in the recovery
of an overclaim and may result in the
withholding of payments, suspension or
termination of the program as specified in § 210.25. Acknowledge that if
failure to submit accurate claims reflects
embezzlement,
willful
misapplication of funds, theft, or fraudulent activity, the penalties specified
in § 210.26 shall apply;
(9) Count the number of free, reduced
price and paid reimbursable meals
served to eligible children at the point
of service, or through another counting
system if approved by the State agency;
(10) Submit Claims for Reimbursement in accordance with § 210.8;
(11) Comply with the requirements of
the Department’s regulations regarding nondiscrimination (7 CFR parts 15,
15a, 15b);
(12) Make no discrimination against
any child because of his or her eligibility for free or reduced price meals in
accordance with the approved Free and
Reduced Price Policy Statement;
(13) Enter into an agreement to receive donated foods as required by 7
CFR part 250;
(14) Maintain, in the storage, preparation and service of food, proper sanitation and health standards in conformance with all applicable State and
local laws and regulations, and comply
with the food safety inspection requirement of § 210.13(b);
(15) Accept and use, in as large quantities as may be efficiently utilized in
its nonprofit school food service, such
foods as may be offered as a donation
by the Department;
(16) Maintain necessary facilities for
storing, preparing and serving food;
(17) Upon request, make all accounts
and records pertaining to its school

20

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00030

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.9
having 50 percent or more of enrolled
children certified eligible for free or reduced price meals.
(c) Afterschool care requirements.
Those school food authorities with eligible
schools
(as
defined
in
§ 210.10(n)(1)) that elect to serve meal
supplements during afterschool care
programs, shall agree to:
(1) Serve meal supplements which
meet the minimum requirements prescribed in § 210.10;
(2) Price the meal supplement as a
unit;
(3) Serve meal supplements free or at
a reduced price to all children who are
determined by the school food authority to be eligible for free or reduced
price school meals under 7 CFR part
245;
(4) If charging for meals, the charge
for a reduced price meal supplement
shall not exceed 15 cents;
(5) Claim reimbursement at the assigned rates only for meal supplements
served in accordance with the agreement;
(6) Claim reimbursement for no more
than one meal supplement per child per
day;
(7) Review each afterschool care program two times a year; the first review
shall be made during the first four
weeks that the school is in operation
each school year, except that an afterschool care program operating year
round shall be reviewed during the first
four weeks of its initial year of operation, once more during its first year
of operation, and twice each school
year thereafter; and
(8) Comply with all requirements of
this part, except that, claims for reimbursement need not be based on ‘‘point
of service’’ meal supplement counts (as
required by § 210.9(b)(9)).

food service available to the State
agency and to FNS, for audit or review,
at a reasonable time and place. Such
records shall be retained for a period of
3 years after the date of the final Claim
for Reimbursement for the fiscal year
to which they pertain, except that if
audit findings have not been resolved,
the records shall be retained beyond
the 3 year period as long as required for
resolution of the issues raised by the
audit;
(18) Maintain files of currently approved and denied free and reduced
price applications, respectively, and
the names of children approved for free
lunches based on documentation certifying that the child is included in a
household approved to receive benefits
under the Food Stamp Program, Food
Distribution Program for Households
on Indian Reservations (FDPIR) or
Temporary Assistance for Needy Families (TANF). If the applications and/or
documentation are maintained at the
school food authority level, they shall
be readily retrievable by school;
(19) Retain the individual applications for free and reduced price lunches
and meal supplements submitted by
families for a period of 3 years after the
end of the fiscal year to which they
pertain or as otherwise specified under
paragraph (b)(17) of this section.
(20) No later than March 1, 1997, and
no later than December 31 of each year
thereafter, provide the State agency
with a list of all elementary schools
under its jurisdiction in which 50 percent or more of enrolled children have
been determined eligible for free or reduced price meals as of the last operating day the preceding October. The
State agency may designate a month
other than October for the collection of
this information, in which case the list
must be provided to the State agency
within 60 calendar days following the
end of the month designated by the
State agency. In addition, each school
food authority shall provide, when
available for the schools under its jurisdiction, and upon the request of a
sponsoring organization of day care
homes of the Child and Adult Care
Food Program, information on the
boundaries of the attendance areas for
the elementary schools identified as

[53 FR 29147, Aug. 2, 1988, as amended at 54
FR 12581, Mar. 28, 1989; 56 FR 32941, July 17,
1991; 58 FR 42488, Aug. 10, 1993; 60 FR 31208,
June 13, 1995; 62 FR 901, Jan. 7, 1997; 63 FR
9104, Feb. 24, 1998; 64 FR 50740, Sept. 20, 1999;
64 FR 72471, Dec. 28, 1999; 65 FR 26912, May 9,
2000; 70 FR 34630, June 15, 2005; 71 FR 39516,
July 13, 2006; 72 FR 63791, Nov. 13, 2007]

21

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00031

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.10

7 CFR Ch. II (1–1–09 Edition)
(3) Production and menu records.
Schools must keep production and
menu records for the meals they
produce. These records must show how
the meals contribute to the required
food components, food items or menu
items every day. In addition, for
lunches, these records must show how
the lunches contribute to the nutrition
standards in paragraph (b) of this section and the appropriate calorie and
nutrient levels for the ages/grades of
the children in the school (see paragraphs (c), (d), or (i)(1) or (l) of this section, depending on the menu planning
approach used) over the school week. If
applicable, schools or school food authorities must maintain nutritional
analysis records to demonstrate that
lunches meet, when averaged over each
school week:
(i) The nutrition standards provided
in paragraph (b) of this section; and
(ii) The nutrient and calorie levels
for children for each age or grade group
in accordance with paragraphs (c) or
(i)(1) of this section or developed under
paragraph (l) of this section.
(b) What are the specific nutrition
standards for lunches? Children age 2
and above must be offered lunches that
meet the following nutrition standards
for their age/grade group:
(1) Provision of one-third of the Recommended Dietary Allowances (RDAs)
for protein, calcium, iron, vitamin A
and vitamin C in the appropriate levels
for the ages/grades (see paragraphs (c),
(d), (i)(1) or (l) of this section, depending on the menu planning approach
used);
(2) Provision of the lunchtime energy
allowances (calories) in the appropriate
levels (see paragraphs (c), (d),(i)(1) or
(l) of this section, depending on the
menu planning approach used);
(3) These applicable recommendations from the 1995 Dietary Guidelines
for Americans:
(i) Eat a variety of foods;
(ii) Limit total fat to 30 percent of
total calories;
(iii) Limit saturated fat to less than
10 percent of total calories;
(iv) Choose a diet low in cholesterol;
(v) Choose a diet with plenty of grain
products, vegetables, and fruits; and
(vi) Choose a diet moderate in salt
and sodium.

§ 210.10 Nutrition standards and menu
planning approaches for lunches
and requirements for afterschool
snacks.
(a) What are the general requirements?—(1) General nutrition requirements. Schools must provide nutritious
and well-balanced meals to all the children they serve.
(i) Requirements for lunch. For children age 2 or older, schools must offer
lunches that meet, at a minimum, the
nutrition standards in paragraph (b) of
this section. Compliance with the nutrition standards and the appropriate
nutrient and calorie levels is determined by averaging lunches planned to
be offered over a school week. Under
any menu planning approach, schools
must plan and produce at least enough
food to meet the appropriate calorie
and nutrient levels for the ages/grades
of the children in the school (see paragraphs (c), (d), (i)(1) or (l) of this section, depending on the menu planning
approach used). Also, if schools use one
of the food-based menu planning approaches, they must plan and produce
at least enough food to offer each child
the minimum quantities under the
meal pattern (see paragraph (k) of this
section). Schools offering lunches to
infants must meet the meal pattern requirements in paragraph (o) of this section.
(ii) Requirements for afterschool snacks.
Schools offering afterschool snacks in
afterschool care programs must meet
the meal pattern requirements in paragraph (n) of this section. Schools must
plan and produce enough food to offer
each child the minimum quantities
under the meal pattern in paragraph
(n) of this section. The component requirements for meal supplements
served under the Child and Adult Care
Food Program authorized under part
226 of this chapter also apply to afterschool snacks served in accordance
with paragraph (n) of this section.
(2) Unit pricing. Schools must price
each meal as a unit. Schools need to
consider participation trends in an effort to provide one reimbursable lunch
and, if applicable, one reimbursable
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.

22

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00032

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.10

(4) These measures of compliance
with the applicable recommendations
of the 1995 Dietary Guidelines for
Americans:
(i) Limit the percent of calories from
total fat to 30 percent of the actual
number of calories offered;
(ii) Limit the percent of calories
from saturated fat to less than 10 percent of the actual number of calories
offered;
(iii) Reduce sodium and cholesterol
levels; and
(iv) Increase the level of dietary
fiber.
(5) School food authorities have several ways to plan menus. The minimum
levels of nutrients and calories that
lunches must offer depends on the
menu planning approach used and the

ages/grades served. The menu planning
approaches are:
(i) Nutrient standard menu planning
(see paragraphs (c) and (i) of this section);
(ii) Assisted nutrient standard menu
planning (see paragraphs (c) and (j) of
this section);
(iii) Traditional food-based menu
planning (see paragraphs (d)(1) and (k)
of this section);
(iv) Enhanced food-based menu planning (see paragraphs (d)(2) and (k) of
this section); or
(v) Alternate menu planning (see
paragraph (l) of this section).
(c) What are the levels for nutrients and
calories for lunches planned under the
nutrient standard or assisted nutrient
standard menu planning approaches?—(1)
Required levels. The required levels are:

23

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00033

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

ER09MY00.000

cprice-sewell on PRODPC61 with CFR

(2) Optional levels. Optional levels are:

§ 210.10

7 CFR Ch. II (1–1–09 Edition)

(3) Customized levels. Schools may
also develop a set of nutrient and calorie levels for a school week. These levels are customized for the age groups of
the children in the particular school or
school food authority.

(d) What are the nutrient and calorie
levels for lunches planned under the foodbased menu planning approaches?—(1)
Traditional approach. For the traditional food-based menu planning approach, the required levels are:

EN17MY00.000

24

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00034

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

ER09MY00.001

cprice-sewell on PRODPC61 with CFR

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

§ 210.10

(e) Must schools offer choices at lunch?
FNS encourages schools to offer children a selection of foods and menu
items at lunch. Choices provide variety
and encourage consumption. Schools
may offer choices of reimbursable
lunches or foods within a reimbursable
lunch. Children who are eligible for
free or reduced price lunches must be
allowed to take any reimbursable
lunch or any choices offered as part of
a reimbursable lunch. Schools may establish different unit prices for each
lunch offered provided that the benefits
made available to children eligible for
free or reduced price lunches are not
affected.
(f) What are the requirements for lunch
periods?—(1) Timing. Schools must offer
lunches meeting the requirements of
this section during the period the
school has designated as the lunch period. Schools must offer lunches between 10:00 a.m. and 2:00 p.m. Schools
may request an exemption from these
times only from FNS.
(2) Lunch periods for young children.
With State agency approval, schools
are encouraged to serve children ages
one through five over two service periods. Schools may divide the quantities
and/or the menu items, foods, or food
items offered each time any way they
wish.
(3) Adequate lunch periods. FNS encourages schools to provide sufficient
lunch periods that are long enough to

give all students enough time to be
served and to eat their lunches.
(g) Exceptions and variations allowed
in reimbursable meals—(1) Exceptions for
disability reasons. Schools must make
substitutions in lunches and afterschool snacks for students who are considered to have a disability under 7
CFR 15b.3 and whose disability restricts their diet. Substitutions must
be made on a case by case basis only
when supported by a written statement
of the need for substitutions that includes recommended alternate foods,
unless otherwise exempted by FNS.
Such statement must be signed by a licensed physician.
(2) Exceptions for non-disability reasons. Schools may make substitutions
for students without disabilities who
cannot consume the regular lunch or
afterschool snack because of medical
or other special dietary needs. Substitutions must be made on a case by case
basis only when supported by a written
statement of the need for substitutions
that includes recommended alternate
foods, unless otherwise exempted by
FNS. Except with respect to substitutions for fluid milk, such a statement must be signed by a recognized
medical authority.
(i) Milk substitutions for non-disability
reasons. Schools may make substitutions for fluid milk for non-disabled
students who cannot consume fluid
milk due to medical or special dietary

25

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00035

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

ER09MY00.003

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

cprice-sewell on PRODPC61 with CFR

§ 210.10

7 CFR Ch. II (1–1–09 Edition)

needs. A school that selects this option
may offer the nondairy beverage(s) of
its choice, provided the beverage(s)
meets the nutritional standards established under paragraph (m) of this section. Expenses incurred when providing
substitutions for fluid milk that exceed
program reimbursements must be paid
by the school food authority.
(ii) Requisites for milk substitutions. (A)
A school food authority must inform
the State agency if any of its schools
choose to offer fluid milk substitutes
other than for students with disabilities; and
(B) A medical authority or the student’s parent or legal guardian must
submit a written request for a fluid
milk substitute identifying the medical or other special dietary need that
restricts the student’s diet.
(iii) Substitution approval. The approval for fluid milk substitution must
remain in effect until the medical authority or the student’s parent or legal
guardian revokes such request in writing, or until such time as the school
changes its substitution policy for nondisabled students.
(3) Variations for ethnic, religious, or
economic reasons. Schools should consider ethnic and religious preferences
when planning and preparing meals.
Variations on an experimental or continuing basis in the food components
for the food-based menu planning approaches in paragraphs (k) or (n) of
this section may be allowed by FNS.
Any variations must be nutritionally
sound and needed to meet ethnic, religious, or economic needs.
(4) Exceptions for natural disasters. If
there is a natural disaster or other catastrophe, FNS may temporarily allow
schools to serve meals for reimbursement that do not meet the requirements in this section.
(h) What must schools do about nutrition disclosure? To the extent that
school food authorities identify foods
in a menu, or on the serving line or
through other available means of communicating with program participants,
school food authorities must identify
products or dishes containing more
than 30 parts fully hydrated alternate
protein products (as specified in appendix A of this part) to less than 70 parts
beef, pork, poultry or seafood on an

uncooked basis, in a manner which
does not characterize the product or
dish solely as beef, pork, poultry or
seafood. Additionally, FNS encourages
schools to inform the students, parents, and the public about efforts they
are making to meet the nutrition
standards (see paragraph (b) of this section) for school lunches.
(i) What are the requirements for
lunches under the nutrient standard
menu planning approach?—(1) Nutrient
levels—(i) Adjusting nutrient levels for
young children. Schools with children
who are age 2 must at least meet the
nutrition standards in paragraph (b) of
this section and the preschool nutrient
and calorie levels in paragraph (c)(1) of
this section over a school week.
Schools may also use the preschool nutrient and calorie levels in paragraph
(c)(2) of this section or may calculate
nutrient and calorie levels for two year
olds. FNS has a method for calculating
these levels in guidance materials for
menu planning.
(ii) Minimum levels for nutrients.
Lunches must at least offer the nutrient and calorie levels for the required
grade groups in the table in paragraph
(c)(1) of this section. Schools may also
offer lunches meeting the nutrient and
calorie levels for the age groups in
paragraph (c)(2) of this section. If only
one grade or age group is outside either
of these established levels, schools may
follow the levels for the majority of the
children. Schools may also customize
the nutrient and calorie levels for the
children they serve. FNS has a method
for calculating these levels in guidance
materials for menu planning.
(2) Reimbursable lunches—(i) Contents
of a reimbursable lunch. A reimbursable
lunch must include at least three menu
items. One of those menu items must
be an entree, and one must be fluid
milk as a beverage. An entree is a combination of foods or is a single food
item offered as the main course. All
menu items or foods offered in a reimbursable lunch contribute to the nutrition standards in paragraph (b) of this
section and to the levels of nutrients
and calories that must be met in paragraphs (c) or (i)(1) of this section. Unless offered as part of a menu item in a
reimbursable lunch, foods of minimal
nutritional value (see appendix B to

26

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00036

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.10

part 210) are not included in the nutrient analysis. Reimbursable lunches
planned under the nutrient standard
menu planning approach must meet
the nutrition standards in paragraph
(b) of this section and the appropriate
nutrient and calorie levels in either
paragraph (c) or paragraph (i)(1) of this
section.
(ii) Offer versus serve. Schools must
offer at least three menu items for
lunches. Senior high (as defined by the
State educational agency) school students must select at least two menu
items and are allowed to decline a
maximum of two menu items. The student must always take the entree. The
price of a reimbursable lunch does not
change if the student does not take a
menu item or requests smaller portions. At the discretion of the school
food authority, students below the senior high level may also participate in
offer versus serve.
(3) Doing the analysis. Schools using
nutrient standard menu planning must
conduct the analysis on all menu items
and foods offered in a reimbursable
lunch. The analysis is conducted over a
school week. Unless offered as part of a
menu item in a reimbursable lunch,
foods of minimal nutritional value (see
appendix B to part 210) are not included
in the nutrient analysis.
(4) Software elements—(i) The Child
Nutrition Database. The nutrient analysis is based on the Child Nutrition
Database. This database is part of the
software used to do a nutrient analysis.
Software companies or others developing systems for schools may contact
FNS for more information about the
database.
(ii) Software evaluation. FNS or an
FNS designee evaluates any nutrient
analysis software before it may be used
in schools. FNS or its designee determines if the software, as submitted,
meets the minimum requirements. The
approval of software does not mean
that FNS or USDA endorses it. The
software must be able to do all functions after the basic data is entered.
The required functions include weighted averages and the optional combined
analysis of the lunch and breakfast
programs.
(5) Nutrient analysis procedures—(i)
Weighted averages. Schools must in-

clude all menu items and foods offered
in reimbursable lunches in the nutrient
analysis. Menu items and foods are included based on the portion sizes and
projected serving amounts. They are
also weighted based on their proportionate contribution to the lunches offered. This means that menu items or
foods more frequently offered are
weighted more heavily than those not
offered as frequently. Schools calculate
weighting as indicated by FNS guidance and by the guidance provided by
the software. Through September 30,
2009, schools are not required to conduct a weighted analysis.
(ii) Analyzed nutrients. The analysis
includes all menu items and foods offered over a school week. The analysis
must determine the levels of: Calories,
protein, vitamin A, vitamin C, iron,
calcium, total fat, saturated fat, sodium, cholesterol and dietary fiber.
(iii) Combining the analysis of the
lunch and breakfast programs. At their
option, schools may combine the analysis of lunches offered under this part
and breakfasts offered under part 220 of
this Chapter. The analysis is done proportionately to the levels of participation in each program based on FNS
guidance.
(6) Comparing the results of the nutrient analysis. Once the procedures in
paragraph (i)(5) of this section are completed, schools must compare the results of the analysis to the appropriate
nutrient and calorie levels, by age/
grade groups, in paragraph (c) of this
section or those developed under paragraph (i)(1) of this section. This comparison determines the school week’s
average. Schools must also make comparisons to the nutrition standards in
paragraph (b) of this section to determine how well they are meeting the
nutrition standards over the school
week.
(7) Adjustments to the menus. Once
schools know the results of the nutrient analysis based on the procedures in
paragraphs (i)(5) and (i)(6) of this section, they must adjust future menu cycles to reflect production and how
often the menu items and foods are offered. Schools may need to reanalyze
menus when the students’ selections
change and, consequently, production
levels change. Schools may need to

27

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00037

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.10

7 CFR Ch. II (1–1–09 Edition)

change the menu items and foods offered given the students’ selections and
may need to modify the recipes and
other specifications to make sure that
the nutrition standards in paragraph
(b) and either paragraphs (c) or (i)(1) of
this section are met.
(8) Standardized recipes. If a school
follows the nutrient standard menu
planning approach, it must develop and
follow standardized recipes. A standardized recipe is a recipe that was tested to provide an established yield and
quantity using the same ingredients
for both measurement and preparation
methods. Any standardized recipes developed by USDA/FNS are in the Child
Nutrition Database. If a school has its
own recipes, they must be standardized
and analyzed to determine the levels of
calories, nutrients, and dietary components listed in paragraph (i)(5)(ii) of
this section. Schools must add any
local recipes to their local database as
outlined in FNS guidance.
(9) Processed foods. The Child Nutrition Database includes a number of
processed foods. Schools may use purchased processed foods and menu items
that are not in the Child Nutrition
Database. Schools or the State agency
must add any locally purchased processed foods and menu items to their
local database as outlined in FNS guidance. Schools or the State agency must
obtain the levels of calories, nutrients,
and dietary components listed in paragraph (i)(5)(ii) of this section.
(10) Menu substitutions. Schools may
need to substitute foods or menu items
in a menu that was already analyzed. If
the substitution(s) occurs more than
two weeks before the planned menu is
served, the school must reanalyze the
revised menu. If the substitution(s) occurs two weeks or less before the
planned menu is served, the school does
not need to do a reanalysis. However,
schools should always try to substitute
similar foods.
(11) Meeting the nutrition standards.
The school’s analysis shows whether
their menus are meeting the nutrition
standards in paragraph (b) of this section and the appropriate levels of nutrients and calories in paragraph (c) of
this section or customized levels developed under paragraph (i)(1) of this section. If the analysis shows that the

menu(s) are not meeting these standards, the school needs to take action to
make sure that the lunches meet the
nutrition standards and the calorie,
nutrient, and dietary component levels. Actions may include technical assistance and training and may be taken
by the State agency, the school food
authority or by the school as needed.
(12) Other Child Nutrition Programs
and nutrient standard menu planning.
School food authorities that operate
the Summer Food Service Program
(part 225 of this chapter) and/or the
Child and Adult Care Food Program
(part 226 of this chapter) may, with
State agency approval, prepare lunches
for these programs using the nutrient
standard menu planning approach for
children age two and over. FNS has
guidance on the levels of nutrients and
calories for adult lunches under the
Child and Adult Care Food Program.
However, afterschool snacks continue
to use the appropriate program’s meal
pattern.
(j) What are the requirements for
lunches under the assisted nutrient standard menu planning approach?—(1) Definition of assisted nutrient standard menu
planning. Some school food authorities
may not be able to do all of the procedures necessary for nutrient standard
menu planning. The assisted nutrient
standard menu planning approach provides schools with menu cycles developed and analyzed by other sources.
These sources include the State agency, other school food authorities, consultants, or food service management
companies.
(2) Elements of assisted nutrient standard menu planning. School food authorities using menu cycles developed under
assisted nutrient standard menu planning must follow the procedures in
paragraphs (i)(1) through (i)(10) of this
section. The menu cycles must also incorporate local food preferences and
accommodate local food service operations. The menus cycles must meet
the nutrition standards in paragraph
(b) of this section and meet the nutrient and calorie levels for nutrient
standard menu planning in paragraph
(c) or paragraph (i)(1) of this section.
The supplier of the assisted nutrient
standard menu planning approach must
also develop and provide recipes, food

28

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00038

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.10
this section, the State agency, school
food authority or school must take action to make sure the lunches offered
meet these requirements. Actions needed include technical assistance and
training.
(7) Other Child Nutrition Programs and
assisted nutrient standard menu planning. School food authorities that operate the Summer Food Service Program
(part 225 of this chapter) and/or the
Child and Adult Care Food Program
(part 226 of this chapter) may, with
State agency approval, prepare lunches
for these programs using the assisted
nutrient standard menu planning approach for children age two and over.
FNS has guidance on the levels of nutrients and calories for adult lunches
under the Child and Adult Care Food
Program. However, afterschool snacks
continue to use the appropriate program’s meal pattern.
(k) What are the requirements for
lunches under the food-based menu planning approaches? There are two menu
planning approaches based on meal
patterns, not nutrient analysis. These
approaches are the traditional foodbased menu planning approach and the
enhanced food-based menu planning approach. Schools using one of these approaches offer food components in at
least the minimum quantities required
for the various grade groups.
(1) Quantities for the traditional foodbased menu planning approach—(i) Minimum quantities. At a minimum, schools
must offer five food items in the quantities in the following table:

cprice-sewell on PRODPC61 with CFR

product specifications, and preparation
techniques. All of these components
support the nutrient analysis results of
the menus cycles used by the receiving
school food authorities.
(3) State agency approval. Prior to its
use, the State agency must approve the
initial menu cycle, recipes and other
specifications of the assisted nutrient
standard menu planning approach. The
State agency needs to ensure that all
the steps required for nutrient analysis
were followed. School food authorities
may also ask the State agency for assistance with implementation of their
assisted nutrient standard menu planning approach.
(4) Required adjustments. After the initial service of the menu cycle developed under the assisted nutrient standard menu planning approach, the nutrient analysis must be reassessed and appropriate adjustments made as discussed in paragraph (i)(7) of this section.
(5) Final responsibility for meeting the
nutrition standards. The school food authority using the assisted nutrient
standard menu planning approach retains responsibility for meeting the nutrition standards in paragraph (b) of
this section and the calorie and nutrient levels in paragraph (c) or paragraph
(i)(1) of this section.
(6) Adjustments to the menus. If the nutrient analysis shows that the lunches
offered are not meeting the nutrition
standards in paragraph (b) of this section and the calorie and nutrient levels
in paragraph (c) or paragraph (i)(1) of

29

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00039

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

§ 210.10

7 CFR Ch. II (1–1–09 Edition)

provide Group V children the larger
amounts specified in the table in paragraph (k)(1)(i) of this section. Schools
that provide increased portion sizes for
Group V may comply with children’s
requests for smaller portion sizes of the
food items; however, schools must plan
and produce sufficient quantities of
food to at least provide the serving
sizes required for Group IV. Schools
must ensure that lunches are served
with the objective of providing the per
lunch minimums for each age and
grade level as specified in the table in
paragraph (k)(1)(i) of this section.
(2) Quantities for the enhanced foodbased menu planning approach. Schools
must at least offer five food items in
the quantities in the following table:

30

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00040

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

ER09MY00.004

cprice-sewell on PRODPC61 with CFR

(ii) Use of Group IV quantities. Schools
that are able to provide quantities of
food to children solely on the basis of
their ages or grade level should do so.
Schools that cannot serve children on
the basis of age or grade level must
provide all school age children Group
IV portions as specified in the table in
paragraph (k)(1)(i) of this section.
Schools serving children on the basis of
age or grade level must plan and
produce sufficient quantities of food to
provide Groups I-IV no less than the
amounts specified for those children in
the table in paragraph (k)(1)(i) of this
section, and sufficient quantities of
food to provide Group V no less than
the specified amounts for Group IV.
FNS recommends that schools plan and
produce sufficient quantities of food to

§ 210.10

(3) Requirements for the meat/meat alternate component. The quantity of the
meat/meat alternate component must
be the edible portion as served. If the
portion size of a food item for this component is excessive, the school must reduce that portion and supplement it
with another meat/meat alternate to
meet the full requirement. This component must be served in a main dish or
in a main dish and only one other food
item. Schools without daily choices in
this component should not serve any
one meat alternate or form of meat (for
example, ground, diced, pieces) more
than three times in the same week.
(i) Enriched macaroni. Enriched macaroni with fortified protein as defined in
appendix A to this part may be used to
meet part of the meat/meat alternate
requirement when used as specified in
appendix A to this part. An enriched
macaroni product with fortified protein
as defined in appendix A to this part
may be used to meet part of the meat/
meat alternate component or the

grains/breads component but not as
both food components in the same
lunch.
(ii) Nuts and seeds. Nuts and seeds and
their butters are allowed as meat alternates in accordance with program guidance. Acorns, chestnuts, and coconuts
must not be used because of their low
protein and iron content. Nut and seed
meals or flours may be used only as allowed under appendix A to this part.
Nuts or seeds may be used to meet no
more than one-half of the meat/meat
alternate component with another
meat/meat alternate to meet the full
requirement.
(iii) Yogurt. Yogurt may be used to
meet all or part of the meat/meat alternate requirement. Yogurt may be either plain or flavored, unsweetened or
sweetened. Noncommercial and/or nonstandardized yogurt products, such as
frozen yogurt, homemade yogurt, yogurt flavored products, yogurt bars, yogurt covered fruit and/or nuts or similar products are not creditable. Four

31

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00041

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

ER09MY00.005

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

cprice-sewell on PRODPC61 with CFR

§ 210.10

7 CFR Ch. II (1–1–09 Edition)

ounces (weight) or 1⁄2 cup (volume) of
yogurt equals one ounce of the meat/
meat alternate requirement.
(4) Requirements for the vegetable/fruit
component.
(i) General. Full strength vegetable or
fruit juice may be used to meet no
more than one-half of the vegetable/
fruit requirement. Cooked dry beans or
peas may be counted as either a vegetable or as a meat alternate but not as
both in the same meal.
(ii) Minimum quantities for the enhanced food-based menu planning. Under
the enhanced food-based menu planning approach, children in kindergarten through grade six are offered
vegetables/fruits in minimum daily
servings plus an additional one-half
cup in any combination over a five day
period.
(5) Requirements for the grains/breads
component—(i) Enriched or whole grains.
All grains/breads must be enriched or
whole grain or made with enriched or
whole grain meal or flour.
(ii) Daily and weekly servings. The requirement for the grain/bread component is based on minimum daily
servings plus total servings over a five
day period. Schools serving lunch 6 or
7 days per week should increase the
weekly quantity by approximately 20
percent (1⁄5th) for each additional day.
When schools operate less than 5 days
per week, they may decrease the weekly quantity by approximately 20 percent (1⁄5th) for each day less than five.
The servings for biscuits, rolls, muffins, and other grain/bread varieties are
specified in the Food Buying Guide for
Child Nutrition Programs (PA 1331), an
FNS publication.
(iii) Minimums under the traditional
food-based menu planning approach.
Schools must offer at least one-half
serving of the grain/bread component
to children in Group I and at least one
serving to children in Groups II-V
daily. Schools which serve lunch at
least 5 days a week shall serve a total
of at least five servings of grains/breads
to children in Group I and eight
servings per week to children in Groups
II-V.
(iv) Desserts under the enhanced foodbased menu planning approach. Under
the enhanced food-based menu planning approach, schools may count up

to one grain-based dessert per day for
children in grades K-12 towards meeting the grains/breads component.
(6) Offer versus serve. Schools must
offer all five required food items. Senior high (as defined by the State educational agency) school students may
decline up to two of the five food items.
At the school food authority’s option,
students below senior high may decline
one or two of the five food items. The
price of a reimbursable lunch does not
change if the student does not take a
menu item or requests smaller portions.
(7) Meal pattern exceptions for outlying
areas. Schools in American Samoa,
Puerto Rico and the Virgin Islands
may serve a starchy vegetable such as
yams, plantains, or sweet potatoes to
meet the grain/bread requirement.
(l) What are the requirements for
lunches planned using an alternate menu
planning approach?—(1) Definition. Alternate menu planning approaches are
those adopted or developed by school
food authorities or State agencies that
differ from the standard approaches established in paragraphs (i) through (k)
of this section. There are two types of
alternate approaches. First, there are
specific modifications provided in paragraph (l)(2) of this section. Second,
there are major changes to the standard menu planning approaches or new
menu planning approaches developed
by school food authorities or State
agencies (see paragraph (l)(3) of this
section).
(2) Use of modifications. There are
three
modifications
available
to
schools using one of the food-based
menu planning approaches for lunches.
State agencies may or may not require
prior approval or may establish guidelines for using these modifications.
(i) Modification to the meat/meat alternate component. The required minimum
quantities of the meat/meat alternate
component in the food-based menu
planning approaches may be offered as
a weekly total with a one ounce (or its
equivalent for certain meat alternates)
minimum daily serving size. This
modification does not apply if the minimum serving of meat/meat alternate
is less than one ounce.
(ii) Modification to age/grade groups
under the traditional food-based menu

32

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00042

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.10

planning approach. Schools using the
traditional food-based menu planning
approach may:
(A) For children in grades K–6, use
the portion sizes in Group IV in the
table in paragraph (k)(1) of this section
and follow the nutrient levels for children in grades K–6 in paragraphs (c)(1)
and (d)(2) of this section; and/or
(B) For children in grades 7–12, use
the portion sizes in Group IV in the
table in paragraph (k)(1) of this section
and follow the nutrient levels for children in grades 7–12 in paragraphs (c)(1)
and (d)(2) of this section.
(iii) Modification for the majority of
children. Under the traditional or enhanced food-based menu planning approaches, if only one age or grade is
outside the established levels, schools
may follow the levels for the majority
of children for both quantities (see
paragraph (k)) and the nutrition standards in paragraphs (b) and (d) of this
section.
(3) Use and approval of major changes
or new alternate approaches. Within the
guidelines established for developing
alternate menu planning approaches,
school food authorities or State agencies may modify one of the established
menu planning approaches in paragraphs (i) through (k) of this section or
may develop their own menu planning
approach. The alternate menu planning
approach must be available in writing
for review and monitoring purposes. No
formal plan is required; guidance material, a handbook or protocol is sufficient. As appropriate, the material
must address how the guidelines in
paragraph (l)(4) of this section are met.
A State agency that develops an alternate approach that is exempt from
FNS
approval
under
paragraph
(l)(3)(iii) of this section must notify
FNS in writing when implementing the
alternate approach.
(i) Approval of local level approaches.
Any school food authority-developed
menu planning approach must have
prior State agency review and approval.
(ii) Approval of State agency approaches. Unless exempt under paragraph (l)(3)(iii) of this section, any
State agency-developed menu planning
approach must have prior FNS approval.

(iii) State agency approaches not subject to approval. A State agency-developed menu planning approach does not
need FNS approval if:
(A) Five or more school food authorities in the State use it; and
(B) The State agency maintains ongoing oversight of the operation and
evaluation of the approach and makes
any needed adjustments to its policies
and procedures to ensure that the appropriate guidelines of paragraph (l)(4)
of this section are met.
(4) Elements for major changes or new
approaches. Any alternate menu planning approach must:
(i) Offer fluid milk, as provided in
paragraph (m) of this section;
(ii) Include offer versus serve for senior high students. Alternate menu
planning approaches should follow the
offer versus serve procedures in paragraphs (i)(2)(ii) and (k)(6) of this section, as appropriate. If these requirements are not followed, the plan must
indicate:
(A) The affected age/grade groups;
(B) The number and type of items
(and, if applicable, the quantities for
the items) that constitute a reimbursable lunch under offer versus serve;
(C) How such procedures will reduce
plate waste; and
(D) How a reasonable level of calories
and nutrients for the lunch as taken is
provided;
(iii) Meet the Recommended Dietary
Allowances and lunchtime energy allowances (nutrient levels) and indicate
the age/grade groups served and how
the nutrient levels are met for those
age/grade groups;
(iv) Follow the requirements for competitive foods in § 210.11 and appendix B
to this part;
(v) Follow the requirements for
counting food items and products towards the meal patterns. These requirements are found in paragraphs
(k)(3) through (k)(5) and paragraph (m)
of this section, in appendices A
through C to this part, and in instructions and guidance issued by FNS. This
only applies if the alternate approach
is a food-based menu planning approach;
(vi) Identify a reimbursable lunch at
the point of service;

33

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00043

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.10

7 CFR Ch. II (1–1–09 Edition)

(A) To the extent possible, the procedures provided in paragraph (i)(2)(i) of
this section for the nutrient standard
or assisted nutrient standard menu
planning approaches or for food-based
menu planning approaches provided in
paragraph (k) of this section must be
followed. Any instructions or guidance
issued by FNS that further defines the
elements of a reimbursable lunch must
be followed when using the existing
regulatory provisions.
(B) Any alternate approach that deviates from the provisions in paragraph
(i)(2)(i) or paragraph (k) of this section
must indicate what constitutes a reimbursable lunch, including the number
and type of items (and, if applicable,
the quantities for the items) which
comprise the lunch, and how a reimbursable lunch is to be identified at the
point of service;
(vii) Explain how the alternate menu
planning approach can be monitored
under the applicable provisions of
§ 210.18 and § 210.19, including a description of the records that will be maintained to document compliance with
the program’s administrative and nutrition requirements. However, if the
procedures under § 210.19 cannot be used
to monitor the alternate approach, a
description of procedures which will
enable the State agency to assess compliance with the nutrition standards in
paragraphs (b)(1) through (b)(4) of this
section must be included; and
(viii) Follow the requirements for
weighted analysis and for approved
software for nutrient standard menu
planning approaches as required by
paragraphs (i)(4) and (i)(5) of this section unless a State agency-developed
approach meets the criteria in paragraph (l)(3)(iii) of this section. Through
September 30, 2009, schools are not required to conduct a weighted analysis.
(m) What are the requirements for offering milk?—(1) Types of milk. (i) Under all
menu planning approaches for students, schools must offer students fluid
milk in a variety of fat contents.
Schools
may
offer
flavored
or
unflavored milk and lactose-free fluid
milk.
(ii) All milk served in the Program
must be pasteurized fluid milk which
meets State and local standards for
such milk. However, infants under 1

year of age must be served breast milk
or iron-fortified infant formula. All
milk must have vitamins A and D at
levels specified by the Food and Drug
Administration and must be consistent
with State and local standards for such
milk.
(2) Inadequate milk supply. If a school
cannot get a supply of milk, it can still
participate in the Program under the
following conditions:
(i) If emergency conditions temporarily prevent a school that normally
has a supply of fluid milk from obtaining delivery of such milk, the State
agency may allow the school to serve
meals during the emergency period
with an alternate form of milk or without milk.
(ii) If a school is unable to obtain a
supply of any type of fluid milk on a
continuing basis, the State agency may
approve the service of meals without
fluid milk if the school uses an equivalent amount of canned milk or dry
milk in the preparation of the meals.
In Alaska, Hawaii, American Samoa,
Guam, Puerto Rico, and the Virgin Islands, if a sufficient supply of fluid
milk cannot be obtained, ‘‘milk’’ includes reconstituted or recombined
milk, or as otherwise allowed by FNS
through a written exception.
(3) Milk substitutes. If a school chooses
to offer one or more substitutes for
fluid milk for non-disabled students
with medical or special dietary needs,
the nondairy beverage(s) must provide
the nutrients listed in the following
table. Milk substitutes must be fortified in accordance with fortification
guidelines issued by the Food and Drug
Administration. A school need only
offer the nondairy beverage(s) that it
has identified as allowable fluid milk
substitutes according to this paragraph
(m)(3).
Nutrient

Per cup

Calcium .....................................................
Protein .......................................................
Vitamin A ..................................................
Vitamin D ..................................................
Magnesium ...............................................
Phosphorus ...............................................
Potassium .................................................
Riboflavin ..................................................
Vitamin B-12 .............................................

276 mg.
8 g.
500 IU.
100 IU.
24 mg.
222 mg.
349 mg.
0.44 mg.
1.1 mcg.

(4) Restrictions on the sale of milk. A
school participating in the Program, or

34

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00044

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.10

a person approved by a school participating in the Program, must not directly or indirectly restrict the sale or
marketing of fluid milk (as described
in paragraph(m)(1)(ii) of this section)
at any time or in any place on school
premises or at any school-sponsored
event.
(n) Supplemental food. Eligible schools
operating afterschool care programs
may be reimbursed for one meal supplement served to an eligible child (as
defined in § 210.2) per day.
(1) Eligible schools mean schools
that:
(i) Operate school lunch programs
under the National School Lunch Act;
(ii) Sponsor afterschool care programs as defined in § 210.2; and
(iii) Were participating in the Child
and Adult Care Food Program as of
May 15, 1989.
(2) Meal supplements shall contain
two different components from the following four:
(i) A serving of fluid milk as a beverage, or on cereal, or used in part for
each purpose;
(ii) A serving of meat or meat alternate. Nuts and seeds and their butters
listed in program guidance are nutritionally comparable to meat or other
meat alternates based on available nutritional data. Acorns, chestnuts, and
coconuts are excluded and shall not be
used as meat alternates due to their
low protein content. Nut or seed meals
or flours shall not be used as a meat alternate except as defined under appendix A: Alternate Foods for Meals of
this part;
(iii) A serving of vegetable(s) or
fruit(s) or full-strength vegetable or
fruit juice, or an equivalent quantity of
any combination of these foods. Juice
may not be served when milk is served
as the only other component;
(iv) A serving of whole-grain or enriched bread; or an equivalent serving
of cornbread, biscuits, rolls, muffins,
etc., made with whole-grain or enriched meal or flour; or a serving of
cooked whole-grain or enriched pasta
or noodle products such as macaroni,
or cereal grains such as rice, bulgur, or
corn grits; or an equivalent quantity of
any combination of these foods.
(3) Snacks served to infants ages
birth through 11 months must meet the

requirements described in paragraph
(n)(3)(iv) of this section. Foods included in the snack must be of a texture and a consistency that are appropriate for the age of the infant being
served. The foods must be served during a span of time consistent with the
infant’s eating habits. For those infants whose dietary needs are more individualized, exceptions to the meal
pattern must be made in accordance
with the requirements found in paragraph (g)(1) of this section.
(i) Breastmilk and iron-fortified formula. Either breastmilk or iron-fortified infant formula, or portions of
both, must be served for the entire first
year. Snacks containing breastmilk
and snacks containing iron-fortified infant formula supplied by the school are
eligible for reimbursement. However,
infant formula provided by a parent (or
guardian) and breastmilk fed directly
by the infant’s mother, during a visit
to the school, contribute to a reimbursable snack only when the school supplies at least one component of the infant’s snack.
(ii) Fruit juice. Juice should not be offered to infants until they are 6 months
of age and ready to drink from a cup.
Feeding fruit juice only from a cup will
help develop behaviors that may prevent early childhood caries. Fruit juice
served as part of the meal pattern for
infants 8 through 11 months must be
full-strength.
(iii) Solid foods. Solid foods of an appropriate texture and consistency are
required only when the infant is developmentally ready to accept them. The
school should consult with the infant’s
parent (or guardian) in making the decision to introduce solid foods. Solid
foods should be introduced one at a
time, on a gradual basis, with the intent of ensuring the infant’s health and
nutritional well-being.
(iv) Infant meal pattern. Infant snacks
must have, at a minimum, breastmilk
or iron-fortified infant formula, or portions of both, in the appropriate
amount indicated for the infant’s age.
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.
In
these
situations,
additional

35

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00045

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

§ 210.10

7 CFR Ch. II (1–1–09 Edition)
(4) The minimum amounts of food
components to be served as meal supplements as set forth in paragraphs
(n)(2) and (n)(3) of this section are as
follows. Select two different components from the four listed. (Juice may
not be served when milk is served as
the only other component.)

breastmilk must be offered if the infant is still hungry. Some infants may
be developmentally ready to accept an
additional food component. Snacks are
reimbursable when schools provide all
of the components in the meal pattern
that the infant is developmentally
ready to accept.
(A) Birth through 3 months. 4 to 6 fluid
ounces of breastmilk or iron-fortified
infant formula—only breastmilk or
iron-fortified formula is required to
meet the infant’s nutritional needs.
(B) 4 through 7 months. 4 to 6 fluid
ounces of breastmilk or iron-fortified
infant formula—only breastmilk or
iron-fortified formula is required to
meet the infant’s nutritional needs.
(C) 8 through 11 months. 2 to 4 fluid
ounces of breastmilk, iron-fortified infant formula, or full strength fruit
juice; and 0 to 1⁄2 slice of crusty bread
(if developmentally ready) or 0 to 2
cracker type products (if developmentally ready), which are made from
whole-grain or enriched meal or flour,
and suitable as a finger food for an infant.

SNACK PATTERN FOR INFANTS
Birth through 3
months

4 through 7
months

8 through 11
months

4–6 fluid ounces of
formula 1 or
breastmilk 2,3.

4–6 fluid ounces of
formula 1 or
breastmilk 2,3.

2–4 fluid ounces of
formula 1,
breastmilk 2,3, or
fruit juice 4; and
0–1⁄2 slice of
bread 5 or 0–2
crackers 5.

1 Infant formula must be iron-fortified.
2 Breastmilk or iron-fortified 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 Fruit juice must be full-strength.
5 A serving of this component must be made from wholegrain or enriched meal or flour. It is required only when the infant is developmentally ready to accept it.

SUPPLEMENTS FOR INFANTS
Birth through 3 months
Supplement (snack)

4–6 fl. oz. breast milk 2,3 or
formula 1

4 through 7 months
4–6 fl. oz. breast milk 2,3 or
formula 1

8 through 11 months
2–4 fl. oz breast milk 2,3, formula 1, or
fruit juice 4;
0–1⁄2 bread 5 or
0–2 crackers 5.

1 Infant

formula shall be iron-fortified.
is recommended that breast milk be served in place of formula from birth through 11 months.
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.
2 It

cprice-sewell on PRODPC61 with CFR

3 For

(o) What are the requirements for the
infant lunch pattern?—(1) Definitions. (i)
Infant cereal means any iron-fortified
dry cereal especially formulated and
generally recognized as cereal for infants which is routinely mixed with
breast milk or iron-fortified infant formula prior to consumption.
(ii) Infant formula means any ironfortified formula intended for dietary
use solely as a food for normal, healthy
infants. Formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive
problems are not included in this definition. Infant formula, when served,

must be in liquid state at recommended dilution.
(2) Feeding lunches to infants. Lunches
served to infants ages birth through 11
months must meet the requirements
described in paragraph (o)(5) of this
section. Foods included in the lunch
must be of a texture and a consistency
that are appropriate for the age of the
infant being served. The foods must be
served during a span of time consistent
with the infant’s eating habits. For
those infants whose dietary needs are
more individualized, exceptions to the
meal pattern must be made in accordance with the requirements found in
paragraph (g)(1) of this section.

36

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00046

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.10

(3) Breastmilk and iron-fortified formula. Either breastmilk or iron-fortified infant formula, or portions of
both, must be served for the entire first
year. Meals containing breastmilk and
meals containing iron-fortified infant
formula supplied by the school are eligible for reimbursement. However, infant formula provided by a parent (or
guardian) and breastmilk fed directly
by the infant’s mother, during a visit
to the school, contribute to a reimbursable lunch only when the school supplies at least one component of the infant’s meal.
(4) Solid foods. For infants ages 4
through 7 months, solid foods of an appropriate texture and consistency are
required only when the infant is developmentally ready to accept them. The
school should consult with the infant’s
parent (or guardian) in making the decision to introduce solid foods. Solid
foods should be introduced one at a
time, on a gradual basis, with the intent of ensuring the infant’s health and
nutritional well-being.
(5) Infant meal pattern. Infant lunches
must have, at a minimum, each of the
food components indicated, in the
amount that is appropriate for the infant’s age. 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. In these situations, additional
breastmilk must be offered if the infant is still hungry. Lunches may include portions of breastmilk and ironfortified infant formula as long as the
total number of ounces meets, or exceeds, the minimum amount required
of this food component. Similarly, to

meet the component requirements for
vegetables and fruit, portions of both
may be served.
(i) Birth through 3 months. 4 to 6 fluid
ounces of breastmilk or iron-fortified
infant formula—only breastmilk or
iron-fortified formula is required to
meet the infant’s nutritional needs.
(ii) 4 through 7 months. Breastmilk or
iron-fortified formula is required.
Some infants may be developmentally
ready for solid foods of an appropriate
texture and consistency. Lunches are
reimbursable when schools provide all
of the components in the meal pattern
that the infant is developmentally
ready to accept.
(A) 4 to 8 fluid ounces of breastmilk
or iron-fortified infant formula; and
(B) 0 to 3 tablespoons of iron-fortified
dry infant cereal; and
(C) 0 to 3 tablespoons of fruit or vegetable.
(iii) 8 through 11 months. Breastmilk
or iron-fortified formula and solid
foods of an appropriate texture and
consistency are required.
(A) 6 to 8 fluid ounces of breastmilk
or iron-fortified infant formula; and
(B) 2 to 4 tablespoons of iron-fortified
dry infant cereal; and/or 1 to 4 tablespoons of meat, fish, poultry, egg yolk,
or cooked dry beans or peas; or 1⁄2 to 2
ounces (weight) of cheese; or 1 to 4
ounces (volume) of cottage cheese; or 1
to 4 ounces (weight) of cheese food or
cheese spread; and
(C) 1 to 4 tablespoons of fruit or vegetable.
(6) Infant meal pattern table. The minimum amounts of food components to
serve to infants, as described in paragraph (o)(5) of this section, are:

LUNCH PATTERN FOR INFANTS
Birth through 3 months

cprice-sewell on PRODPC61 with CFR

4–6 fluid ounces
breastmilk 2,3.

1 Infant

of

formula 1

4 through 7 months
or

8 through 11 months

formula 1

4–8 fluid ounces of
or
breastmilk 2,3; and
0–3 tablespoons of infant cereal 1,4; and
0–3 tablespoons of fruit or vegetable or
both 4.

6–8 fluid ounces of formula 1 or
breastmilk 2,3; and
2–4 tablespoons of infant cereal 1; and/or
1–4 tablespoons of meat, fish, poultry,
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.

formula and dry infant cereal must be iron-fortified.

37

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00047

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

§ 210.11

7 CFR Ch. II (1–1–09 Edition)

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.
14, 1995, as amended at; 62 FR 10189, Mar. 6,
1997; 64 FR 61773, Nov. 15, 1999; 65 FR 26913,
May 9, 2000; 65 FR 31371, May 17, 2000; 65 FR
36317, June 8, 2000; 67 FR 36783, May 28, 2002;
69 FR 70872, Dec. 8, 2004; 70 FR 70033, Nov. 21,
2005; 73 FR 52907, Sept. 12, 2008]

cprice-sewell on PRODPC61 with CFR

§ 210.11

and school food authorities may impose additional restrictions on the sale
of and income from all foods sold at
any time throughout schools participating in the Program.
[53 FR 29147, Aug. 2, 1988, as amended at 59
FR 23614, May 6, 1994]

Competitive food services.

§ 210.12 Student, parent and community involvement.

(a) Definitions. For the purpose of this
section:
(1) Competitive foods means any foods
sold in competition with the Program
to children in food service areas during
the lunch periods.
(2) Food of minimal nutritional value
means: (i) In the case of artificially
sweetened foods, a food which provides
less than five percent of the Reference
Daily Intakes (RDI) for each of eight
specified nutrients per serving; and (ii)
in the case of all other foods, a food
which provides less than five percent of
the RDI for each of eight specified nutrients per 100 calories and less than
five percent of the RDI for each of
eight specified nutrients per serving.
The eight nutrients to be assessed for
this purpose are—protein, vitamin A,
vitamin C, niacin, riboflavin, thiamine,
calcium, and iron. All categories of
food of minimal nutritional value and
petitioning requirements for changing
the categories are listed in appendix B
of this part.
(b) General. State agencies and school
food authorities shall establish such
rules or regulations as are necessary to
control the sale of foods in competition
with lunches served under the Program. Such rules or regulations shall
prohibit the sale of foods of minimal
nutritional value, as listed in appendix
B of this part, in the food service areas
during the lunch periods. The sale of
other competitive foods may, at the
discretion of the State agency and
school food authority, be allowed in
the food service area during the lunch
period only if all income from the sale
of such foods accrues to the benefit of
the nonprofit school food service or the
school or student organizations approved by the school. State agencies

(a) General. School food authorities
shall promote activities to involve students and parents in the Program.
Such activities may include menu
planning, enhancement of the eating
environment, Program promotion, and
related student-community support activities. School food authorities are encouraged to use the school food service
program to teach students about good
nutrition practices and to involve the
school faculty and the general community in activities to enhance the Program.
(b) Food service management companies. School food authorities contracting with a food service management company shall comply with the
provisions of § 210.16(a) regarding the
establishment of an advisory board of
parents, teachers and students.
(c) Residential child care institutions.
Residential child care institutions
shall comply with the provisions of
this section, to the extent possible.
§ 210.13

Facilities management.

(a) Health standards. The school food
authority shall ensure that food storage, preparation and service is in accordance with the sanitation and
health standards established under
State and local law and regulations.
(b) Food safety inspections. Schools
shall obtain a minimum of two food
safety inspections during each school
year conducted by a State or local governmental agency responsible for food
safety inspections. They shall post in a
publicly visible location a report of the
most recent inspection conducted, and
provide a copy of the inspection report

38

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00048

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.15

to a member of the public upon request. Sites participating in more than
one child nutrition program shall only
be required to obtain two food safety
inspections per school year if the nutrition programs offered use the same facilities for the production and service
of meals.
(c) Storage. The school food authority
shall ensure that the necessary facilities for storage, preparation and service of food are maintained. Facilities
for the handling, storage, and distribution of purchased and donated foods
shall be such as to properly safeguard
against theft, spoilage and other loss.

the school food authority as provided
in paragraph (a) of this section.
(d) Use of donated foods. The school
food authority shall enter into an
agreement with the distributing agency to receive donated foods as required
by part 250 of this chapter. In addition,
the school food authority shall accept
and use, in as large quantities as may
be efficiently utilized in its nonprofit
school food service, such foods as may
be offered as a donation by the Department.
[53 FR 29147, Aug. 2, 1988, as amended at 60
FR 31215, June 13, 1995]

§ 210.15 Reporting and recordkeeping.
(a) Reporting summary. Participating
school food authorities are required to
submit forms and reports to the State
agency or the distributing agency, as
appropriate, to demonstrate compliance with Program requirements.
These reports include, but are not limited to:
(1) A Claim for Reimbursement and,
for the month of October and as otherwise specified by the State agency, supporting data as specified in accordance
with § 210.8 of this part;
(2) An application and agreement for
Program operations between the school
food authority and the State agency,
and a Free and Reduced Price Policy
Statement as required under § 210.9;
(3) A written response to reviews pertaining to corrective action taken for
Program deficiencies;
(4) A commodity school’s preference
whether to receive part of its donated
food allocation in cash for processing
and handling of donated foods as required under § 210.19(b);
(5) A written response to audit findings pertaining to the school food
authority’s operation as required under
§ 210.22;
(6) Information on civil rights complaints, if any, and their resolution as
required under § 210.23; and
(7) The number of food safety inspections obtained per school year by each
school under its jurisdiction.
(b) Recordkeeping summary. In order
to participate in the Program, a school
food authority shall maintain records
to demonstrate compliance with Program requirements. These records include but are not limited to:

[54 FR 29147, Aug. 2, 1988, as amended at 64
FR 50740, Sept. 20, 1999; 70 FR 34630, June 15,
2005]

cprice-sewell on PRODPC61 with CFR

§ 210.14

Resource management.

(a) Nonprofit school food service.
School food authorities shall maintain
a nonprofit school food service. Revenues received by the nonprofit school
food service are to be used only for the
operation or improvement of such food
service, except that, such revenues shall
not be used to purchase land or buildings, unless otherwise approved by
FNS, or to construct buildings. Expenditures of nonprofit school food
service revenues shall be in accordance
with the financial management system
established by the State agency under
§ 210.19(a) of this part. School food authorities may use facilities, equipment,
and personnel supported with nonprofit
school food revenues to support a nonprofit nutrition program for the elderly, including a program funded under
the Older Americans Act of 1965 (42
U.S.C. 3001 et seq.).
(b) Net cash resources. The school food
authority shall limit its net cash resources to an amount that does not exceed 3 months average expenditures for
its nonprofit school food service or
such other amount as may be approved
by the State agency in accordance with
§ 210.19(a).
(c) Financial assurances. The school
food authority shall meet the requirements of the State agency for compliance with § 210.19(a) including any separation of records of nonprofit school
food service from records of any other
food service which may be operated by

39

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00049

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

§ 210.16

7 CFR Ch. II (1–1–09 Edition)

(1) Documentation of participation
data by school in support of the Claim
for Reimbursement and data used in
the claims review process, as required
under § 210.8(a), (b), and (c) of this part;
(2) Production and menu records and,
if appropriate, nutrition analysis
records as required under § 210.10,
whichever is applicable.
(3) Participation records to demonstrate positive action toward providing one lunch per child per day as
required under § 210.10(a)(2), whichever
is applicable;
(4) Currently approved and denied applications for free and reduced price
lunches and a description of the
verification
activities,
including
verified applications, and any accompanying source documentation in accordance with 7 CFR 245.6a of this
Title; and
(5) Food safety inspection records to
demonstrate
compliance
with
§ 210.13(b).

(4) Retain control of the quality, extent, and general nature of its food
service, and the prices to be charged
the children for meals;
(5) Retain signature authority on the
State agency-school food authority
agreement, free and reduced price policy statement and claims;
(6) Ensure that all federally donated
foods received by the school food authority and made available to the food
service management company accrue
only to the benefit of the school food
authority’s nonprofit school food service and are fully utilized therein;
(7) Maintain applicable health certification and assure that all State and
local regulations are being met by a
food service management company preparing or serving meals at a school
food authority facility;
(8) Establish an advisory board composed of parents, teachers, and students to assist in menu planning;
(9) Obtain written approval of invitations for bids and requests for proposals before their issuance when required by the State agency. The school
food authority must incorporate all
State agency required changes to its
solicitation documents before issuing
those documents; and
(10) Ensure that the State agency has
reviewed and approved the contract
terms and that the school food authority has incorporated all State agency
required changes into the contract or
amendment before any contract or
amendment to an existing food service
management company contract is executed. Any changes made by the school
food authority or a food service management company to a State agency
pre-approved prototype contract or
State agency approved contract term
must be approved in writing by the
State agency before the contract is executed. When requested, the school
food authority must submit all procurement documents, including responses submitted by potential contractors, to the State agency, by the
due date established by the State agency.
(b) Invitation to bid. In addition to adhering to the procurement standards
under § 210.21, school food authorities
contracting with food service management companies shall ensure that:

cprice-sewell on PRODPC61 with CFR

[53 FR 29147, Aug. 2, 1988, as amended at 54
FR 12582, Mar. 28, 1989; 56 FR 32941, July 17,
1991; 60 FR 31215, June 13, 1995; 65 FR 26912,
26922, May 9, 2000; 70 FR 34630, June 15, 2005]

§ 210.16 Food
service
management
companies.
(a) General. Any school food authority (including a State agency acting in
the capacity of a school food authority)
may contract with a food service management company to manage its food
service operation in one or more of its
schools. However, no school or school
food authority may contract with a
food service management company to
operate an a la carte food service unless the company agrees to offer free,
reduced price and paid reimbursable
lunches to all eligible children. Any
school food authority that employs a
food service management company in
the operation of its nonprofit school
food service shall:
(1) Adhere to the procurement standards specified in § 210.21 when contracting with the food service management company;
(2) Ensure that the food service operation is in conformance with the school
food authority’s agreement under the
Program;
(3) Monitor the food service operation
through periodic on-site visits;

40

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00050

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.17

(1) The invitation to bid or request
for proposal contains a 21-day cycle
menu developed in accordance with the
provisions of § 210.10, to be used as a
standard for the purpose of basing bids
or estimating average cost per meal. A
school food authority with no capability to prepare a cycle menu may,
with State agency approval, require
that each food service management
company include a 21-day cycle menu,
developed in accordance with the provisions of § 210.10, with its bid or proposal. The food service management
company must adhere to the cycle for
the first 21 days of meal service.
Changes thereafter may be made with
the approval of the school food authority.
(2) Any invitation to bid or request
for proposal indicate that nonperformance subjects the food service management company to specified sanctions in
instances where the food service management company violates or breaches
contract terms. The school food authority shall indicate these sanctions
in accordance with the procurement
provisions stated in § 210.21.
(c) Contracts. Contracts that permit
all income and expenses to accrue to
the food service management company
and
‘‘cost-plus-a-percentage-of-cost’’
and
‘‘cost-plus-a-percentage-of-income’’ contracts are prohibited. Contracts that provide for fixed fees such
as those that provide for management
fees established on a per meal basis are
allowed. Contractual agreements with
food service management companies
shall include provisions which ensure
that the requirements of this section
are met. Such agreements shall also include the following:
(1) The food service management
company shall maintain such records
as the school food authority will need
to support its Claim for Reimbursement under this part, and shall, at a
minimum, report claim information to
the school food authority promptly at
the end of each month. Such records
shall be made available to the school
food authority, upon request, and shall
be
retained
in
accordance
with
§ 210.23(c).
(2) The food service management
company shall have State or local
health certification for any facility

outside the school in which it proposes
to prepare meals and the food service
management company shall maintain
this health certification for the duration of the contract.
(3) No payment is to be made for
meals that are spoiled or unwholesome
at time of delivery, do not meet detailed specifications as developed by
the school food authority for each food
component specified in § 210.10, or do
not otherwise meet the requirements of
the contract. Specifications shall cover
items such a grade, purchase units,
style, condition, weight, ingredients,
formulations, and delivery time.
(d) Duration of contract. The contract
between a school food authority and
food service management company
shall be of a duration of no longer than
1 year; and options for the yearly renewal of a contract signed after February 16, 1988, may not exceed 4 additional years. All contracts shall include a termination clause whereby either party may cancel for cause with
60-day notification.
[53 FR 29147, Aug. 2, 1988, as amended at 60
FR 31215, June 13, 1995; 65 FR 26912, May 9,
2000; 72 FR 61491, Oct. 31, 2007]

Subpart D—Requirements for State
Agency Participation
§ 210.17 Matching Federal funds.
(a) State revenue matching. For each
school year, the amount of State revenues appropriated or used specifically
by the State for program purposes
shall not be less than 30 percent of the
funds received by such State under section 4 of the National School Lunch
Act during the school year beginning
July 1, 1980; provided that, the State
revenues derived from the operation of
such programs and State revenues expended for salaries and administrative
expenses of such programs at the State
level are not considered in this computation. However, if the per capita income of any State is less than the per
capita income of the United States, the
matching requirements so computed
shall be decreased by the percentage by
which the State per capita income is
below the per capita income of the
United States.
(b) Private school exemption. No State
in which the State agency is prohibited

41

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00051

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.18

7 CFR Ch. II (1–1–09 Edition)

by law from disbursing State appropriated funds to nonpublic schools
shall be required to match general cash
assistance funds expended for meals
served in such schools, or to disburse
to such schools any of the State revenues required to meet the requirements
of paragraph (a) of this section. Furthermore, the requirements of this section do not apply to schools in which
the Program is administered by a
FNSRO.
(c)
Territorial
waiver.
American
Samoa and the Commonwealth of the
Northern Mariana Islands shall be exempted from the matching requirements of paragraph (a) of this section if
their respective matching requirements are under $100,000.
(d) Applicable revenues. The following
State revenues, appropriated or used
specifically for program purposes
which are expended for any school year
shall be eligible for meeting the applicable percentage of the matching requirements prescribed in paragraph (a)
of this section for that school year:
(1) State revenues disbursed by the
State agency to school food authorities
for program purposes, including revenue disbursed to nonprofit private
schools where the State administers
the program in such schools;
(2) State revenues made available to
school food authorities and transferred
by the school food authorities to the
nonprofit school food service accounts
or otherwise expended by the school
food authorities in connection with the
nonprofit school food service program;
and
(3) State revenues used to finance the
costs (other than State salaries or
other State level administrative costs)
of the nonprofit school food service
program, i.e.:
(i) Local program supervision;
(ii) Operating the program in participating schools; and
(iii) The intrastate distribution of
foods donated under part 250 of this
chapter to schools participating in the
program.
(e) Distribution of matching revenues.
All State revenues made available
under paragraph (a) of this section are
to be disbursed to school food authorities participating in the Program, except as provided for under paragraph (b)

of this section. Distribution of matching revenues may be made with respect
to a class of school food authorities as
well as with respect to individual
school food authorities.
(f) Failure to match. If, in any school
year, a State fails to meet the State
revenue matching requirement, as prescribed in paragraph (a) of this section,
the general cash assistance funds utilized by the State during that school
year shall be subject to recall by and
repayment to FNS.
(g) Reports. Within 120 days after the
end of each school year, each State
agency shall submit an Annual Report
of Revenues (FNS–13) to FNS. This report identifies the State revenues to be
counted toward the State revenue
matching requirements specified in
paragraph (a) of this section.
(h) Accounting system. The State
agency shall establish or cause to be
established a system whereby all expended State revenues counted in
meeting the matching requirements
prescribed in paragraph (a) of this section are properly documented and accounted for.
§ 210.18

Administrative reviews.

(a) Implementation dates. For the
school year beginning July 1, 1992, each
State agency shall conduct administrative reviews as prescribed under this
section. However, FNS will approve a
State agency’s written request if FNS
determines that the State agency has
demonstrated good cause to delay implementation of the provisions specified under this section to January 1,
1993. At State agency discretion, State
agencies may begin implementation of
the provisions of this section on August 16, 1991. FNS review responsibilities are specified under § 210.29 of this
part.
(b) Definitions. The following definitions are provided in order to clarify
State agency administrative review requirements:
(1) Administrative reviews means the
initial comprehensive on-site evaluation of all school food authorities participating in the Program in accordance with the provisions of this section. The term ‘‘administrative review’’ is used to reflect a review of

42

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00052

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.18
(7) Participation factor means the percentages of children approved by the
school for free lunches, reduced price
lunches, and paid lunches, respectively,
who are participating in the Program.
The free participation factor is derived
by dividing the number of free lunches
claimed for any given period by the
product of the number of children approved for free lunches for the same period times the operating days in that
period. A similar computation is used
to determine the reduced price and
paid participation factors. The number
of children approved for paid lunches is
derived by subtracting the number of
children approved for free and reduced
price lunches for any given period from
the total number of children enrolled
in the reviewed school for the same period of time, if available. If such enrollment figures are not available, the
most recent total number of children
enrolled shall be used. If school food
authority participation factors are unavailable or unreliable, State-wide
data shall be employed.
(8) Review period means the period of
time covered by the administrative review or follow-up review. The review
period is specified in paragraph (f)(2) of
this section.
(9) Review threshold means the degree
of error in a critical area of review
which, if exceeded during an administrative review or follow-up review of a
school food authority, may trigger a
follow-up review of that school food authority.
(10) Small school food authority means,
in any State, a school food authority
that participates in the Program and is
not a large school food authority, as
defined in this section.
(c) Timing of reviews. The first year of
the first 5-year review cycle began on
July 1, 1992, or as otherwise authorized
under paragraph (a) of this section and
shall end on June 30, 1994. For each
State agency, the first 5-year review
cycle shall end on June 30, 1998. Administrative reviews and follow-up reviews
shall be conducted as follows:
(1) Administrative reviews. At a minimum, State agencies shall conduct administrative reviews of all school food
authorities at least once during each 5year review cycle; provided that each
school food authority is reviewed at

both critical and general areas in accordance with paragraphs (g) and (h) of
this section, and includes other areas
of Program operations determined by
the State agency to be important to
Program performance.
(2) Critical areas means the following
two performance standards described in
detail in paragraph (g) of this section
which serve as measures of compliance
with Program regulations:
(i) Performance Standard 1—Certification/Counting/Claiming—All free, reduced price and paid lunches claimed
for reimbursement are served only to
children eligible for free, reduced price
and paid lunches, respectively; and
counted, recorded, consolidated and reported through a system which consistently yields correct claims.
(ii) Performance Standard 2—Meal Elements. Lunches claimed for reimbursement within the school food authority
contain meal elements (food items/
components, menu items or other
items, as applicable) as required under
§ 210.10.
(3) Documented corrective action means
written notification required of the
school food authority to certify that
the corrective action required for each
violation has been completed and to
notify the State agency of the dates of
completion. Documented corrective action may be provided at the time of the
review or may be submitted to the
State agency within specified timeframes.
(4) Follow-up reviews means any
visit(s) to the school food authority
subsequent to the administrative review to ensure corrective actions are
taken.
(5) General areas means the areas of
review specified in paragraph (h) of
this section.
(6) Large school food authority means,
in any State:
(i) All school food authorities that
participate in the Program and have
enrollments of 40,000 children or more
each; or
(ii) If there are less than two school
food authorities with enrollments of
40,000 or more, the two largest school
food authorities that participate in the
Program and have enrollments of 2,000
children or more each.

43

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00053

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.18

7 CFR Ch. II (1–1–09 Edition)

least once every 6 years. The on-site
portion of the administrative review
shall be completed during the school
year in which the review was begun.
(2) Expanded review cycle. State agencies are encouraged to conduct administrative reviews of large school food
authorities and of any school food authorities which may benefit from a
more frequent interval than the minimum 5-year cycle required in paragraph (c)(1) of this section.
(3) Exceptions. FNS may, on an individual school food authority basis, approve written requests for 1-year extensions to the 6-year review interval
specified in paragraph (c)(1) of this section if FNS determines this requirement conflicts with efficient State
agency management of the Program.
(4) Follow-up reviews. The State agency is encouraged to conduct first follow-up reviews in the same school year
as the administrative review; but in no
event shall first follow-up reviews be
conducted later than December 31 of
the school year following the administrative review. Subsequent follow-up
reviews shall be scheduled in accordance with paragraph (i)(5) of this section.
(d) Scheduling school food authorities.
The State agency shall use its own criteria to schedule school food authorities for administrative reviews; provided that the requirements of paragraph (c) of this section are met. State
agencies are encouraged to take into
consideration the findings of the
claims review process required under
§ 210.8(b)(2) of this part in the selection
of school food authorities.
(1) Schedule of reviews. To ensure no
unintended overlap occurs, the State
agency shall inform FNS of the anticipated schedule of school food authority
reviews upon request.
(2) Reporting follow-up review activity.
At such time as the State agency determines that a follow-up review is
needed, the State agency shall notify
FNS of the names of those large school
food authorities exceeding any one of
the critical area review thresholds
specified in paragraph (i) of this section.
(3) Exceptions. In any school year in
which FNS or OIG conducts a review or
investigation of a school food author-

ity in accordance with § 210.19(a)(5) of
this part, the State agency shall, unless otherwise authorized by FNS,
delay conduct of a scheduled administrative review until the following
school year. The State agency shall
document any exception authorized
under this paragraph.
(e) Number of schools to review. The
State agency is encouraged to review
all schools meeting the school selection criteria specified in paragraph
(e)(1) of this section. At a minimum,
the State agency shall review the number of schools specified in paragraph
(e)(1) of this section and shall select
the schools to be reviewed on the basis
of the school selection criteria specified in paragraph (e)(2) of this section.
(1) Minimum number of schools. Except
for residential child care institutions,
the State agency shall review all
schools with a free average daily participation of 100 or more and a free participation factor of 100 percent or
more. In no event shall the State agency review less than the minimum number of schools illustrated in table A:
TABLE A
No. of schools in the school food authority

Minimum no. of
schools to be reviewed

1 to 5 ....................................................
6 to 10 ..................................................
11 to 20 .................................................
21 to 40 .................................................
41 to 60 .................................................
61 to 80 .................................................
81 to 100 ...............................................
101 or more .............................................

1 Twelve plus 5 percent of the number of schools over 100.
Fractions shall be rounded to the nearest whole number.

(2) School selection criteria. (i) Selection of additional schools to meet the
minimum number of schools required
under paragraph (e)(1) of this section,
shall be based on the following criteria:
(A) Elementary schools with a free
average daily participation of 100 or
more and a free participation factor of
97 percent or more;
(B) Secondary schools with a free average daily participation of 100 or more
and a free participation factor of 77
percent or more; and
(C) Combination schools with a free
average daily participation of 100 or
more and a free participation factor of
87 percent or more. A combination

44

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00054

1
2
3
4
6
8
10
1 12

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.18

school means a school with a mixture
of elementary and secondary grades.
(ii) When the number of schools selected on the basis of the criteria established in paragraph (A) through
paragraph (C) of this paragraph are not
sufficient to meet the minimum number of schools required under paragraph
(e)(1) of this section, the schools selected for review shall be selected on
the basis of State agency criteria
which may include low participation
schools, recommendations from a food
service director based on findings from
the on-site visits or the claims review
process required under § 210.8(a) of this
part; or any school in which the daily
lunch counts appear questionable, e.g.,
identical or very similar claiming patterns, and/or large changes in free
lunch counts.
(3) Pervasive problems. If the State
agency review finds pervasive problems
in a school food authority, FNS may
authorize the State agency to cease review activities prior to reviewing the
required number of schools under paragraph (e)(1) of this section. Where FNS
authorizes the State agency to cease
review activity, FNS may either conduct the review activity itself or refer
the school food authority to OIG.
(f) Scope of review. During the course
of an administrative review, each State
agency shall monitor compliance with
the critical and general areas identified in paragraphs (g) and (h) of this
section.
(1) Review form. State agencies shall
use the administrative review form
prescribed by FNS for the critical areas
of review specified in paragraph (g) of
this section. State agencies may use
their own administrative review form
for the general areas of review specified in paragraph (h) of this section.
(2) Review period. (i) The review period for administrative reviews and follow-up reviews shall cover, at a minimum, the most recent month for
which a Claim for Reimbursement was
submitted; provided that such Claim
for Reimbursement covers at least 10
operating days.
(ii) Subject to FNS approval, the
State agency may conduct a review
early in the school year, prior to the
submission of a Claim for Reimbursement. In such cases, the review period

shall be the prior month of operation
in the current school year, provided
that such month includes at least 10
operating days.
(3) Audit findings. To prevent duplication of effort, the State agency may
use any recent and currently applicable
findings from Federally-required audit
activity or from any State-imposed
audit requirements. Such findings may
be used only insofar as they pertain to
the reviewed school(s) or the overall
operation of the school food authority
and they are relevant to the review period. The State agency shall document
the source and the date of the audit.
(g) Critical areas of review. The performance standards listed in this paragraph are deemed critical since compliance in these areas is directly linked to
the service of a reimbursable lunch.
(1) Performance Standard 1 (All free, reduced price and paid lunches claimed for
reimbursement are served only to children
eligible for free, reduced price and paid
lunches, respectively; and are counted, recorded, consolidated and reported through
a system which consistently yields correct
claims.) The State agency shall determine that the free and reduced price
eligibility determinations are correct.
In addition, the State agency shall determine that for each day of operation
for the review period, the number of
free, reduced price and paid lunches
claimed for each reviewed school is not
more than the number of lunches
served to children eligible for free, reduced price and paid lunches, respectively, in those schools for the review
period. The State agency shall also determine that a lunch counting system
is being used which accurately counts,
records, consolidates and reports the
reimbursable lunches served, by type.
(i) For each school reviewed, the
State agency shall:
(A) Determine the number of children
eligible for free, reduced price and paid
lunches, by type, for the review period.
To make this determination:
(1) The State agency shall:
(i) Review all approved free and reduced price applications for children in
the reviewed schools back to the beginning of the school year to determine
whether each child’s application is

45

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00055

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.18

7 CFR Ch. II (1–1–09 Edition)

complete and correctly approved in accordance with all applicable provisions
of 7 CFR part 245; or
(ii) Review all approved free and reduced price applications effective for
the review period for children in the reviewed schools; or
(iii) Review all approved free and reduced price applications effective on
the day(s) the review is conducted for
children in the reviewed schools.
(2) In lieu of reviewing all of the free
and reduced price applications as required under paragraph (g)(1)(i)(A)(1) of
this section, the State agency may review a statistically valid sample of
those applications. If the State agency
chooses to review a statistically valid
sample of applications, the State agency shall ensure that the sample size is
large enough so that there is a 95 percent chance that the actual error rate
for all applications is not less than 2
percentage points less than the error
rate found in the sample (i.e., the lower
bound of the one-sided 95 percent confidence interval is no more than 2 percentage points less than the point estimate). In addition, the State agency
shall determine the need for follow-up
reviews and base fiscal action upon the
error rate found in the sample.
(3) Evaluate whether the previous
year’s eligibility determinations are
used after 30 operating days following
the first day of school, or as otherwise
established by the State agency; provided that the State agency-developed
timeframe does not exceed the 30 operating day limit.
(4) In the case where children are determined eligible for free lunches based
on documentation from the local food
stamp, Food Distribution Program on
Indian Reservations (FDPIR) or Temporary Assistance for Needy Families
(TANF) office which certifies that the
children are currently members of
households receiving benefits under the
Food Stamp Program, FDPIR or
TANF, determine that the certification
from the Food Stamp Program, FDPIR
or TANF is official; all the information
required under § 245.6 of this part is
complete; and such children were enrolled in the school under review during the review period.
(B) Evaluate the system for issuing
benefits and updating eligibility status

by validating the mechanism(s) the reviewed school uses to provide benefits
to eligible children, e.g., master list.
The State agency shall determine
whether the system is adequate and,
within the timeframes established in
§ 210.7(c)(1)(ii)(B), reflects changes due
to verification findings, transfers, reported changes in household size or income, or from a household’s decision to
decline school lunch benefits or any notification from the household that it is
no longer certified to receive food
stamp, Food Distribution Program for
Households on Indian Reservations
(FDPIR) or Temporary Assistance for
Needy Families (TANF) benefits.
(C) Determine whether the lunch
counting system yields correct claims.
At a minimum, the State agency shall
determine whether:
(1) The daily lunch counts, by type,
for the review period are more than the
product of the number of children determined by the school/school food authority to be eligible for free, reduced
price, and paid lunches for the review
period times an attendance factor. If
the lunch count, for any type, appears
questionable or significantly exceeds
the product of the number of eligibles,
for that type, times an attendance factor, documentation showing good cause
must be available for review by the
State agency.
(2) Each type of food service line provides accurate point of service lunch
counts, by type, and those lunch counts
are correctly counted and recorded. If
an alternative counting system is employed (in accordance with § 210.7(c)(2)),
the State agency shall ensure that it
provides accurate counts of reimbursable lunches, by type, and is correctly
implemented as approved by the State
agency.
(3) All lunches are correctly counted,
recorded, consolidated and reported for
the day they are served.
(ii) For each school food authority
reviewed, the State agency shall review
lunch count records to ensure that the
lunch counts submitted by each reviewed school are correctly consolidated, recorded, and reported by the
school food authority on the Claim for
Reimbursement.
(2) Performance Standard 2 (Lunches
claimed for reimbursement within the

46

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00056

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.18

school food authority contain meal elements (food items/components, menu items
or other items, as applicable) as required
under § 210.10. For each school reviewed, the State agency must:
(i) For the day of the review, observe
the serving line(s) to determine whether all required meal elements (food
items/components, menu items or
other items, as applicable) as required
under § 210.10 are offered.
(ii) For the day of the review, observe
a significant number of the Program
lunches counted at the point of service
for each type of serving line, to determine whether those lunches contain
the required number of meal elements
(food items/components, menu items or
other items, as applicable) as required
under § 210.10.
(iii) Review menu records for the review period to determine whether all
required meal elements (food items/
components, menu items or other
items, as applicable) as required under
§ 210.10 have been offered.
(h) General areas of review. The general areas listed in this paragraph reflect major Program requirements. The
general areas of review shall include,
but are not limited to, the following
areas:
(1) Free and reduced price process. In
the course of the review of each school
food authority, the State agency shall:
(i) Review the implementation of the
free and reduced price policy statement
to ensure it is implemented as approved.
(ii) Evaluate whether the required
minimum number of applications are
verified with respect to the selection
method used.
(iii) Determine that applications for
verification are selected through random or focused sampling in accordance
with the provisions of § 245.6a of this
title and FNS Instructions, and that no
discrimination exists in the selection
process.
(iv) Establish that verification is
completed by December 15. If the administrative review occurs prior to the
December 15 deadline, the State agency
shall evaluate the verification activities that have occurred to date and assess whether these activities represent
a good faith effort that will result in

compliance with the requirements of
§ 245.6a of this title.
(v) Confirm that the verification
process is complete for each application verified by or on behalf of the reviewed schools. Verification is considered complete either when a child’s eligibility for the level of benefits for
which he or she was approved is confirmed, changed to a higher level of
benefit, or a letter of adverse action
has been sent.
(vi) Ensure that verification records
are
maintained
as
required
by
§ 245.6a(c) of this title.
(vii) Determine that, for each reviewed school, the lunch count system
does not overtly identify children eligible for free and reduced price lunches.
(viii) Review a representative sample
of denied applications to evaluate
whether the determining official correctly denied applicants for free and reduced price lunches.
(2) Food quantities. For each school
reviewed, the State agency must observe a significant number of Program
lunches counted at the point of service
for each type of serving line to determine whether those lunches appear to
provide meal elements (food items/
components, menu items or other
items, as applicable) in the quantities
required under § 210.10. If visual observation suggests that quantities are insufficient, the State agency shall require the reviewed schools to provide
documentation demonstrating that the
required amounts of food were available for service for each day of the review period.
(3) Civil rights. The State agency shall
examine the school food authority’s
compliance with the civil rights provisions specified in § 210.23(b) of this part.
(4) Monitoring responsibilities. The
State agency shall ensure that the
school food authority conducts on-site
reviews in accordance with § 210.8(a)(1)
of this part and monitors claims in accordance with § 210.8(a)(2) and (a)(3) of
this part.
(5) Reporting and recordkeeping. The
State agency shall determine that the
school food authority submits reports
and maintains records as required
under 7 CFR parts 210 and 245.
(i) Follow-up reviews. All school food
authorities found to have a critical

47

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00057

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.18

7 CFR Ch. II (1–1–09 Edition)

area violation in excess of any one of
the review thresholds specified in this
paragraph are subject to follow-up reviews. State agencies shall notify FNS
of the names of large school food authorities exceeding critical area review
thresholds in accordance with paragraph (d)(2) of this section. The State
agency shall conduct a first follow-up
review of any large school food authority found on an administrative review
to have critical area violations in excess of any one of the review thresholds. State agencies shall also conduct
a first follow-up review of at least 25
percent of the small school food authorities found on a review to have
critical area violations in excess of any
one of the review thresholds. State
agencies shall conduct additional follow-up reviews of any school food authority which has a critical area violation exceeding a review threshold on
the first follow-up or any subsequent
follow-up review regardless of whether
such review is conducted by FNS or the
State agency.
(1) Selection of small school food authorities. In determining which small
school food authorities to include in
the follow-up review sample, State
agencies shall select those school food
authorities which have the most serious problems, including, but not limited to, systemic accountability problems, large overclaims, significant
lunch pattern violations, etc.
(2) Selection of schools. (i) If the critical area violation(s) responsible for
follow-up review activity are limited to
school food authority level problems
(e.g. centralized application processing
or centralized kitchen), the State agency may limit the follow-up review to
the school food authority level.
(ii) If the critical area violation(s) responsible for follow-up review activity
were identified in the review of a
school(s), then State agencies shall review at least the minimum number of
schools required under paragraph (e)(1)
of this section. State agencies shall
meet the minimum number of schools
requirement by selecting those schools
found, on a previous review, to have
significant critical area violations. If
any additional schools must be selected
to meet the minimum required number, the State agency shall select from

those schools which meet State agency-developed criteria identified under
paragraph (e)(2)(ii) of this section.
(3) Review thresholds. The review
thresholds apply only to the critical
areas of review and are designed to
limit follow-up reviews to those school
food authorities with serious problems.
The provisions of paragraph (i) of this
section apply when:
(i) For Performance Standard 1—
(A) A number of the reviewed schools
in a school food authority, as specified
in Table B, have an inadequate system
for certification, issuing benefits or updating eligibility status; or for counting, recording, consolidating or reporting lunches, by type; or
(B) The school food authority has an
inadequate system for consolidating
lunch counts, by type, or for reporting
claims; or, if applicable, for certification, issuing benefits or updating eligibility status.
(C) At the school and school food authority level, a system for certification, issuing benefits or updating eligibility status is inadequate if 10 percent or more (but not less than 100
lunches) of the free and reduced price
lunches claimed for the review period
(for any school reviewed) are claimed
incorrectly due to errors of certification, benefit issuance or updating of
eligibility status.
TABLE B
Number of
schools violating performance
standard 1

Number of schools reviewed

1 to 5 ...............................................................
6 to 10 .............................................................
11 to 20 ...........................................................
21 to 30 ...........................................................
31 to 40 ...........................................................
41 to 50 ...........................................................
51 to 60 ...........................................................
61 to 70 ...........................................................
71 to 80 ...........................................................
81 to 90 ...........................................................
91 to 100 .........................................................
101 or more .....................................................

* 11 plus the number identified above for the appropriate
increment.

(ii) For Performance Standard 2—10
percent or more of the total number of
Program lunches observed in a school
food authority are missing one or more
of the required meal elements (food
items/components, menu items or

48

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00058

1
2
3
4
5
6
7
8
9
10
11
11*

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.18

other items, as applicable) as required
under § 210.10.
(4) Scope of follow-up reviews. On any
follow-up review, the State agency is
encouraged to review all of the critical
and general areas of review specified in
paragraph (g) and (h) of this section for
those schools which were not reviewed
during the administrative review. At a
minimum, the State agency shall:
(i) For each school selected for review (or for the school food authority,
as applicable,) review the critical areas
for which the review thresholds were
exceeded by the school food authority
on a previous review;
(ii) Determine whether the school
food authority has satisfactorily completed the corrective actions in accordance with paragraph (k) of this section
required for both critical and general
areas within the timeframes established by the State agency;
(iii) Evaluate whether these corrective actions resolved the problem(s);
and
(iv) If the State agency did not evaluate the certification, count and milk/
meal service procedures for the School
Breakfast Program (7 CFR part 220)
and/or the Special Milk Program for
Children (7 CFR part 215) or offering
meal supplements in after hour care
programs (7 CFR part 210) in those
schools selected for the administrative
review and participating in those Programs, the State agency shall do so for
those schools selected for the first follow-up review.
(5) Critical area violations identified in
a follow-up review. Critical area violations identified on a follow-up review
shall be addressed as follows:
(i) If, during a follow-up review, the
State agency determines, that corrective actions have not been satisfactorily completed in accordance with
the documented corrective action, the
State agency shall: require the school
food authority to resolve the problems
and to submit documented corrective
action to the State agency ; take fiscal
action for critical area violations as
specified in paragraph (m) of this section; and withhold Program payments
in accordance with paragraph (l) of this
section, until such time as a follow-up
review, requested by the school food
authority, indicates the problem has

been corrected. If the State agency determines that the corrective actions
have been completed as specified in the
documented corrective action, but
those corrective actions do not effectively resolve the problem, the State
agency shall follow the requirements
for new critical area violations specified in paragraphs (i)(5)(ii) and (iii) of
this section.
(ii) If new critical area violations are
observed that exceed a review threshold, the State agency shall: Require
the school food authority to resolve
the problems and to submit documented corrective action to the State
agency; take fiscal action as specified
in paragraph (m) of this section; and
conduct a follow-up review within 6 operating months of the first follow-up
review.
(iii) If new critical area violations
are observed which do not exceed review thresholds, the State agency
shall: Require the school food authority to resolve the problem and to submit documented corrective action to
the State agency within specified timeframes; and take fiscal action in accordance with paragraph (m) of this
section. If adequate documented corrective action is not received within
those timeframes, the State agency
shall withhold Program payments in
accordance with paragraph (l) of this
section, until such time as adequate
documented corrective action is received.
(6) General area violations identified in
a follow-up review. General area violations identified in a follow-up review
shall be addressed as follows:
(i) If, during a follow-up review, the
State agency determines that corrective actions have not been taken in accordance with the documented corrective action, the State agency shall
withhold Program payments in accordance with paragraph (l) of this section,
until such time as the State agency receives adequate documented corrective
action.
(ii) If the State agency determines
that the corrective actions taken did
not effectively resolve the problem, or
if new general area violations are observed on a follow-up review, the State
agency shall require the school food
authority to resolve the problem and

49

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00059

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.18

7 CFR Ch. II (1–1–09 Edition)

to submit documented corrective action to the State agency within specified timeframes. If adequate documented corrective action is not received within those timeframes, the
State agency shall withhold Program
payments in accordance with paragraph (l) of this section, until such
time as adequate documented corrective action is received.
(7) Exceptions. FNS may, on an individual school food authority basis, approve written requests for exceptions
to the follow-up review requirement
specified in paragraph (i)(1) of this section if FNS determines that the requirement conflicts with efficient
State agency management of the program.
(j) Exit conference and notification.
The State agency shall hold an exit
conference at the close of the administrative review and of any subsequent
follow-up review to discuss the violations observed, the extent of the violations and a preliminary assessment of
the actions needed to correct the violations. The State agency shall discuss
an appropriate deadline(s) for completion of corrective action, provided that
the deadline(s) results in the completion of corrective action on a timely
basis. After every review, the State
agency shall provide written notification of the review findings to the
school food authority’s Superintendent
(or equivalent in a non-public school
food authority) or authorized representative. The written notification
shall include the review findings, the
needed corrective actions, the deadlines for completion of the corrective
action, and the potential fiscal action.
As a part of the denial of all or a part
of a Claim for Reimbursement or withholding payment in accordance with
the provisions of this section, the State
agency shall provide the school food
authority a written notice which details the grounds on which the denial
of all or a part of the Claim for Reimbursement or withholding payment is
based. This notice, which shall be sent
by certified mail, return receipt requested, shall also include a statement
indicating that the school food authority may appeal the denial of all or a
part of a Claim for Reimbursement or
withholding payment and the entity

(i.e., FNS or State agency) to which
the appeal should be directed. The
State agency shall notify the school
food authority, in writing, of the appeal
procedures
as
specified
in
§ 210.18(q) for appeals of State agency
findings, and for appeals of FNS findings, provide a copy of § 210.29(d)(3) of
the regulations.
(k) Corrective action. Corrective action is required for any violation under
either the critical or general areas of
the review. Corrective action shall be
applied to all schools in the school food
authority, as appropriate, to ensure
that previously deficient practices and
procedures are revised system-wide.
Corrective actions may include training, technical assistance, recalculation
of data to ensure the correctness of any
claim that the school food authority is
preparing at the time of the review, or
other actions. Fiscal action shall be
taken in accordance with paragraph
(m) of this section.
(1) Extensions of the timeframes. If extraordinary circumstances arise where
a school food authority is unable to
complete the required corrective action within the timeframes specified by
the State agency, the State agency
may extend the timeframes upon written request of the school food authority.
(2) Documented corrective action. Documented corrective action is required
for any degree of violation of general
or critical areas identified in an administrative review or on any follow-up review. Documented corrective action
may be provided at the time of the review; however, it shall be postmarked
or submitted to the State agency no
later than 30 days from the deadline for
completion of each required corrective
action, as specified under paragraph (j)
of this section or as otherwise extended
by the State agency under paragraph
(k)(1) of this section. The State agency
shall maintain any documented corrective action on file for review by FNS.
(l) Withholding payment. At a minimum, the State agency shall withhold
Program payments to a school food authority as follows:
(1) Cause. (i) The State agency shall
withhold all Program payments to a
school food authority if documented

50

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00060

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.18

corrective action for critical area violation(s) which exceed the review
threshold(s) is not provided within the
deadlines specified in paragraph (k)(2)
of this section; and/or
(ii) The State agency shall withhold
all Program payments to a school food
authority if, in the event that a followup review is not conducted, the State
agency finds that corrective action for
a critical area violation which exceeded the review threshold was not completed within the deadlines specified in
paragraph (j) of this section or as otherwise extended by the State agency
under paragraph (k)(1) of this section;
and/or
(iii) The State agency shall withhold
all Program payments to a school food
authority if, on a follow-up review, the
State agency finds a critical area violation which exceeded the review
threshold on a previous review and continues to exceed the review threshold
on a follow-up review.
(iv) The State agency may withhold
payments at its discretion, if the State
agency finds that documented corrective action is not provided within the
deadlines specified in paragraph (k)(2)
of this section, that corrective action
is not complete or that corrective action was not taken as specified in the
documented corrective action for a
general area violation or for a critical
area violation which did not exceed the
review threshold.
(2) Duration. In all cases, Program
payments shall be withheld until such
time as corrective action is completed,
and documented corrective action is
received and deemed acceptable by the
State agency or as otherwise specified
in paragraph (i)(5) of this section. Subsequent to the State agency’s acceptance of the corrective actions (and a
follow-up review, when required), payments will be released for all lunches
served in accordance with the provisions of this part during the period the
payments were withheld. In very serious cases, the State agency will evaluate whether the degree of non-compliance warrants termination in accordance with § 210.25 of this part.
(3) Exceptions. The State agency may,
at its discretion, reduce the amount required to be withheld from a school
food authority pursuant to paragraph

(l)(1)(i) through (iii) of this section by
as much as 60 percent of the total Program payments when it is determined
to be in the best interest of the Program. FNS may authorize a State
agency to limit withholding of funds to
an amount less than 40 percent of the
total Program payments, if FNS determines such action to be in the best interest of the Program.
(4) Failure to withhold payments. FNS
may suspend or withhold Program payments, in whole or in part, to those
State agencies failing to withhold Program payments in accordance with
paragraph (l)(1) of this section and may
withhold administrative funds in accordance with § 235.11(b) of this title.
The withholding of Program payments
will remain in effect until such time as
the State agency documents compliance with paragraph (l)(1) of this section to FNS. Subsequent to the documentation of compliance, any withheld
administrative funds will be released
and payment will be released for any
lunches served in accordance with the
provisions of this part during the period the payments were withheld.
(m) Fiscal action. For purposes of the
critical areas of the administrative review and any follow-up reviews, fiscal
action is required for all violations of
Performance Standards 1 and 2. Except
that, on an administrative review, the
State agency may limit fiscal action
from the point corrective action occurs
back through the beginning of the review period for errors identified under
paragraphs (g)(1)(i)(A) and (g)(1)(i)(B)
of this section, provided corrective action occurs. Fiscal action shall be
taken in accordance with the provisions identified under § 210.19(c) of this
part.
(n) Miscellaneous reporting requirement. Each State agency shall report to
FNS the results of reviews by March 1
of each school year, on a form designated by FNS. In such annual reports, the State agency shall include
the results of all administrative reviews and follow-up reviews conducted
in the preceding school year.
(o) Summary of reporting requirements.
Each State agency shall report to FNS:
(1) The names of those large school
food authorities exceeding any one of
the critical area review thresholds as

51

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00061

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.18

7 CFR Ch. II (1–1–09 Edition)

described in paragraph (d)(2) of this
section.
(2) The results of reviews by March 1
of each school year on a form designated by FNS, as specified under
paragraph (n) of this section.
(p) Recordkeeping. Each State agency
shall keep records which document the
details of all reviews and demonstrate
the degree of compliance with the critical and general areas of review.
Records shall be retained by the State
agency as specified in § 210.23(c) of this
part. Such records shall include documentation of administrative reviews
and follow-up reviews. As appropriate,
the records shall include documented
corrective action, and documentation
of withholding of payments and fiscal
action, including recoveries made. Additionally, the State agency must have
on file:
(1) Criteria for selecting schools on
first and follow-up reviews in accordance with paragraphs (e)(2)(ii) and
(i)(2)(ii) of this section.
(2) Its system for selecting small
school food authorities for follow-up
reviews in accordance with paragraph
(i)(1) of this section.
(3) Documentation demonstrating
compliance with the statistical sampling requirements in accordance with
paragraph (g)(1)(i)(A)(1) of this section,
if applicable.
(q) School food authority appeal of
State agency findings. Except for FNSconducted reviews authorized under
§ 210.29(d)(2), each State agency shall
establish an appeal procedure to be followed by a school food authority requesting a review of a denial of all or a
part of the Claim for Reimbursement
or withholding payment arising from
administrative or follow-up review activity conducted by the State agency
under § 210.18 of this part. State agencies may use their own appeal procedures provided the same procedures are
applied to all appellants in the State
and the procedures meet the following
requirements: appellants are assured of
a fair and impartial hearing before an
independent official at which they may
be represented by legal counsel; decisions are rendered in a timely manner
not to exceed 120 days from the date of
the receipt of the request for review;
appellants are afforded the right to ei-

ther a review of the record with the
right to file written information, or a
hearing which they may attend in person; and adequate notice is given of the
time, date, place and procedures of the
hearing. If the State agency has not established its own appeal procedures or
the procedures do not meet the above
listed criteria, the State agency shall
observe the following procedures at a
minimum:
(1) The written request for a review
shall be postmarked within 15 calendar
days of the date the appellant received
the notice of the denial of all or a part
of the Claim for Reimbursement or
withholding of payment, and the State
agency shall acknowledge the receipt
of the request for appeal within 10 calendar days;
(2) The appellant may refute the action specified in the notice in person
and by written documentation to the
review official. In order to be considered, written documentation must be
filed with the review official not later
than 30 calendar days after the appellant received the notice. The appellant
may retain legal counsel, or may be
represented by another person. A hearing shall be held by the review official
in addition to, or in lieu of, a review of
written information submitted by the
appellant only if the appellant so specifies in the letter of request for review.
Failure of the appellant school food
authority’s representative to appear at
a scheduled hearing shall constitute
the appellant school food authority’s
waiver of the right to a personal appearance before the review official, unless the review official agrees to reschedule the hearing. A representative
of the State agency shall be allowed to
attend the hearing to respond to the
appellant’s testimony and to answer
questions posed by the review official;
(3) If the appellant has requested a
hearing, the appellant and the State
agency shall be provided with at least
10 calendar days advance written notice, sent by certified mail, return receipt requested, of the time, date and
place of the hearing;
(4) Any information on which the
State agency’s action was based shall
be available to the appellant for inspection from the date of receipt of the
request for review;

52

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00062

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.19
(h) * * *
(1) * * *
(iii) Determine that applications for
verification are selected in accordance with
the applicable procedures in § 245.6a(c) of this
chapter and that no discrimination exists in
the selection process.
(iv) Establish that verification is completed by November 15 (or other date established in accordance with § 245.6a(b)(2)(i) or
(b)(2)(ii) of this chapter) including any follow-up activities as required in § 245.6a(f)(6)
of this chapter. * * *

(5) The review official shall be an
independent and impartial official
other than, and not accountable to,
any person authorized to make decisions that are subject to appeal under
the provisions of this section;
(6) The review official shall make a
determination based on information
provided by the State agency and the
appellant, and on Program regulations;
(7) Within 60 calendar days of the
State agency’s receipt of the request
for review, by written notice, sent by
certified mail, return receipt requested, the review official shall inform the State agency and the appellant of the determination of the review
official. The final determination shall
take effect upon receipt of the written
notice of the final decision by the
school food authority;
(8) The State agency’s action shall
remain in effect during the appeal
process;
(9) The determination by the State
review official is the final administrative determination to be afforded to
the appellant.
(r) FNS review activity. The term
‘‘State agency’’ and all the provisions
specified in paragraphs (a)–(h) of this
section refer to FNS when FNS conducts administrative reviews or followup
reviews
in
accordance
with
§ 210.29(d)(2). FNS will notify the State
agency of the review findings and the
need for corrective action and fiscal action. The State agency shall pursue
any needed follow-up activity.

*

*

EFFECTIVE DATE NOTE: At 73 FR 76858, Dec.
18, 2008, § 210.18 was amended by revising
paragraphs (h)(1)(iii) and (vi) and by amending paragraph (h)(1)(iv) by revising the first
sentence and by removing the words ‘‘December 15’’ from the second sentence and
adding in their place the words ‘‘November
15,’’ effective February 17, 2009. For the convenience of the user, the revised text is set
forth as follows:
cprice-sewell on PRODPC61 with CFR

*

Administrative reviews.

*

*

*

*

*

*

*

*

*

53

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00063

*

*

§ 210.19 Additional responsibilities.
(a) General Program management. Each
State agency shall provide an adequate
number of consultative, technical and
managerial personnel to administer
programs and monitor performance in
complying with all Program requirements.
(1) Compliance with nutrition standards. (i) Beginning with School Year
1996–1997, State agencies shall evaluate
compliance, over the school week, with
the nutrition standards for lunches
and, as applicable, for breakfasts. Review activity may be confined to
lunches served under the Program unless a menu planning approach is used
exclusively in the School Breakfast
Program or unless the school food authority only offers breakfasts under
the School Breakfast Program. For
lunches, compliance with the requirements in § 210.10(b) and § 210.10(c), (d),
or (i)(1) or the procedures developed
under § 210.10(l), as applicable, is assessed. For breakfasts, see § 220.13(f)(3)
of this chapter.
(A) These evaluations may be conducted at the same time a school food
authority is scheduled for an administrative review in accordance with
§ 210.18. State agencies may also conduct these evaluations in conjunction
with technical assistance visits, other
reviews, or separately.
(B) The type of evaluation conducted
by the State agency shall be determined by the menu planning approach
chosen by the school food authority. At

[56 FR 32942, July 17, 1991; 56 FR 55527, Oct.
28, 1991, as amended at 57 FR 38584, Aug. 26,
1992; 57 FR 40729, Sept. 4, 1992; 59 FR 1894,
Jan. 13, 1994; 60 FR 31215, June 13, 1995; 60 FR
57147, Nov. 14, 1995; 64 FR 50740, 50741, Sept.
20, 1999; 64 FR 72471, Dec. 28, 1999; 65 FR 26922,
May 9, 2000]

§ 210.18

*

(vi) Ensure that verification records are
maintained as required by § 245.6a(i) of this
chapter.

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.19

7 CFR Ch. II (1–1–09 Edition)

a minimum, the State agency shall review at least one school for each type
of menu planning approach used in the
school food authority.
(C) In addition, State agencies are
encouraged to review breakfasts offered under the School Breakfast Program as well if the school food authority requires technical assistance from
the State agency to meet the nutrition
standards or if corrective action is
needed. Such review shall determine
compliance with the appropriate requirements in § 220.13(f)(3) of this chapter and may be done at the time of the
initial review or as part of a follow-up
to assess compliance with the nutrition
standards.
(ii) At a minimum, State agencies
shall conduct evaluations of compliance with the nutrition standards in
§ 210.10 and § 220.8 of this Chapter at
least once during each 5-year review
cycle provided that each school food
authority is evaluated at least once
every 6 years, except that the first cycle
shall begin July 1, 1996, and shall end
on June 30, 2003. The compliance evaluation for the nutrition standards shall
be conducted on the menu for any week
of the current school year in which
such evaluation is conducted. The week
selected must continue to represent
the
current
menu
planning
approach(es).
(iii) For school food authorities
choosing the nutrient standard or assisted nutrient standard menu planning approaches provided in § 210.10(i),
§ 210.10(j), § 220.8(e) or § 220.8(f) of this
chapter, or developed under the procedures in § 210.10(l) or § 220.8(h) of this
chapter, the State agency shall assess
the nutrient analysis to determine if
the school food authority is properly
applying the methodology in these
paragraphs, as applicable. Part of this
assessment shall be an independent review of menus and production records
to determine if they correspond to the
analysis conducted by the school food
authority and if the menu, as offered,
over a school week, corresponds to the
nutrition standards set forth in
§ 210.10(b) and the appropriate calorie
and nutrient levels in § 210.10(c) or
§ 210.10(i)(1), whichever is applicable.
(iv) For school food authorities
choosing the food-based menu planning

approaches provided in § 210.10(k) or
§ 220.8(g) of this chapter or developed
under the procedures in § 210.10(l) or
§ 220.8(h) of this chapter, the State
agency must determine if the nutrition
standards in § 210.10 and § 220.8 of this
chapter are met. The State agency
shall conduct a nutrient analysis in accordance with the procedures in
§ 210.10(i) or § 220.8(e) of this chapter, as
appropriate, except that the State
agency may:
(A) Use the nutrient analysis of any
school or school food authority that offers lunches or breakfasts using the
food-based menu planning approaches
provided in § 210.10(k) and § 220.8(g) of
this chapter and that conducts its own
nutrient analysis under the criteria for
such analysis established in § 210.10 and
§ 220.8 of this chapter for the nutrient
standard and assisted nutrient standard menu planning approaches; or
(B) Develop its own method for compliance reviews, subject to USDA approval.
(v) If the menu for the school week
fails to comply with the nutrition
standards specified in § 210.10(b) and/or
§ 220.8(a) and the appropriate nutrient
levels in either § 210.10(c), § 210.10(d), or
§ 210.10(i)(1) whichever is applicable,
and/or § 220.8(b), § 220.8(c) or § 220.8(e)(1)
of this chapter, whichever is applicable, the school food authority shall develop, with the assistance and concurrence of the State agency, a corrective
action plan designed to rectify those
deficiencies. The State agency shall
monitor the school food authority’s
execution of the plan to ensure that
the terms of the corrective action plan
are met.
(vi) For school food authorities following an alternate approach as provided under § 210.10(l) or § 220.8(h) of
this chapter that does not allow for use
of the monitoring procedures in paragraphs (a)(1)(ii) or (a)(1)(iii) of this section, the State agency shall monitor
compliance following the procedures
developed in accordance with § 210.10(l)
or § 220.8(h) of this chapter, whichever
is appropriate.
(vii) If a school food authority fails
to meet the terms of the corrective action plan, the State agency shall determine if the school food authority is

54

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00064

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.19
(3) Improved management practices.
The State agency shall work with the
school food authority toward improving the school food authority’s management practices where the State
agency has found poor food service
management practices leading to decreasing or low child participation and/
or poor child acceptance of the Program or of foods served. If a substantial number of children who routinely
and over a period of time do not favorably accept a particular item that is
offered; return foods; or choose less
than all food items/components or
foods and menu items, as authorized
under § 210.10, poor acceptance of certain menus may be indicated.
(4) Program compliance. Each State
agency shall require that school food
authorities comply with the applicable
provisions of this part. The State agency shall ensure compliance through audits, administrative reviews, technical
assistance, training guidance materials
or by other means.
(5) Investigations. Each State agency
shall promptly investigate complaints
received or irregularities noted in connection with the operation of the Program, and shall take appropriate action to correct any irregularities.
State agencies shall maintain on file,
evidence of such investigations and actions. FNS and OIG may make reviews
or investigations at the request of the
State agency or where FNS or OIG determines reviews or investigations are
appropriate.
(6) Food service management companies.
Each State agency shall annually review each contract (including all supporting documentation) between any
school food authority and food service
management company to ensure compliance with all the provisions and
standards set forth in this part before
execution of the contract by either
party. When the State agency develops
a prototype contract for use by the
school food authority that meets the
provisions and standards set forth in
this part, this annual review may be
limited to changes made to that contract. Each State agency shall review
each contract amendment between a
school food authority and food service
management company to ensure compliance with all the provisions and

working in good faith towards compliance and, if so, may renegotiate the
corrective action plan, if warranted.
However, if the school food authority
has not been acting in good faith to
meet the terms of the corrective action
plan and refuses to renegotiate the
plan, the State agency shall determine
if a disallowance of reimbursement
funds as authorized under paragraph (c)
of this section is warranted.
(2) Assurance of compliance for finances. Each State agency shall ensure
that school food authorities comply
with the requirements to account for
all revenues and expenditures of their
nonprofit school food service. School
food authorities shall meet the requirements for the allowability of nonprofit
school food service expenditures in accordance with this part and, 7 CFR part
3015 and 7 CFR part 3016, or 7 CFR part
3019, as applicable. All costs resulting
from contracts that do not meet the requirements of this part are unallowable
nonprofit school food service account
expenses. When the school food authority fails to incorporate State agency
required changes to solicitation or contract documents, all costs resulting
from the subsequent contract award
are unallowable charges to the nonprofit school food service account. The
State agency shall ensure compliance
with the requirements to limit net
cash resources and shall provide for approval of net cash resources in excess
of three months’ average expenditures.
Each State agency shall monitor,
through review or audit or by other
means, the net cash resources of the
nonprofit school food service in each
school food authority participating in
the Program. In the event that net
cash resources exceed 3 months’ average expenditures for the school food
authority’s nonprofit school food service or such other amount as may be approved in accordance with this paragraph, the State agency may require
the school food authority to reduce the
price children are charged for lunches,
improve food quality or take other action designed to improve the nonprofit
school food service. In the absence of
any such action, the State agency shall
make adjustments in the rate of reimbursement under the Program.

55

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00065

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.19

7 CFR Ch. II (1–1–09 Edition)

standards set forth in this part before
execution of the amended contract by
either party. The State agency may establish due dates for submission of the
contract or contract amendment documents. Each State agency shall perform an on-site review of each school
food authority contracting with a food
service management company, at least
once during each 5-year period. The
State agency is encouraged to conduct
such a review when performing reviews
in accordance with § 210.18. Such reviews shall include an assessment of
the school food authority’s compliance
with § 210.16 of this part. The State
agency may require that all food service management companies that wish
to contract for food service with any
school food authority in the State register with the State agency. State
agencies shall provide assistance upon
request of a school food authority to
assure compliance with Program requirements.
(b) Donated food distribution information. Information on schools eligible to
receive donated foods available under
section 6 of the National School Lunch
Act (42 U.S.C. 1755) shall be prepared
each year by the State agency with accompanying information on the average daily number of lunches to be
served in such schools. This information shall be prepared as early as practicable each school year and forwarded
no later than September 1 to the Distributing agency. The State agency
shall be responsible for promptly revising the information to reflect additions
or deletions of eligible schools, and for
providing such adjustments in participation as are determined necessary by
the State agency. Schools shall be consulted by the Distributing agency with
respect to the needs of such schools relating to the manner of selection and
distribution of commodity assistance.
(c) Fiscal action. State agencies are
responsible for ensuring Program integrity at the school food authority
level. State agencies shall take fiscal
action against school food authorities
for Claims for Reimbursement that are
not properly payable under this part
including, if warranted, the disallowance of funds for failure to take corrective action in accordance with paragraph (a)(1) of this section. In taking

fiscal action, State agencies shall use
their own procedures within the constraints of this part and shall maintain
all records pertaining to action taken
under this section. The State agency
may refer to FNS for assistance in
making a claims determination under
this part.
(1) Definition. Fiscal action includes,
but is not limited to, the recovery of
overpayment through direct assessment or offset of future claims, disallowance of overclaims as reflected in
unpaid Claims for Reimbursement, submission of a revised Claim for Reimbursement, and correction of records to
ensure that unfiled Claims for Reimbursement are corrected when filed.
Fiscal action also includes disallowance of funds for failure to take corrective action in accordance with paragraph (a)(1) of this section.
(2) General principles. When taking
fiscal action, State agencies shall consider the following:
(i) The State agency shall identify
the school food authority’s correct entitlement and take fiscal action when
any school food authority claims or receives more Federal funds than earned
under § 210.7 of this part. In order to
take fiscal action, the State agency
shall identify accurate counts of reimbursable lunches through available
data, if possible. In the absence of reliable data, the State agency shall reconstruct the lunch accounts in accordance with procedures established
by FNS. Such procedures will be based
on the best available information including, participation factors for the
review period, data from similar
schools in the school food authority,
etc.
(ii) Unless otherwise specified under
§ 210.18(m) of this part, fiscal action
shall be extended back to the beginning
of the school year or that point in time
during the current school year when
the infraction first occurred, as applicable. Based on the severity and longevity of the problem, the State agency may extend fiscal action back to
previous school years, as applicable.
The State agency shall ensure that any
Claim for Reimbursement, filed subsequent to the reviews conducted under
§ 210.18 and prior to the implementation
of corrective action, is limited to

56

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00066

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

§ 210.19

lunches eligible for reimbursement
under this part.
(iii) In taking fiscal action, State
agencies shall assume that children determined by the reviewer to be incorrectly approved for free and reduced
price lunches participated at the same
rate as correctly approved children in
the corresponding lunch category.
(3) Failure to collect. If a State agency
fails to disallow a claim or recover an
overpayment from a school food authority, as described in this section,
FNS will notify the State agency that
a claim may be assessed against the
State agency. In all such cases, the
State agency shall have full opportunity to submit evidence concerning
overpayment. If after considering all
available information, FNS determines
that a claim is warranted, FNS will assess a claim in the amount of such
overpayment against the State agency.
If the State agency fails to pay any
such demand for funds promptly, FNS
will reduce the State agency’s Letter
of Credit by the sum due in accordance
with FNS’ existing offset procedures
for Letter of Credit. In such event, the
State agency shall provide the funds
necessary to maintain Program operations at the level of earnings from a
source other than the Program.
(4) Interest charge. If an agreement
cannot be reached with the State agency for payment of its debts or for offset
of debts on its current Letter of Credit,
interest will be charged against the
State agency from the date the demand
leter was sent, at the rate established
by the Secretary of Treasury.
(5) Use of recovered payment. The
amounts recovered by the State agency
from school food authorities may be
utilized during the fiscal year for
which the funds were initially available, first, to make payments to school
food authorities for the purposes of the
Program; and second, to repay any
State funds expended in the reimbursement of claims under the Program and
not otherwise repaid. Any amounts recovered which are not so utilized shall
be returned to FNS in accordance with
the requirements of this part.
(6) Exceptions. The State agency need
not disallow payment or collect an
overpayment arising out of the situations described in paragraphs (c)(6) (i)

and (ii) of this section; provided that
the school food authority corrects the
problem(s) to the satisfaction of the
State agency:
(i) When any review or audit reveals
that a school food authority is failing
to meet the quantities for each meal
element (food item/component, menu
item or other items, as applicable) as
required under § 210.10.
(ii) When any review or audit reveals
that a school food authority is approving applications which indicate that
the households’ incomes are within the
Income Eligibility Guidelines issued by
the Department or the applications
contain food stamp or TANF case numbers or FDPIR case numbers or other
FDPIR identifiers but the applications
are missing the information specified
in paragraph (1)(ii) of the definition of
Documentation in § 245.2 of this chapter;
or
(iii) when any review or audit reveals
that a school food authority’s failure
to meet the nutrition standards of
§ 210.10 is unintentional and the school
food authority is meeting the requirements of a corrective plan developed
and
agreed
to
under
paragraph
(a)(1)(iii) of this section.
(7) Claims adjustment. FNS will have
the authority to determine the amount
of, to settle, and to adjust any claim
arising under the Program, and to compromise or deny such claim or any part
thereof. FNS will also have the authority to waive such claims if FNS determines that to do so would serve the
purposes of the Program. This provision shall not diminish the authority
of the Attorney General of the United
States under section 516 of title 28, U.S.
Code, to conduct litigation on behalf of
the United States.
(d) Management evaluations. Each
State agency shall provide FNS with
full opportunity to conduct management evaluations of all State agency
Program operations and shall provide
OIG with full opportunity to conduct
audits of all State agency Program operations. Each State agency shall
make available its records, including
records of the receipt and disbursement
of funds under the Program and records
of any claim compromised in accordance with this paragraph, upon a reasonable request by FNS, OIG, or the

57

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00067

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.20

7 CFR Ch. II (1–1–09 Edition)
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 210.19, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and on GPO Access.

Comptroller General of the United
States. FNS and OIG retain the right
to visit schools and OIG also has the
right to make audits of the records and
operations of any school. In conducting
management evaluations, reviews, or
audits in a fiscal year, the State agency, FNS, or OIG may disregard an overpayment if the overpayment does not
exceed $600. A State agency may establish, through State law, regulation or
procedure, an alternate disregard
threshold that does not exceed $600.
This disregard may be made once per
each management evaluation, review,
or audit per Program within a fiscal
year. However, no overpayment is to be
disregarded where there is substantial
evidence of violations of criminal law
or civil fraud statutes.
(e) Additional requirements. Nothing
contained in this part shall prevent a
State agency from imposing additional
requirements for participation in the
Program which are not inconsistent
with the provisions of this part.
(f) Cooperation with the Child and
Adult Care Food Program. On an annual
basis, the State agency shall provide
the State agency which administers
the Child and Adult Care Food Program with a list of all elementary
schools in the State participating in
the National School Lunch Program in
which 50 percent or more of enrolled
children have been determined eligible
for free or reduced price meals as of the
last operating day of the previous October, or other month specified by the
State agency. The first list shall be
provided by March 15, 1997; subsequent
lists shall be provided by February 1 of
each year or, if data is based on a
month other than October, within 90
calendar days following the end of the
month designated by the State agency.
The State agency may provide updated
free and reduced price enrollment data
on individual schools to the State
agency which administers the Child
and Adult Care Food Program only
when unusual circumstances render the
initial data obsolete. In addition, the
State agency shall provide the current
list, upon request, to sponsoring organizations of day care homes participating in the Child and Adult Care
Food Program.

§ 210.20 Reporting and recordkeeping.
(a) Reporting summary. Participating
State agencies shall submit forms and
reports to FNS to demonstrate compliance with Program requirements. The
reports include but are not limited to:
(1) Requests for cash to make reimbursement payments to school food authorities as required under § 210.5(a);
(2) Information on the amounts of
Federal Program funds expended and
obligated to date (SF–269) as required
under § 210.5(d);
(3) Statewide totals on Program participation (FNS–10) as required under
§ 210.5(d);
(4) Information on State funds provided by the State to meet the State
matching requirements (FNS–13) specified under § 210.17(g);
(5) The names of school food authorities in need of a follow-up review;
(6) Results of reviews and audits;
(7) Results of the commodity preference survey and recommendations
for commodity purchases as required
under § 250.13(k) of this chapter; and
(8) Results of the State agency’s review of schools’ compliance with the
food safety inspection requirement in
§ 210.13(b) by November 15 following
each of school years 2005–2006 through
2008–2009, beginning November 15, 2006.
The report will be based on data supplied by the school food authorities in
accordance with § 210.15(a)(7).
(b) Recordkeeping summary. Participating State agencies are required to
maintain records to demonstrate compliance with Program requirements.
The records include but are not limited
to:
(1) Accounting records and source
documents to control the receipt, custody and disbursement of Federal Program funds as required under § 210.5(a);
(2) Documentation supporting all
school food authority claims paid by
the State agency as required under
§ 210.5(d);
(3) Documentation to support the
amount the State agency reported having used for State revenue matching as
required under § 210.17(h);

[53 FR 29147, Aug. 2, 1988]

58

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00068

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.21
(b) Contractual responsibilities. The
standards contained in this part and 7
CFR part 3015, 7 CFR part 3016 and 7
CFR part 3019, as applicable, do not relieve the State agency or school food
authority of any contractual responsibilities under its contracts. The State
agency or school food authority is the
responsible authority, without recourse to FNS, regarding the settlement and satisfaction of all contractual and administrative issues arising
out of procurements entered into in
connection with the Program. This includes, but is not limited to source
evaluation, protests, disputes, claims,
or other matters of a contractual nature. Matters concerning violation of
law are to be referred to the local,
State, or Federal authority that has
proper jurisdiction.
(c) Procedures. The State agency may
elect to follow either the State laws,
policies and procedures as authorized
by §§ 3016.36(a) and 3016.37(a) of this
title, or the procurement standards for
other governmental grantees and all
governmental subgrantees in accordance with § 3016.36(b) through (i) of this
title. Regardless of the option selected,
States must ensure that all contracts
include any clauses required by Federal
statutes and executive orders and that
the requirements of § 3016.60(b) and (c)
of this title are followed. A school food
authority may use its own procurement procedures which reflect applicable State and local laws and regulations, provided that procurements
made with nonprofit school food service account funds adhere to the standards set forth in this part and
§§ 3016.36(b) through 3016.36(i), 3016.60
and 3019.40 through 3019.48 of this title,
as applicable, and in the applicable Office of Management and Budget Circulars. School food authority procedures
must include a written code of standards of conduct meeting the minimum
standards of § 3016.36(b)(3) or § 3019.42 of
this title, as applicable.
(1) Pre-issuance review requirement.
The State agency may impose a preissuance review requirement on a
school food authority’s proposed procurement. The school food authority
must make available, upon request by
the State agency, its procurement documents, including but not limited to

(4) Records supporting the State
agency’s review of net cash resources
as required under § 210.19(a);
(5) Reports on the results of investigations of complaints received or
irregularities noted in connection with
Program operations as required under
§ 210.19(a)
(6) Records of all reviews and audits,
including records of action taken to
correct
Program
violations;
and
records of fiscal action taken, including documentation of recoveries made;
(7) State agency criteria for selecting
schools for reviews and small school
food authorities for follow-up reviews;
(8) Documentation of action taken to
disallow improper claims submitted by
school food authorities, as required by
§ 210.19(c) and as determined through
claims processing, resulting from actions such as reviews, audits and USDA
audits;
(9) Records of USDA audit findings,
State agency’s and school food authorities’ responses to them and of corrective action taken as required by
§ 210.22(a);
(10) Records pertaining to civil rights
responsibilities
as
defined
under
§ 210.23(b);
(11) Records pertaining to the annual
food preference survey of school food
authorities as required by § 250.13(k) of
this chapter; and
(12) Records supplied by the school
food authorities showing the number of
food safety inspections obtained by
schools for each of school years 2005–
2006 through 2008–2009.
[53 FR 29147, Aug. 2, 1988, as amended at 56
FR 32948, July 17, 1991; 56 FR 55527, Oct. 28,
1991; 64 FR 50741, Sept. 20, 1999; 70 FR 34630,
June 15, 2005]

cprice-sewell on PRODPC61 with CFR

Subpart E—State
School Food
sponsibilities

Agency and
Authority Re-

§ 210.21 Procurement.
(a) General. State agencies and school
food authorities shall comply with the
requirements of this part and 7 CFR
Part 3016 or 7 CFR Part 3019, as applicable, which implement the applicable
Office of Management and Budget Circulars, concerning the procurement of
all goods and services with nonprofit
school food service account funds.

59

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00069

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.21

7 CFR Ch. II (1–1–09 Edition)

solicitation documents, specifications,
evaluation criteria, procurement procedures, proposed contracts and contract terms. School food authorities
shall comply with State agency requests for changes to procurement procedures and solicitation and contract
documents to ensure that, to the State
agency’s satisfaction, such procedures
and documents reflect applicable procurement and contract requirements
and the requirements of this part.
(2) Prototype solicitation documents and
contracts. The school food authority
must obtain the State agency’s prior
written approval for any change made
to prototype solicitation or contract
documents before issuing the revised
solicitation documents or execution of
the revised contract.
(3) Prohibited expenditures. No expenditure may be made from the nonprofit
school food service account for any
cost resulting from a procurement failing to meet the requirements of this
part.
(d) Buy American.—(1) Definition of domestic commodity or product. In this
paragraph (d), the term ‘domestic commodity or product’ means—
(i) An agricultural commodity that is
produced in the United States; and
(ii) A food product that is processed
in the United States substantially
using agricultural commodities that
are produced in the United States.
(2) Requirement. (i) In general. Subject
to paragraph (d)(2)(ii) of this section,
the Department shall require that a
school food authority purchase, to the
maximum extent practicable, domestic
commodities or products.
(ii) Limitations. Paragraph (d)(2)(i) of
this section shall apply only to—
(A) A school food authority located
in the contiguous United States; and
(B) A purchase of domestic commodity or product for the school lunch
program under this part.
(3) Applicability to Hawaii. Paragraph
(d)(2)(i) of this section shall apply to a
school food authority in Hawaii with
respect to domestic commodities or
products that are produced in Hawaii
in sufficient quantities to meet the
needs of meals provided under the
school lunch program under this part.
(e) Restrictions on the sale of milk. A
school food authority participating in

the Program, or a person approved by a
school participating in the Program,
must not directly or indirectly restrict
the sale or marketing of fluid milk (as
described in paragraph(m)(1)(ii) of this
section) at any time or in any place on
school premises or at any school-sponsored event.
(f) Cost reimbursable contracts—(1) Required provisions. The school food authority must include the following provisions in all cost reimbursable contracts, including contracts with cost
reimbursable provisions, and in solicitation documents prepared to obtain
offers for such contracts:
(i) Allowable costs will be paid from
the nonprofit school food service account to the contractor net of all discounts, rebates and other applicable
credits accruing to or received by the
contractor or any assignee under the
contract, to the extent those credits
are allocable to the allowable portion
of the costs billed to the school food
authority;
(ii)(A) The contractor must separately identify for each cost submitted
for payment to the school food authority the amount of that cost that is allowable (can be paid from the nonprofit
school food service account) and the
amount that is unallowable (cannot be
paid from the nonprofit school food
service account); or
(B) The contractor must exclude all
unallowable costs from its billing documents and certify that only allowable
costs are submitted for payment and
records have been established that
maintain the visibility of unallowable
costs, including directly associated
costs in a manner suitable for contract
cost determination and verification;
(iii) The contractor’s determination
of its allowable costs must be made in
compliance with the applicable Departmental and Program regulations and
Office of Management and Budget cost
circulars;
(iv) The contractor must identify the
amount of each discount, rebate and
other applicable credit on bills and invoices presented to the school food authority for payment and individually
identify the amount as a discount, rebate, or in the case of other applicable
credits, the nature of the credit. If approved by the State agency, the school

60

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00070

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.23
procedures to arrange for and prescribe
the scope of independent audits, provided that such audits comply with the
requirements set forth in 7 CFR part
3015.

food authority may permit the contractor to report this information on a
less frequent basis than monthly, but
no less frequently than annually;
(v) The contractor must identify the
method by which it will report discounts, rebates and other applicable
credits allocable to the contract that
are not reported prior to conclusion of
the contract; and
(vi) The contractor must maintain
documentation of costs and discounts,
rebates and other applicable credits,
and must furnish such documentation
upon request to the school food authority, the State agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the nonprofit
school food service account for any
cost resulting from a cost reimbursable
contract that fails to include the requirements of this section, nor may
any expenditure be made from the nonprofit school food service account that
permits or results in the contractor receiving payments in excess of the contractor’s actual, net allowable costs.

[53 FR 29147, Aug. 2, 1988, as amended at 71
FR 39516, July 13, 2006]

§ 210.23 Other responsibilities.
(a) Free and reduced price lunches and
meal supplements. State agencies and
school food authorities shall ensure
that lunches and meal supplements are
made available free or at a reduced
price to all children who are determined by the school food authority to
be eligible for such benefits. The determination of a child’s eligibility for free
or reduced price lunches and meal supplements is to be made in accordance
with 7 CFR part 245.
(b) Civil rights. In the operation of the
Program, no child shall be denied benefits or be otherwise discriminated
against because of race, color, national
origin, age, sex, or disability. State
agencies and school food authorities
shall comply with the requirements of:
Title VI of the Civil Rights Act of 1964;
title IX of the Education Amendments
of 1972; section 504 of the Rehabilitation Act of 1973; the Age Discrimination Act of 1975; Department of Agriculture regulations on nondiscrimination (7 CFR parts 15, 15a, and 15b); and
FNS Instruction 113–6.
(c) Retention of records. State agencies and school food authorities may
retain necessary records in their original form or on microfilm. State agency
records shall be retained for a period of
3 years after the date of submission of
the final Financial Status Report for
the fiscal year. School food authority
records shall be retained for a period of
3 years after submission of the final
Claim for Reimbursement for the fiscal
year. In either case, if audit findings
have not been resolved, the records
shall be retained beyond the 3-year period as long as required for the resolution of the issues raised by the audit.
(d) Data collection related to school
food authorities. (1) Each State agency
must collect data related to school
food authorities that have an agreement with the State agency to participate in the program for each of Federal
fiscal years 2006 through 2009, including

cprice-sewell on PRODPC61 with CFR

[53 FR 29147, Aug. 2, 1988, as amended at 64
FR 50741, Sept. 20, 1999; 70 FR 70033, Nov. 21,
2005; 71 FR 39516, July 13, 2006; 72 FR 61491,
Oct. 31, 2007]

§ 210.22 Audits.
(a) General. Unless otherwise exempt,
audits at the State and school food authority levels shall be conducted in accordance with Office of Management
and Budget Circular A–133 and the Department’s implementing regulations
at 7 CFR part 3052. For availability of
the OMB Circular mentioned in this
paragraph, please refer to 5 CFR 1310.3.
(b) Audit procedure. These requirements call for organization-wide financial and compliance audits to ascertain
whether financial operations are conducted properly; financial statements
are presented fairly; recipients and
subrecipients comply with the laws and
regulations that affect the expenditures of Federal funds; recipients and
subrecipients have established procedures to meet the objectives of federally assisted programs; and recipients
and subrecipients are providing accurate and reliable information concerning grant funds. States and school
food authorities shall use their own

61

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00071

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

§ 210.24

7 CFR Ch. II (1–1–09 Edition)

those school food authorities that participated only for part of the fiscal
year. Such data shall include:
(i) The name of each school food authority;
(ii) The city in which each participating school food authority was
headquartered and the name of the
state;
(iii) The amount of funds provided to
the participating organization, i.e., the
amount of federal funds reimbursed to
each participating school food authority; and
(iv) The type of participating organization, e.g., government agency, educational institution, non-profit organization/secular, non-profit organization/
faith-based, and ‘‘other.’’
(2) On or before August 31, 2007, and
each subsequent year through 2010,
State agencies must report to FNS
data as specified in paragraph (d)(1) of
this section for the prior Federal fiscal
year. State agencies must submit this
data in a format designated by FNS.

§ 210.25 Suspension, termination and
grant closeout procedures.
Whenever it is determined that a
State agency has materially failed to
comply with the provisions of this
part, or with FNS guidelines and instructions, FNS may suspend or terminate the Program in whole, or in part,
or take any other action as may be
available and appropriate. A State
agency may also terminate the Program by mutual agreement with FNS.
FNS and the State agency shall comply
with the provisions of 7 CFR part 3016
concerning grant suspension, termination and closeout procedures. Furthermore, the State agency shall apply
these provisions, or the parallel provisions of 7 CFR part 3019, as applicable,
to suspension or termination of the
Program in school food authorities.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56
FR 32948, July 17, 1991, and amended at 71 FR
39516, July 13, 2006]

§ 210.26 Penalties.
Whoever
embezzles,
willfully
misapplies, steals, or obtains by fraud
any funds, assets, or property provided
under this part whether received directly or indirectly from the Department, shall if such funds, assets, or
property are of a value of $100 or more,
be fined no more than $25,000 or imprisoned not more than 5 years or both; or
if such funds, assets, or property are of
a value of less than $100, be fined not
more than $1,000 or imprisoned not
more than 1 year or both. Whoever receives, conceals, or retains for personal
use or gain, funds, assets, or property
provided under this part, whether received directly or indirectly from the
Department, knowing such funds, assets, or property have been embezzled,
willfully misapplied, stolen, or obtained by fraud, shall be subject to the
same penalties.

[53 FR 29147, Aug. 2, 1988, as amended at 58
FR 42489, Aug. 10, 1993; 64 FR 50741, Sept. 20,
1999; 72 FR 24183, May 2, 2007]

Subpart F—Additional Provisions
§ 210.24

Withholding payments.

cprice-sewell on PRODPC61 with CFR

In accordance with Departmental
regulations at § 3016.43 and § 3019.62 of
this title, the State agency shall withhold Program payments, in whole or in
part, to any school food authority
which has failed to comply with the
provisions of this part. Program payments shall be withheld until the
school food authority takes corrective
action satisfactory to the State agency, or gives evidence that such corrective action will be taken, or until the
State agency terminates the grant in
accordance with § 210.25 of this part.
Subsequent to the State agency’s acceptance of the corrective actions, payments will be released for any lunches
served in accordance with the provisions of this part during the period the
payments were withheld.

[53 FR 29147, Aug. 2, 1988. Redesignated at 56
FR 32948, July 17, 1991, as amended at 64 FR
50741, Sept. 20, 1999]

§ 210.27 Educational prohibitions.
In carrying out the provisions of the
Act, the Department shall not impose
any requirements with respect to
teaching personnel, curriculum, instructions, methods of instruction, or

[56 FR 32948, July 17, 1991, as amended at 71
FR 39516, July 13, 2006; 72 FR 61492, Oct. 31,
2007]

62

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00072

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

§ 210.29
thority compliance with Program regulations, and whether the State agency
is administering the Program in accordance with Program requirements
and good management practices.
(1) Local compliance. FNS will evaluate whether the State agency has actively taken steps to ensure that
school food authorities comply with
the provisions of this part.
(2) State agency compliance. FNS will
evaluate whether the State agency has
fulfilled its State level responsibilities,
including, but not limited to the following areas: use of Federal funds; reporting and recordkeeping; agreements
with school food authorities; review of
food service management company
contracts; review of the claims payment process; implementation of the
State agency’s monitoring responsibilities; initiation and completion of corrective action; recovery of overpayments; disallowance of claims that are
not properly payable; withholding of
Program payments; oversight of school
food authority procurement activities;
training and guidance activities; civil
rights; and compliance with the State
Administrative Expense Funds requirements as specified in 7 CFR part 235.
(d) School food authority reviews. FNS
will examine State agency administration of the Program by reviewing local
Program operations. When conducting
these reviews under paragraph (d)(2) of
this section, FNS will follow all the administrative review requirements specified in § 210.18(a)–(h) of this part. When
FNS conducts reviews, the findings will
be sent to the State agency to ensure
all the needed follow-up activity occurs. The State agency will, in all
cases, be invited to accompany FNS reviewers.
(1) Observation of State agency reviews.
FNS may observe the State agency
conduct of any review and/or any follow-up review as required under this
part. At State agency request, FNS
may assist in the conduct of the review.
(2) Section 210.18 reviews. FNS will
conduct administrative reviews or follow-up reviews in accordance with
§ 210.18(a)–(h) of this part which will
count toward meeting the State agency
responsibilities identified under § 210.18
of this part.

materials of instruction in any school
as a condition for participation in the
Program.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56
FR 32948, July 17, 1991, as amended at 64 FR
50741, Sept. 20, 1999]

§ 210.28 Pilot project exemptions.
Those State agencies or school food
authorities selected for the pilot
projects mandated under section 18(d)
of the Act may be exempted by the Department from some or all of the
counting and free and reduced price application requirements of this part and
7 CFR part 245, as necessary, to conduct an approved pilot project. Additionally, those schools selected for
pilot projects that also operate the
School Breakfast Program (7 CFR part
220) and/or the Special Milk Program
for Children (7 CFR part 215), may be
exempted from the counting and free
and reduced price application requirements mandated under these Programs. The Department shall notify
the appropriate State agencies and
school food authorities of its determination of which requirements are exempted after the Department’s selection of pilot projects.

cprice-sewell on PRODPC61 with CFR

[55 FR 41504, Oct. 12, 1990. Redesignated at 56
FR 32948, July 17, 1991. Further redesignated
at 64 FR 50741, Sept. 20, 1999]

§ 210.29 Management evaluations.
(a) Management evaluations. FNS will
conduct a comprehensive management
evaluation of each State agency’s administration of the National School
Lunch Program.
(b) Basis for evaluations. FNS will
evaluate all aspects of State agency
management of the Program using
tools such as State agency reviews as
required under § 210.18 or § 210.18a of
this part; reviews conducted by FNS in
accordance with § 210.18 of this part;
FNS reviews of school food authorities
and
schools
authorized
under
§ 210.19(a)(4) of this part; follow-up reviews and actions taken by the State
agency to correct violations found during reviews; FNS observations of State
agency reviews; and audit reports.
(c) Scope of management evaluations.
The management evaluation will determine whether the State agency has
taken steps to ensure school food au-

63

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00073

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

§ 210.29

7 CFR Ch. II (1–1–09 Edition)

(3) School food authority appeal of FNS
findings. When administrative or follow-up review activity conducted by
FNS in accordance with the provisions
of paragraph (d)(2) of this section results in the denial of all or part of a
Claim for Reimbursement or withholding of payment, a school food authority may appeal the FNS findings
by filing a written request with the
Chief, Administrative Review Branch,
U.S. Department of Agriculture, Food
and Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia, 22302,
in accordance with the appeal procedures specified in this paragraph:
(i) The written request for a review of
the record shall be postmarked within
15 calendar days of the date the appellant received the notice of the denial of
all or a part of the Claim for Reimbursement or withholding payment and
the envelope containing the request
shall be prominently marked ‘‘REQUEST FOR REVIEW’’. FNS will acknowledge the receipt of the request
for appeal within 10 calendar days. The
acknowledgement will include the
name and address of the FNS Administrative Review Officer (ARO) reviewing
the case. FNS will also notify the State
agency of the request for appeal.
(ii) The appellant may refute the action specified in the notice in person
and by written documentation to the
ARO. In order to be considered, written
documentation must be filed with the
ARO not later than 30 calendar days
after the appellant received the notice.
The appellant may retain legal counsel, or may be represented by another
person. A hearing shall be held by the
ARO in addition to, or in lieu of, a review of written information submitted
by the appellant only if the appellant
so specifies in the letter of request for
review. Failure of the appellant school
food authority’s representative to appear at a scheduled hearing shall constitute the appellant school food
authority’s waiver of the right to a
personal appearance before the ARO,
unless the ARO agrees to reschedule
the hearing. A representative of FNS
shall be allowed to attend the hearing
to respond to the appellant’s testimony
and to answer questions posed by the
ARO;

(iii) If the appellant has requested a
hearing, the appellant shall be provided
with a least 10 calendar days advance
written notice, sent by certified mail,
return receipt requested, of the time,
date, and place of the hearing;
(iv) Any information on which FNS’s
action was based shall be available to
the appellant for inspection from the
date of receipt of the request for review;
(v) The ARO shall be an independent
and impartial official other than, and
not accountable to, any person authorized to make decisions that are subject
to appeal under the provisions of this
section;
(vi) The ARO shall make a determination based on information provided by FNS and the appellant, and on
Program regulations;
(vii) Within 60 calendar days of the
receipt of the request for review, by
written notice, sent by certified mail,
return receipt requested, the ARO shall
inform FNS, the State agency and the
appellant of the determination of the
ARO. The final determination shall
take effect upon receipt of the written
notice of the final decision by the
school food authority;
(viii) The action being appealed shall
remain in effect during the appeal
process;
(ix) The determination by the ARO is
the final administrative determination
to be afforded to the appellant.
(4) Coordination with State agency.
FNS will coordinate school food authority selection with the State agency
to ensure that no unintended overlap
exists and to ensure reviews are conducted in a consistent manner.
(e) Management evaluation findings.
FNS will consider the results of all its
review activity within each State, including school food authority reviews,
in performing management evaluations
and issuing management evaluation reports. FNS will communicate the findings of the management evaluation to
appropriate State agency personnel in
an exit conference. Subsequent to the
exit conference, the State agency will
be notified in writing of the management evaluation findings and any needed corrective actions or fiscal sanctions in accordance with the provisions

64

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00074

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

Pt. 210, App. A

§ 210.25 of this part and/or 7 CFR part
235.

Agriculture, 1244 Speer Boulevard,
Suite 903, Denver, Colorado 80204.

[56 FR 32949, July 17, 1991, as amended at 57
FR 38586, Aug. 26, 1992. Redesignated at 64 FR
50741, Sept. 20, 1999]

[53 FR 29147, Aug. 2, 1988. Redesignated at 55
FR 41503, Oct. 12, 1990. Further redesignated
at 56 FR 32948, July 17, 1991. Further redesignated at 64 FR 50741, Sept. 20, 1999; 65 FR
12434, Mar. 9, 2000]

§ 210.30 Regional office addresses.
School food authorities desiring information concerning the Program
should write to their State educational
agency or to the appropriate Regional
Office of FNS as indicated below:
(a) In the States of Connecticut,
Maine, Massachusetts, New Hampshire,
New York, Rhode Island, and Vermont:
Northeast Regional Office, FNS, U.S.
Department of Agriculture, 10 Causeway Street, Room 501, Boston, Massachusetts 02222–1065.
(b) In the States of Alabama, Florida,
Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, and Tennessee: Southeast Regional Office,
FNS, U.S. Department of Agriculture,
61 Forsyth Street SW, Room 8T36, Atlanta, Georgia 30303.
(c) In the States of Illinois, Indiana,
Michigan, Minnesota, Ohio, and Wisconsin: Midwest Regional Office, FNS,
U.S. Department of Agriculture, 77
West Jackson Boulevard, 20th Floor,
Chicago, Illinois 60604–3507.
(d) In the States of Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas: Southwest Regional Office,
FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5–C–30,
Dallas, Texas 75242.
(e) In the States of Alaska, American
Samoa, Arizona, California, Guam, Hawaii, Idaho, Nevada, Oregon, the Commonwealth of the Northern Mariana Islands, and Washington: Western Regional Office, FNS, U.S. Department of
Agriculture, 550 Kearny Street, Room
400, San Francisco, California 94108.
(f) In the States of Delaware, District
of Columbia, Maryland, New Jersey,
Pennsylvania, Puerto Rico, Virginia,
Virgin Islands, and West Virginia: MidAtlantic Regional Office, FNS, U.S. Department of Agriculture, 300 Corporate
Boulevard, Robbinsville, New Jersey
08691–1598.
(g) In the States of Colorado, Iowa,
Kansas, Missouri, Montana, Nebraska,
North Dakota, South Dakota, Utah,
and Wyoming: Mountain Plains Regional Office, FNS, U.S. Department of

§ 210.31 OMB control numbers.
The following control numbers have
been assigned to the information collection requirements in 7 CFR part 210
by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980, Pub. L. 96–511.
7 CFR section where requirements are described

Current OMB
control No.

210.3(b) .......................................................
210.5(d) .......................................................
210.5(d)(1) ...................................................
210.5(d)(2) ...................................................
210.5(d)(3) ...................................................
210.6(b) .......................................................
210.8 ............................................................
210.9 ............................................................
210.10(b) .....................................................
210.10(i)(1) ..................................................
210.14(c) ......................................................
210.16 ..........................................................
210.17 ..........................................................
210.17(g) .....................................................
210.18 ..........................................................
210.19 ..........................................................
210.22 ..........................................................
210.23(c) ......................................................
210.24 ..........................................................
210.27 ..........................................................

[53 FR 29147, Aug. 2, 1990. Redesignated at 55
FR 41503, Oct. 12, 1990. Further redesignated
at 56 FR 32948, July 17, 1991. Further redesignated at 64 FR 50741, Sept. 20, 1999]

APPENDIX A TO PART 210—ALTERNATE
FOODS FOR MEALS
I. ENRICHED MACARONI PRODUCTS WITH
FORTIFIED PROTEIN
1. Schools may utilize the enriched macaroni products with fortified protein defined
in paragraph 3 as a food item in meeting the
meal requirements of this part under the following terms and conditions:
(a) One ounce (28.35 grams) of a dry enriched macaroni product with fortified protein may be used to meet not more than onehalf of the meat or meat alternate requirements specified in § 210.10, when served in
combination with 1 or more ounces (28.35
grams) of cooked meat, poultry, fish, or
cheese. The size of servings of the cooked
combination may be adjusted for various age
groups.

65

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00075

0584–0327
0584–0006
0584–0002
0584–0341
0584–0341
0584–0006
0584–0006
0584–0284
0584–0006
0584–0026
0584–0329
0584–0006
0584–0006
0584–0006
0584–0006
0584–0006
0584–0075
0584–0006
0584–0006
0584–0006
0584–0006
0584–0006
0584–0006

Fmt 8010

Sfmt 8002

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Pt. 210, App. A

7 CFR Ch. II (1–1–09 Edition)

(b) Only enriched macaroni products with
fortified protein that bear a label containing
substantially the following legend shall be so
utilized: ‘‘One ounce (28.35 grams) dry weight
of this product meets one-half of the meat or
meat alternate requirements of lunch or supper of the USDA child nutrition programs
when served in combination with 1 or more
ounces (28.35 grams) of cooked meat, poultry,
fish, or cheese. In those States where State
or local law prohibits the wording specified,
a legend acceptable to both the State or
local authorities and FNS shall be substituted.’’
(c) Enriched macaroni product may not be
used for infants under 1 year of age.
2. Only enriched macaroni products with
fortified protein that have been accepted by
FNS for use in the USDA Child Nutrition
Programs may be labeled as provided in
paragraph 1(b) of this appendix. Manufacturers seeking acceptance of their product shall
furnish FNS a chemical analysis, the Protein
Digestibility-Corrected Amino Acid Score
(PDCAAS), and such other pertinent data as
may be requested by FNS, except that prior
to November 7, 1994, manufacturers may submit protein efficiency ratio analysis in lieu
of the PDCAAS. This information is to be
forwarded to: Director, Nutrition and Technical Services Division, Food and Nutrition
Service, U.S. Department of Agriculture,
3101 Park Center Drive, room 607, Alexandria, VA 22302. All laboratory analyses are to
be performed by independent or other laboratories acceptable to FNS. (FNS prefers an
independent laboratory.) All laboratories
shall retain the ‘‘raw’’ laboratory data for a
period of 1 year. Such information shall be
made available to FNS upon request. Manufacturers must notify FNS if there is a
change in the protein portion of their product after the original testing. Manufacturers
who report such a change in protein in a previously approved product must submit protein data in accordance with the method
specified in this paragraph.
3. The product should not be designed in
such a manner that would require it to be
classified as a Dietary Supplement as described by the Food and Drug Administration (FDA) in 21 CFR part 105. To be accepted
by FNS, enriched macaroni products with
fortified protein must conform to the following requirements:
(a)(1) Each of these foods is produced by
drying formed units of dough made with one
or more of the milled wheat ingredients designated in 21 CFR 139.110(a) and 139.138(a),
and other ingredients to enable the finished
food to meet the protein requirements set
out in paragraph 3.(a)(2)(i) under Enriched
Macaroni Products with Fortified Protein in
this appendix. Edible protein sources, including food grade flours or meals made from
nonwheat cereals or from oilseeds, may be
used. Vitamin and mineral enrichment nutri-

ents are added to bring the food into conformity with the requirements of paragraph
(b) under Enriched Macaroni Products with
Fortified Protein in this appendix. Safe and
suitable ingredients, as provided for in paragraph (c) under Enriched Macaroni Products
with Fortified Protein in this appendix, may
be added. The proportion of the milled wheat
ingredient is larger than the proportion of
any other ingredient used.
(2) Each such finished food, when tested by
the methods described in the pertinent sections of ‘‘Official Methods of Analysis of the
AOAC International,’’ (formerly the Association of Official Analytical Chemists), 15th
Ed. (1990) meets the following specifications.
This publication is incorporated by reference
in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be obtained from the
AOAC International, 2200 Wilson Blvd., suite
400, Arlington, VA 22201–3301. This publication may be examined at the Food and Nutrition Service, Nutrition and Technical Services Division, 3101 Park Center Drive, room
607, Alexandria, Virginia 22302 or at the National Archives and Records Administration
(NARA). For information on the availability
of this material at NARA, call 202–741–6030,
or
go
to:
http://www.archives.gov/
federallregister/codeloflfederallregulations/
ibrllocations.html.
(i) The protein content (N×6.25) is not less
than 20 percent by weight (on a 13 percent
moisture basis) as determined by the appropriate method of analysis in the AOAC manual cited in (a)(2) under Enriched Macaroni
Products with Fortified Protein in this appendix. The protein quality is not less than
95 percent that of casein as determined on a
dry basis by the PDCAAS method as described below:
(A) The PDCAAS shall be determined by
the methods given in sections 5.4.1, 7.2.1. and
8.0 as described in ‘‘Protein Quality Evaluation, Report of the Joint FAO/WHO Expert
Consultation on Protein Quality Evaluation,’’ Rome, 1990, as published by the Food
and Agriculture Organization (FAO) of the
United Nations/World Health Organization
(WHO). This report is incorporated by reference in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Copies of this report may be
obtained from the Nutrition and Technical
Services Division, Food and Nutrition Service, 3101 Park Center Drive, room 607, Alexandria, Virginia 22302. This report may also
be inspected at the National Archives and
Records Administration (NARA). For information on the availability of this material
at NARA, call 202–741–6030, or go to: http://
www.archives.gov/federallregister/
codeloflfederallregulations/
ibrllocations.html.
(B) The standard used for assessing protein
quality in the PDCAAS method is the amino
acid scoring pattern established by FAO/
WHO and United Nations University (UNU)

66

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00076

Fmt 8010

Sfmt 8002

Y:\SGML\217015.XXX

217015

Food and Nutrition Service, USDA

Pt. 210, App. A

in 1985 for preschool children 2 to 5 years of
age which has been adopted by the National
Academy of Sciences, Recommended Dietary
Allowances (RDA), 1989.
(C) To calculate the PDCAAS for an individual food, the test food must be analyzed
for proximate analysis and amino acid composition according to AOAC methods.
(D) The PDCAAS may be calculated using
FDA’s limited data base of published true digestibility values (determined using humans
and rats). The true digestibility values contained in the WHO/FAO report referenced in
paragraph 3.(a)(2)(i)(A) under Enriched Macaroni Products with Fortified Protein in this
appendix may also be used. If the digestibility of the protein is not available from
these sources it must be determined by a laboratory according to methods in the FAO/
WHO report (sections 7.2.1 and 8.0).
(E) The most limiting essential amino acid
(that is, the amino acid that is present at
the lowest level in the test food compared to
the standard) is identified in the test food by
comparing the levels of individual amino
acids in the test food with the 1985 FAO/
WHO/UNU pattern of essential amino acids
established as a standard for children 2 to 5
years of age.
(F) The value of the most limiting amino
acid (the ratio of the amino acid in the test
food over the amino acid value from the pattern) is multiplied by the percent of digestibility of the protein. The resulting number
is the PDCAAS.
(G) The PDCAAS of food mixtures must be
calculated from data for the amino acid composition and digestibility of the individual
components by means of a weighted average
procedure. An example for calculating a
PDCAAS for a food mixture of varying protein sources is shown in section 8.0 of the
FAO/WHO
report
cited
in
paragraph
3.(a)(2)(i)(A) under Enriched Macaroni Products with Fortified Protein in this appendix.
(H) For the purpose of this regulation, each
100 grams of the product (on a 13 percent
moisture basis) must contain protein in
amounts which is equivalent to that provided by 20 grams of protein with a quality
of not less than 95 percent casein. The equivalent grams of protein required per 100 grams
of product (on a 13 percent moisture basis)
would be determined by the following equation:

a×b
c

X=grams of protein required per 100 grams
of product
a=20 grams (amount of protein if casein)
b=.95 [95% × 1 (PDCAAS of casein)
c=PDCAAS for protein used in formulation
(ii) The total solids content is not less
than 87 percent by weight as determined by
the methods described in the ‘‘Official Meth-

67

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00077

Fmt 8010

Sfmt 8002

Y:\SGML\217015.XXX

217015

ER07OC94.022

cprice-sewell on PRODPC61 with CFR

X=

ods of Analysis of the AOAC International’’
cited in paragraph (a)(2) under Enriched
Macaroni Products with Fortified Protein in
this appendix.
(b)(1) Each pound of food covered by this
section shall contain 5 milligrams of thiamine, 2.2 milligrams of riboflavin, 34 milligrams of niacin or niacinamide, and 16.5 milligrams of iron.
(2) Each pound of such food may also contain 625 milligrams of calcium.
(3) Only harmless and assimilable forms of
iron and calcium may be added. The enrichment nutrients may be added in a harmless
carrier used only in a quantity necessary to
effect a uniform distribution of the nutrients
in the finished food. Reasonable overages,
within the limits of good manufacturing
practice, may be used to assure that the prescribed levels of the vitamins and mineral(s)
in paragraphs (b)(1) and (2) under Enriched
Macaroni Products with Fortified Protein in
this appendix are maintained throughout the
expected shelf life of the food under customary conditions of distribution.
(c) Ingredients that serve a useful purpose
such as to fortify the protein or facilitate
production of the food are the safe and suitable ingredients referred to in paragraph (a)
under Enriched Macaroni Products with Fortified Protein in this appendix. This does not
include color additives, artificial flavorings,
artificial sweeteners, chemical preservatives,
or starches. Ingredients deemed suitable for
use by this paragraph are added in amounts
that are not in excess of those reasonably required to achieve their intended purposes.
Ingredients are deemed to be safe if they are
not food additives within the meaning of section 201(s) of the Federal Food, Drug and
Cosmetic Act, or in case they are food additives if they are used in conformity with regulations established pursuant to section 409
of the act.
(d)(1) The name of any food covered by this
section is ‘‘Enriched Wheat llllllll
Macaroni Product with Fortified Protein’’,
the blank being filled in with appropriate
word(s) such as ‘‘Soy’’ to show the source of
any flours or meals used that were made
from non-wheat cereals or from oilseeds. In
lieu of the words ‘‘Macaroni Product’’ the
words
‘‘Macaroni’’,
‘‘Spaghetti’’,
or
‘‘Vermicelli’’ as appropriate, may be used if
the units conform in shape and size to the requirements of 21 CFR 139.110 (b), (c), or (d).
(2) When any ingredient not designated in
the part of the name prescribed in paragraph
(d)(1) under Enriched Macaroni Products
with Fortified Protein in this appendix, is
added in such proportion as to contribute 10
percent or more of the quantity of protein
contained in the finished food, the name
shall include the statement ‘‘Made with
llllllll’’, the blank being filled in
with the name of each such ingredient, e.g.
‘‘Made with nonfat milk’’.

Pt. 210, App. B

7 CFR Ch. II (1–1–09 Edition)

(3) When, in conformity with paragraph
(d)(1) or (d)(2) under Enriched Macaroni
Products with Fortified Protein in this appendix, two or more ingredients are listed in
the name, their designations shall be arranged in descending order of predominance
by weight.
(4) If a food is made to comply with a section of 21 CFR part 139, but also meets the
compositional requirements of the Enriched
Macaroni with Fortified Protein Appendix, it
may alternatively bear the name set out in
the other section.
(e) Each ingredient used shall declare its
common name as required by the applicable
section of 21 CFR part 101. In addition, the
ingredients statement shall appear in letters
not less than one half the size of that required by 21 CFR 101.105 for the declaration
of net quantity of contents, and in no case
less than one-sixteenth of an inch in height.

(2) hydration instructions; and
(3) instructions on how to combine the mix
with meat or other meat alternates.
B. How Are Alternate Protein Products Used in
the National School Lunch Program?
1. Schools, institutions, and service institutions may use alternate protein products
to fulfill all or part of the meat/meat alternate component discussed in § 210.10.
2. The following terms and conditions
apply:
a. The alternate protein product may be
used alone or in combination with other food
ingredients. Examples of combination items
are beef patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco filling,
burritos, and tuna salad.
b. Alternate protein products may be used
in the dry form (nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared from a dry concentrated form) must be such that the mixture will have a minimum of 18 percent protein by weight or equivalent amount for the
dry or partially hydrated form (based on the
level that would be provided if the product
were fully hydrated).

II. ALTERNATE PROTEIN PRODUCTS

cprice-sewell on PRODPC61 with CFR

A. What Are the Criteria for Alternate Protein
Products Used in the National School Lunch
Program?
1. An alternate protein product used in
meals planned under the food-based menu
planning approaches in § 210.10(k), must meet
all of the criteria in this section.
2. An alternate protein product whether
used alone or in combination with meat or
other meat alternates must meet the following criteria:
a. The alternate protein product must be
processed so that some portion of the nonprotein constituents of the food is removed.
These alternate protein products must be
safe and suitable edible products produced
from plant or animal sources.
b. The biological quality of the protein in
the alternate protein product must be at
least 80 percent that of casein, determined
by performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent protein by weight
when fully hydrated or formulated. (‘‘When
hydrated or formulated’’ refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other
substances which have been added).
d. Manufacturers supplying an alternate
protein product to participating schools or
institutions must provide documentation
that the product meets the criteria in paragraphs A2. a through c of this appendix.
e. Manufacturers should provide information on the percent protein contained in the
dry alternate protein product and on an as
prepared basis.
f. For an alternate protein product mix,
manufacturers should provide information
on:
(1) the amount by weight of dry alternate
protein product in the package;

C. How Are Commercially Prepared Products
Used in the National School Lunch Program?
Schools, institutions, and service institutions may use a commercially prepared meat
or meat alternate product combined with alternate protein products or use a commercially prepared product that contains only
alternate protein products.
[51 FR 34874, Sept. 30, 1986; 51 FR 41295, Nov.
14, 1986, as amended at 53 FR 29164, Aug. 2,
1988; 59 FR 51086, Oct. 7, 1994; 60 FR 31216;
June 13, 1995; 61 FR 37671, July 19, 1996; 65 FR
12434, Mar. 9, 2000; 65 FR 26912, May 9, 2000; 69
FR 18803, Apr. 9, 2004]

APPENDIX B TO PART 210—CATEGORIES
OF FOODS OF MINIMAL NUTRITIONAL
VALUE
(a) Foods of minimal nutritional value—
Foods of minimal nutritional value are:
(1) Soda Water—A class of beverages made
by absorbing carbon dioxide in potable
water. The amount of carbon dioxide used is
not less than that which will be absorbed by
the beverage at a pressure of one atmosphere
and at a temperature of 60° F. It either contains no alcohol or only such alcohol, not in
excess of 0.5 percent by weight of the finished beverage, as is contributed by the flavoring ingredient used. No product shall be
excluded from this definition because it contains artificial sweeteners or discrete nutrients added to the food such as vitamins, minerals and protein.

68

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00078

Fmt 8010

Sfmt 8002

Y:\SGML\217015.XXX

217015

cprice-sewell on PRODPC61 with CFR

Food and Nutrition Service, USDA

Pt. 210, App. B

(2) Water Ices—As defined by 21 CFR 135.160
Food and Drug Administration Regulations
except that water ices which contain fruit or
fruit juices are not included in this definition.
(3) Chewing Gum—Flavored products from
natural or synthetic gums and other ingredients which form an insoluble mass for chewing.
(4) Certain Candies—Processed foods made
predominantly from sweeteners or artifical
sweeteners with a variety of minor ingredients which characterize the following types:
(i) Hard Candy—A product made predominantly from sugar (sucrose) and corn syrup
which may be flavored and colored, is characterized by a hard, brittle texture, and includes such items as sour balls, fruit balls,
candy sticks, lollipops, starlight mints, after
dinner mints, sugar wafers, rock candy, cinnamon candies, breath mints, jaw breakers
and cough drops.
(ii) Jellies and Gums—A mixture of carbohydrates which are combined to form a stable gelatinous system of jelly-like character,
and are generally flavored and colored, and
include gum drops, jelly beans, jellied and
fruit-flavored slices.
(iii) Marshmallow Candies—An aerated confection composed as sugar, corn syrup, invert
sugar, 20 percent water and gelatin or egg
white to which flavors and colors may be
added.
(iv) Fondant—A product consisting of microscopic-sized sugar crystals which are separated by thin film of sugar and/or invert
sugar in solution such as candy corn, soft
mints.
(v) Licorice—A product made predominantly from sugar and corn syrup which is
flavored with an extract made from the licorice root.
(vi) Spun Candy—A product that is made
from sugar that has been boiled at high temperature and spun at a high speed in a special machine.
(vii) Candy Coated Popcorn—Popcorn which
is coated with a mixture made predominantly from sugar and corn syrup.
(b) Petitioning Procedures—Reconsideration
of the list of foods of minimal nutritional
value identified in paragraph (a) of this section may be pursued as follows:
(1) Any person may submit a petition to
FNS requesting that an individual food be
exempted from a category of foods of minimal nutritional value listed in paragraph (a).
In the case of artificially sweetened foods,
the petition must include a statement of the
percent of Reference Daily Intake (RDI) for
the eight nutrients listed in § 210.11(a)(2)
‘‘Foods of minimal nutritional value,’’ that
the food provides per serving and the petitioner’s source of this information. In the
case of all other foods, the petition must include a statement of the percent of RDI for
the eight nutrients listed in § 210.11(a)(2)

‘‘Foods of minimal nutritional value,’’ that
the food provides per serving and per 100 calories and the petitioner’s source of this information. The Department will determine
whether or not the individual food is a food
of minimal nutritional value as defined in
§ 210.11(a)(2) and will inform the petitioner in
writing of such determination, and the public by notice in the FEDERAL REGISTER as indicated below under paragraph (b)(3) of this
section. In determining whether an individual food is a food of minimal nutritional
value, discrete nutrients added to the food
will not be taken into account.
(2) Any person may submit a petition to
FNS requesting that foods in a particular
category of foods be classified as foods of
minimal nutritional value as defined in
§ 210.11(a)(2). The petition must identify and
define the food category in easily understood
language, list examples of the food contained
in the category and include a list of ingredients which the foods in that category usually contain. If, upon review of the petition,
the Department determines that the foods in
that category should not be classified as
foods of minimal nutritional value, the petitioners will be so notified in writing. If, upon
review of the petition, the Department determines that there is a substantial likelihood
that the foods in that category should be
classified as foods of minimal nutritional
value as defined in § 210.11(a)(2), the Department shall at that time inform the petitioner. In addition, the Department shall
publish a proposed rule restricting the sale
of foods in that category, setting forth the
reasons for this action, and soliciting public
comments. On the basis of comments received within 60 days of publication of the
proposed rule and other available information, the Department will determine whether
the nutrient composition of the foods indicates that the category should be classified
as a category of foods of minimal nutritional
value. The petitioner shall be notified in
writing and the public shall be notified of
the Department’s final determination upon
publication in the FEDERAL REGISTER as indicated under paragraph (b)(3) of this section.
(3) By May 1 and November 1 of each year,
the Department will amend appendix B to
exclude those individual foods identified
under paragraph (b)(1) of this section, and to
include those categories of foods identified
under paragraph (b)(2) of this section, provided, that there are necessary changes. The
schedule for amending appendix B is as follows:
Publication
Actions for publication
May
Deadline for receipt of petitions by USDA.

Nov. 15 .........

November
May 15.

69

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00079

Fmt 8010

Sfmt 8002

Y:\SGML\217015.XXX

217015

Pt. 210, App. C

7 CFR Ch. II (1–1–09 Edition)
Agricultural Marketing Service (AMS) of the
U.S. Department of Agriculture, and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the
Child Nutrition Programs. This program essentially involves the review of a manufacturer’s recipe or product formulation to determine the contribution a serving of a commercially prepared product makes toward
meal pattern requirements and a review of
the CN label statement to ensure its accuracy. CN labeled products must be produced
in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products
that contribute significantly to the meat/
meat alternate component of meal pattern
requirements of 7 CFR 210.10, 225.20, and
226.20 and are served in the main dish.
(b) Juice drinks and juice drink products
that contain a minimum of 50 percent fullstrength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) ‘‘CN label’’ is a food product label that
contains a CN label statement and CN logo
as defined in paragraph 3 (b) and (c) below.
(b) The ‘‘CN logo’’ (as shown below) is a
distinct border which is used around the
edges of a ‘‘CN label statement’’ as defined in
paragraph 3(c).

Publication
Actions for publication
May
USDA to notify petitioners of
results of Departmental review and publish proposed
rule (if applicable).
60 Day comment period ......

Public notice of amendment
of appendix B by.

November

Feb. 1 ...........

Aug. 1.

Feb. 1
through
Apr. 1.
May 1 ...........

Aug. 1
through
Oct. 1.
Nov. 1.

(4) Written petitions should be sent to the
Chief, Technical Assistance Branch, Nutrition and Technical Services Division, FNS,
USDA, Alexandria, Virginia 22302, on or before November 15 or May 15 of each year. Petitions must include all information specified in paragraph (b) of this appendix and
§ 220.12(b) (1) or (2) as appropriate.
[53 FR 29147, Aug. 2, 1988, as amended at 54
FR 18465, May 1, 1989; 59 FR 23614, May 6,
1994]

APPENDIX C TO PART 210—CHILD
NUTRITION LABELING PROGRAM
1. The Child Nutrition (CN) Labeling Program is a voluntary technical assistance program administered by the Food and Nutrition Service in conjunction with the Food
Safety and Inspection Service (FSIS), and

ponent of the meal pattern requirements.
For juice drinks and juice drink products the
statement shall identify their contribution
toward the vegetable/fruit component of the
meal pattern requirements,
(3) Statement specifying that the use of
the CN logo and CN statement was authorized by FNS, and
(4) The approval date.
For example:

70

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00080

Fmt 8010

Sfmt 8002

Y:\SGML\217015.XXX

217015

EC17SE91.000

cprice-sewell on PRODPC61 with CFR

(c) The ‘‘CN label statement’’ includes the
following:
(1) The product identification number (assigned by FNS),
(2) The statement of the product’s contribution toward meal pattern requirements
of 7 CFR 210.10, § 220.8 or § 220.8a, whichever is
applicable, §§ 225.20, and 226.20. The statement shall identify the contribution of a specific portion of a meat/meat alternate product toward the meat/meat alternate, bread/
bread alternate, and/or vegetable/fruit com-

Food and Nutrition Service, USDA

Pt. 215

ance with the meal pattern requirements of
7 CFR 210.10, § 220.8 or § 220.8a, whichever is
applicable, §§ 225.20, and 226.20. If a State or
Federal auditor finds that a product that is
CN labeled does not actually meet the meal
pattern requirements claimed on the label,
the auditor will report this finding to FNS.
FNS will prepare a report of the findings and
send it to the appropriate divisions of FSIS
and AMS of the USDA, National Marine
Fisheries Services of the USDC, Food and
Drug Administration, or the Department of
Justice for action against the company. Any
or all of the following courses of action may
be taken:
(a) The company’s CN label may be revoked for a specific period of time;
(b) The appropriate agency may pursue a
misbranding or mislabeling action against
the company producing the product;
(c) The company’s name will be circulated
to regional FNS offices;
(d) FNS will require the food service program involved to notify the State agency of
the labeling violation.
7. FNS is authorized to issue operational
policies, procedures, and instructions for the
CN Labeling Program. To apply for a CN
label and to obtain additional information
on CN label application procedures write to:
CN Labels, U.S. Department of Agriculture,
Food and Nutrition Service, Nutrition and
Technical Services Division, 3101 Park Center Drive, Alexandria, Virginia 22302.
[51 FR 34874, Sept. 30, 1986, as amended at 53
FR 29164, Aug. 2, 1988; 60 FR 31216, June 13,
1995; 65 FR 26912, May 9, 2000]

(d) Yields for determining the product’s
contribution toward meal pattern requirements must be calculated using the Food
Buying Guide for Child Nutrition Programs
(Program AID Number 1331).
5. In the event a company uses the CN logo
and CN label statement inappropriately, the
company will be directed to discontinue the
use of the logo and statement and the matter
will be referred to the appropriate agency for
action to be taken against the company.
6. Products that bear a CN label statement
as set forth in paragraph 3(c) carry a warranty. This means that if a food service authority participating in the Child Nutrition
Programs purchases a CN labeled product
and uses it in accordance with the manufacturer’s directions, the school or institution
will not have an audit claim filed against it
for the CN labeled product for noncompli-

Sec.
215.1 General purpose and scope.
215.2 Definitions.
215.3 Administration.
215.4 Payments of funds to States and
FNSROs.
215.5 Method of payment to States.
215.6 Use of funds.
215.7 Requirements for participation.
215.8 Reimbursement payments.
215.9 Effective date for reimbursement.
215.10 Reimbursement procedures.

71

VerDate Nov<24>2008

10:22 Mar 09, 2009

Jkt 217015

PO 00000

Frm 00081

Fmt 8010

Sfmt 8010

Y:\SGML\217015.XXX

217015

EC17SE91.002

PART 215—SPECIAL MILK
PROGRAM FOR CHILDREN

EC17SE91.001

cprice-sewell on PRODPC61 with CFR

(d) Federal inspection means inspection of
food products by FSIS, AMS or USDC.
4. Food processors or manufacturers may
use the CN label statement and CN logo as
defined in paragraph 3 (b) and (c) under the
following terms and conditions:
(a) The CN label must be reviewed and approved at the national level by FNS and appropriate USDA or USDC Federal agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection by USDA or
USDC. The Federal inspection must be performed in accordance with an approved partial or total quality control program or
standards established by the appropriate
Federal inspection service.
(c) The CN label statement must be printed
as an integral part of the product label along
with the product name, ingredient listing,
the inspection shield or mark for the appropriate inspection program, the establishment number where appropriate, and the
manufacturer’s or distributor’s name and address. The inspection marking for CN labeled
non-meat, non-poultry, and non-seafood
products with the exception of juice drinks
and juice drink products is established as follows: