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Rule2022-02327

Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium

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Published

February 7, 2022

Effective

July 1, 2022

Issuing agencies

Agriculture DepartmentFood and Nutrition Service

Abstract

USDA is finalizing its November 25, 2020, proposed rulemaking regarding child nutrition meal pattern requirements. This final rule will establish transitional standards to support the continued provision of nutritious school meals as schools respond to and recover from the pandemic and while USDA engages in notice-and-comment rulemaking to update the meal pattern standards to more comprehensively reflect the Dietary Guidelines for Americans, 2020-2025. This final rule will provide immediate relief to schools during the return to traditional school meal service following extended use of COVID-19 meal pattern flexibilities. This rule finalizes the proposed milk provision by allowing local operators of the National School Lunch Program and School Breakfast Program to offer flavored, low-fat milk (1 percent fat) for students in grades K through 12 and for sale as a competitive beverage. It will also allow flavored, low-fat milk in the Special Milk Program for Children and in the Child and Adult Care Food Program for participants ages 6 and older. Beginning in SY 2022-2023, this final rule will require at least 80 percent of the weekly grains in the school lunch and breakfast menus to be whole grain-rich. Lastly, this final rule will modify the proposed sodium standards and establish Sodium Target 1 as the sodium limit for school lunch and breakfast in SY 2022-2023 as proposed, but implement a Sodium Interim Target 1A effective for school lunch beginning in SY 2023-2024.

Full Text

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[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Rules and Regulations]
[Pages 6984-7023]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02327]

[[Page 6983]]

Vol. 87

Monday,

No. 25

February 7, 2022

Part III

Department of Agriculture

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Food and Nutrition Service

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7 CFR Parts 210, 215, 220, et al.

Child Nutrition Programs: Transitional Standards for Milk, Whole
Grains, and Sodium; Final Rule

Federal Register / Vol. 87 , No. 25 / Monday, February 7, 2022 /
Rules and Regulations

[[Page 6984]]

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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, and 226

[FNS-2020-0038]
RIN 0584-AE81

Child Nutrition Programs: Transitional Standards for Milk, Whole
Grains, and Sodium

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule with request for comments.

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SUMMARY: USDA is finalizing its November 25, 2020, proposed rulemaking
regarding child nutrition meal pattern requirements. This final rule
will establish transitional standards to support the continued
provision of nutritious school meals as schools respond to and recover
from the pandemic and while USDA engages in notice-and-comment
rulemaking to update the meal pattern standards to more comprehensively
reflect the Dietary Guidelines for Americans, 2020-2025. This final
rule will provide immediate relief to schools during the return to
traditional school meal service following extended use of COVID-19 meal
pattern flexibilities. This rule finalizes the proposed milk provision
by allowing local operators of the National School Lunch Program and
School Breakfast Program to offer flavored, low-fat milk (1 percent
fat) for students in grades K through 12 and for sale as a competitive
beverage. It will also allow flavored, low-fat milk in the Special Milk
Program for Children and in the Child and Adult Care Food Program for
participants ages 6 and older. Beginning in SY 2022-2023, this final
rule will require at least 80 percent of the weekly grains in the
school lunch and breakfast menus to be whole grain-rich. Lastly, this
final rule will modify the proposed sodium standards and establish
Sodium Target 1 as the sodium limit for school lunch and breakfast in
SY 2022-2023 as proposed, but implement a Sodium Interim Target 1A
effective for school lunch beginning in SY 2023-2024.

DATES:
Effective date: This final rule will become effective July 1, 2022.
Comment date: Written comments on this final rule should be
received on or before March 24, 2022, to receive consideration.

ADDRESSES: The Food and Nutrition Service, USDA, invites interested
persons to submit written comments on the provisions of this final
rule. Interested persons are also invited to comment on considerations
for future rulemaking related to the school nutrition requirements. In
the coming months, the public will have an additional opportunity to
comment when the Food and Nutrition Service publishes a new proposed
rule related to the school meal pattern requirements. Comments related
to this final rule may be submitted in writing by one of the following
methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the online instructions for submitting
comments.
<bullet> Mail: Send comments to Tina Namian, Chief, School Programs
Branch, Policy and Program Development Division--4th Floor, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314;
telephone: 703-305-2590.
All written comments submitted in response to this final rule will
be included in the record and will be made available to the public.
Please be advised that the substance of the comments and the identity
of the individuals or entities submitting the comments will be subject
to public disclosure. The Food and Nutrition Service will make the
written comments publicly available on the internet via <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Tina Namian, Chief, School Programs
Branch, Policy and Program Development Division--4th Floor, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314;
telephone: 703-305-2590.

SUPPLEMENTARY INFORMATION:

Table of Abbreviations

APA--Administrative Procedure Act
CACFP--Child and Adult Care Food Program
FDA--U.S. Food and Drug Administration
FFCRA--Families First Coronavirus Response Act
FNS--Food and Nutrition Service
HEI--Healthy Eating Index
ICN--Institute of Child Nutrition
NSLP--National School Lunch Program
SBP--School Breakfast Program
SFA--School Food Authority
SFSP--Summer Food Service Program
SMP--Special Milk Program
SY--School Year
USDA--United States Department of Agriculture

I. Background

This final rule establishes transitional standards for the Child
Nutrition Program requirements related to milk, whole grains, and
sodium to support schools after more than two years of serving meals
under pandemic conditions. This final rule will apply as the U.S.
Department of Agriculture (USDA) works to strengthen the school meal
pattern requirements through another notice-and-comment rulemaking
based on a comprehensive review of the Dietary Guidelines for
Americans, 2020-2025 (Dietary Guidelines). As described further below,
USDA plans to promulgate a new rule for long-term meal pattern
requirements to be effective starting in school year (SY) 2024-2025.
The standards in this final rule are intended to be transitional and in
effect for only two school years (SY 2022-2023 and SY 2023-2024). In
case of a delay, the standards in this rule will remain effective until
subsequent standards are promulgated. Nevertheless, because USDA
intends to establish new meal pattern requirements for SY 2024-2025 and
beyond, the standards in this rule will be referred to as
``transitional.''
This rule finalizes the proposed rule Restoration of Milk, Whole
Grains, and Sodium Flexibilities (85 FR 75241, November 25, 2020) with
some modifications based on review of the comments received,
circumstances caused by the COVID-19 pandemic, and current dietary
science. Although the proposed rule would have implemented permanent
changes to the school meal standards, USDA agrees with public comments
that making permanent changes in response to circumstances created by
COVID-19 is not a viable long-term solution. However, public comments
also asserted that due to the financial and operational impacts of the
pandemic, it would be unrealistic for USDA to expect schools to fully
meet certain meal standard requirements in the immediate term, and
supported allowing more time for product innovation and implementation.
As noted, following publication of this final rule, USDA intends to
propose a new rulemaking to continue to support successful, science-
based meal pattern requirements based on a comprehensive review of the
Dietary Guidelines for Americans, 2020-2025 and meaningful stakeholder
input. USDA will develop updated standards through the new rulemaking
for implementation in SY 2024-2025 and beyond, based on current
nutrition science and public input on how to build on the success of
school meals in supporting healthy eating and improved dietary
outcomes.
In 2012, the USDA updated the National School Lunch Program (NSLP)
and School Breakfast Program (SBP) meal requirements, as required by
the National School Lunch Act in Section 4(b)(3)(A), 42 U.S.C.
1753(b)(3)(A). These new meal requirements were a key component of the
Healthy, Hunger-

[[Page 6985]]

Free Kids Act, (Pub. L. 111-296), and raised school meal nutrition
standards for the first time in more than 15 years. The updated
requirements were largely based on recommendations issued by the
National Academy of Medicine (formerly the Institute of Medicine),
which, in turn, were based on the 2005 Dietary Guidelines. The
implementing regulations \1\ increased the availability of fruits,
vegetables, whole grains, and fat-free and low-fat milk in school
meals; limited sodium and saturated fat and eliminated trans fat in the
weekly school menu; and established calorie ranges intended to meet
part of the age-appropriate calorie needs of children.
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\1\ Nutrition Standards in the National School Lunch and School
Breakfast Programs (77 FR 4088, January 26, 2012). Available at:
<a href="https://www.federalregister.gov/documents/2012/01/26/2012-1010/nutrition-standards-in-the-national-school-lunch-and-school-breakfast-programs">https://www.federalregister.gov/documents/2012/01/26/2012-1010/nutrition-standards-in-the-national-school-lunch-and-school-breakfast-programs</a>.
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Regarding the milk, grains, and sodium requirements, the
regulations implemented in 2012:
<bullet> Allowed flavoring only in fat-free milk in the NSLP and
SBP;
<bullet> Required that at least half of the grains offered in the
NSLP be whole grain-rich (meaning the grain product contains at least
50 percent whole grains and the remaining grain content of the product
must be enriched) in SY 2012-2013 and one year later in the SBP; and
required that effective SY 2014-2015, all grains offered in both
programs be whole grain-rich; and
<bullet> Required schools participating in the NSLP and SBP to
reduce the sodium content of meals offered on average over the school
week by meeting progressively lower sodium targets over a 10-year
period (Target 1, Target 2, and the Final Target).\2\
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\2\ Sodium reduction timeline and amounts in the National School
Lunch Program, from final rule Nutrition Standards in the National
School Lunch and School Breakfast Programs (77 FR 4088, January 26,
2012).

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Target 1 (mg) Target 2 (mg) Final Target (mg)
Age/grade group July 1, 2014 July 1, 2017 July 1, 2022 (SY
(SY 2014-2015) (SY 2017-2018) 2022-2023)
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K-5.................................................... <1,230 <935 <640
6-8.................................................... <1,360 <1,035 <710
9-12................................................... <1,420 <1,080 <740
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Before and after the regulations were implemented in 2012, USDA
offered guidance, technical assistance resources, and tailored
trainings for schools in collaboration with the Institute of Child
Nutrition (ICN) (formerly the National Food Service Management
Institute). Program advocates, the food industry, and other
stakeholders also collaborated with USDA in different ways to assist
schools with implementation. This enabled many schools to adopt most of
the changes to the NSLP and SBP meal patterns. USDA acknowledges the
significant efforts and progress these schools have achieved, and is
committed to further meal pattern improvements to address children's
nutritional needs.
Many components of the 2012 regulations were successfully
implemented, and had measurable, positive impacts, as demonstrated by
the Healthy Eating Index (HEI) scores associated with school meals and
recent research showing that U.S. children get their healthiest meals
of the day at school.\3\ The HEI is a measure of diet quality used to
assess how well a set of foods aligns with key recommendations of the
Dietary Guidelines, with scores ranging from 0 to 100. An ideal overall
HEI score of 100 reflects that the set of foods aligns with key dietary
recommendations from the Dietary Guidelines.\4\ For example, the school
lunch average total HEI score increased by 24 points (57.9 to 81.5)
from SY 2009-2010 to SY 2014-2015. For school breakfast, the average
total HEI score increased by 21 points (49.6 to 71.3) over the same
time period.\5\ Many schools had great success in implementing the
updated nutrition standards in a way that encourages healthy eating and
participation.
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\3\ Liu J, Micha R, Li Y, Mozaffarian D. Trends in Food Sources
and Diet Quality Among US Children and Adults, 2003-2018. JAMA.
April 12, 2021. Available at: <a href="https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921">https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921</a>.
\4\ For more information about the Healthy Eating Index, see How
the HEI Is Scored: <a href="https://www.fns.usda.gov/how-hei-scored">https://www.fns.usda.gov/how-hei-scored</a>.
\5\ School Nutrition and Meal Cost Study findings suggest that
the updated nutrition standards have had a positive and significant
influence on the nutritional quality of school meals. Between SY
2009-2010 and SY 2014-2015, ``Healthy Eating Index-2010'' (HEI)
scores for NSLP and SBP increased significantly, suggesting that the
updated standards significantly improved the nutritional quality of
school meals. Over this period, the mean HEI score for NSLP lunches
increased from 57.9 to 81.5, and the mean HEI score for SBP
breakfasts increased from 49.6 to 71.3. The study is available at:
<a href="https://www.fns.usda.gov/school-nutrition-and-meal-cost-study">https://www.fns.usda.gov/school-nutrition-and-meal-cost-study</a>. (OMB
Control Number 0584-0596, expiration date 07/31/2017.)
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However, full implementation of the 2012 meal pattern requirements
for milk, whole grains, and sodium has been delayed due to legislative
and administrative actions. Through multiple annual appropriations
bills,\6\ Congress directed USDA to provide flexibilities for these
specific requirements. Mainly in response to this congressional
direction, USDA issued several policy memoranda addressing the affected
nutritional requirements for each specified time period.\7\ For
example, as required by the Consolidated Appropriations Act, 2017 (Pub.
L. 115-31), USDA issued policy guidance providing milk, whole grains,
and sodium flexibilities for SY 2017-2018.\8\ This guidance allowed
State agencies to grant exemptions to allow flavored, low-fat milk in
the NSLP and SBP and as a competitive food if schools demonstrated
hardship by documenting a reduction in student milk consumption or an
increase in school milk waste. For whole grains, the guidance allowed
State agencies to offer exemptions to the whole grain-rich requirements
if SFAs could demonstrate hardship in procuring, preparing, or serving
compliant products that were accepted by students. Finally, for sodium,
the guidance allowed schools

[[Page 6986]]

to continue to meet Sodium Target 1 in SY 2017-2018.
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\6\ These include Section 743 of the Consolidated and Further
Continuing Appropriations Act, 2012 (Pub. L. 112- 55); Sections 751
and 752 of the Consolidated and Further Continuing Appropriations
Act, 2015 (Pub. L. 113-235); Section 733 of the Consolidated
Appropriations Act, 2016 (Pub. L. 114-113); Section 747 of the
Consolidated Appropriations Act, 2017 (Pub. L. 115- 31)
(Consolidated Appropriations Act, 2017). For a more detailed
discussion, please see the interim final rule Child Nutrition
Programs: Flexibilities for Milk, Whole Grains, and Sodium
Requirements (82 FR 56703, at 56704, November 30, 2017). Available
at: <a href="https://www.federalregister.gov/documents/2017/11/30/2017-25799/child-nutrition-programs-flexibilities-for-milk-whole-grains-and-sodium-requirements">https://www.federalregister.gov/documents/2017/11/30/2017-25799/child-nutrition-programs-flexibilities-for-milk-whole-grains-and-sodium-requirements</a>.
\7\ These include SP 20-2015, Requests for Exemption from the
School Meals' Whole Grain-Rich Requirement for School Years 2014-
2015 and 2015-2016; SP 33-2016, Extension Notice: Requests for
Exemption from the School Meals' Whole Grain-Rich Requirement for
School Year 2016-2017; and SP 32-2017, School Meal Flexibilities for
School Year 2017-2018.
\8\ SP 32-2017, May 22, 2017, School Meal Flexibilities for
School Year 2017-2018.
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USDA's policy guidance for SY 2017-2018 was followed by the interim
final rule Child Nutrition Programs: Flexibilities for Milk, Whole
Grains, and Sodium Requirements (82 FR 56703, November 30, 2017), which
established regulations that extended school meal flexibilities through
SY 2018-2019 and applied the flavored milk flexibility to the Special
Milk Program for Children (SMP) and the Child and Adult Care Food
Program (CACFP) for participants age 6 and older in SY 2018-2019 only.
As a result, the regulations applicable in SY 2018-2019 provided
flexibility in three specific areas while retaining other essential
meal requirements from the 2012 rule (for example, fruit and vegetable
quantities, saturated and trans fat limits, and calorie ranges) that
contribute to heathy meals. In brief, for SY 2018-2019, the interim
final rule:
<bullet> Provided NSLP and SBP operators the option to offer
flavored, low-fat (1 percent fat) milk with reimbursable meals in
grades K through 12 and as a beverage for sale during the school day,
and applied the flexibility in the SMP and CACFP for participants age 6
and older;
<bullet> Allowed State agencies to continue granting school food
authority (SFA) exemption requests to use specific alternative grain
products if the SFA could demonstrate hardship(s) in procuring,
preparing, or serving specific products that were acceptable to
students and compliant with the whole grain-rich requirement; and
<bullet> Retained Sodium Target 1 in the NSLP and SBP.
USDA issued a final rule in December 2018 (83 FR 63775, December
12, 2018). In general, the 2018 final rule, which became effective on
July 1, 2019, generally codified the flexibilities offered in the 2017
interim final rule but made some key modifications. The optional
flexibilities codified in the 2018 final rule included the following
targeted changes with the balance of the meal pattern remaining intact:
<bullet> Allowing schools in the NSLP and SBP to offer flavored,
low-fat milk at lunch and breakfast for grades K through 12 and as a
beverage for sale [agrave] la carte, and requiring that unflavored milk
(fat-free or low-fat) be available at each school meal service, as well
as allowing flavored, low-fat milk in the SMP and CACFP for
participants ages 6 and older, for consistency across the Child
Nutrition Programs;
<bullet> Requiring that at least half of the weekly grains in the
NSLP and SBP be whole grain-rich and that the remaining weekly grains
offered be enriched; and
<bullet> Retaining Sodium Target 1 through SY 2023-2024, moving
Target 2 to SY 2024-2025, and eliminating the Final Target.
On April 3, 2019, the Center for Science in the Public Interest
challenged the 2018 final rule claiming the regulation was unlawful
under the Administrative Procedure Act (APA). On April 13, 2020, the
District of Maryland, in Center for Science in the Public Interest v.
Perdue, 438 F. Supp. 3d 546 (D. Md. 2020), vacated the rule. The court
found that while the standards finalized by that rule were reasonable
interpretations of relevant statutory language that gave discretion to
USDA to promulgate standards ``based on'' the Dietary Guidelines but
not necessarily matching the Dietary Guidelines, 438 F. Supp. 3d at
562-64, the 2018 final rule was not a logical outgrowth of the 2017
interim final rule, and therefore violated the APA.
When the 2018 final rule was vacated, the meal pattern requirements
immediately reverted to the 2012 regulations. USDA published a notice
in the Federal Register that removed the regulatory text that was
changed by the 2018 final rule and replaced it with the regulatory text
from the 2012 final rule (85 FR 74847, November 24, 2020). In addition,
on November 25, 2020, USDA issued a new proposed rule that would have
codified the operational flexibilities included in the 2018 final rule
(85 FR 75241, November 25, 2020).
The vacatur of the 2018 rule coincided with the COVID-19 pandemic.
Beginning in March 2020, using authority provided by the Families First
Coronavirus Response Act (FFCRA) (Pub. L. 116-127), which was not at
issue in the court ruling, USDA published a series of nationwide
waivers to provide flexibility to a variety of program requirements so
that children continued to have access to nutritious meals during the
pandemic.\9\ Along with several other waivers, meal pattern waivers
provided by USDA facilitated the service of grab-and-go meals, which
helped schools provide a safe and socially distanced meal service for
the remainder of SY 2019-2020. For example, under the standard NSLP and
SBP requirements, meals must meet age/grade group requirements and
children must have a choice (at least two different options) for fluid
milk. The waivers gave schools flexibility for these and other
requirements that were more difficult to meet when serving pre-packaged
meals, bulk meals, or to-go meals that parents or guardians took home
to their children. During SY 2020-2021, using FFCRA authority,\10\ USDA
provided waivers to allow schools to operate the Summer Food Service
Program (SFSP), which operates under separate, simpler meal pattern
requirements, and which was not affected by the court ruling. For SY
2021-2022, USDA focused on supporting the safe reopening of schools and
moving toward meals that meet the NSLP and SBP standards. To this end,
USDA issued a nationwide waiver based on the FFCRA authority allowing
schools to operate the NSLP Seamless Summer Option, which follows the
NSLP and SBP meal patterns, during the regular school year. Under
another nationwide waiver, schools that were unable to meet the NSLP
and SBP standards due to the pandemic could request targeted meal
pattern waivers from their State agency, including those providing
flexibility for the milk, whole grains, and sodium requirements.\11\
Therefore, the new, independent statutory authority that Congress
provided in response to COVID-19 authorized significant but temporary
flexibilities from the 2012 standards for milk, whole grains, and
sodium. USDA recognizes that schools may not be prepared to immediately
implement the 2012 meal standards for milk, whole grains, and sodium
when the current COVID-19 meal pattern waiver expires on June 30, 2022.
With this rule, USDA intends to provide a transitional approach in
these areas while also acknowledging that a return to stronger
nutrition standards is imperative to support healthy eating and
improved dietary outcomes.
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\9\ USDA's COVID-19 nationwide waivers are available at: <a href="https://www.fns.usda.gov/fns-disaster-assistance/fns-responds-covid-19/child-nutrition-covid-19-waivers">https://www.fns.usda.gov/fns-disaster-assistance/fns-responds-covid-19/child-nutrition-covid-19-waivers</a>.
\10\ On October 1, 2020, the FFCRA was extended by the
Continuing Appropriations Act 2021 and Other Extensions Act (Pub. L.
116-159).
\11\ See Nationwide Waiver to Allow Specific School Meal Pattern
Flexibility for School Year 2021-2022: <a href="https://www.fns.usda.gov/cn/child-nutrition-response-90">https://www.fns.usda.gov/cn/child-nutrition-response-90</a>.
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Establishing Strong School Meal Nutrition Standards

Throughout the pandemic, the critical role of the school meal
programs has become increasingly clear. Food hardship increased in
spring 2020 and has remained high during the public health emergency.
In March 2021, households with children were more likely to report that
their household did not get enough to eat (11 percent, compared to 7
percent of households without children). Black and Latino households
also experienced disproportionate rates of food hardship; in March
2021, 16 percent of Black and

[[Page 6987]]

Latino households reported that their household did not get enough to
eat compared to 6 percent of White households.\12\ Federal nutrition
programs, including the school meal programs, have played a critical
role in supporting individuals, families, and children facing food and
nutrition insecurity during this challenging time. In response to the
COVID-19 pandemic, it was essential for USDA to provide schools with
broad flexibility to support families in need. It is equally critical
now to establish the pathway to return to strong school nutrition
standards consistent with current dietary science.
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\12\ Center on Budget and Policy Priorities: Number of Families
Struggling to Afford Food Rose Steeply in Pandemic and Remains High,
Especially Among Children and Households of Color, April 27, 2021.
Available at: <a href="https://www.cbpp.org/sites/default/files/4-27-21fa2.pdf">https://www.cbpp.org/sites/default/files/4-27-21fa2.pdf</a>.
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School meals are one of the most powerful tools for ensuring
children have access to healthy and nutritious food, and evidence shows
that strong school nutrition standards are effective. After the 2012
rule went into effect, the HEI component scores for fruits jumped from
77 percent to 95 percent of the maximum score, and the scores for
vegetables jumped from 75 percent to 82 percent. The updated standards
also reduced empty calories, with the HEI component score for empty
calories improving from 73 percent to 96 percent of the maximum
possible score.\13\ USDA research on implementation of the 2012
standards also found that students who ate school lunches were more
likely to consume milk, fruits, and vegetables at lunch, and less
likely to consume desserts, snack items, and non-milk beverages at
lunch, compared to students who ate lunches from home or other
places.\14\ Another study found higher diet quality associated with the
2012 rule extended to low-income, low-middle-income, and middle-high-
income students participating in the school lunch program.\15\ Recent
research shows that U.S. children get their healthiest meals of the day
at school,\16\ and for many children, the meals they receive from
school are a primary source of food, providing up to half their dietary
intake every school day.\17\
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\13\ See School Meals Are More Nutritious After Updated
Nutrition Standards. Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic2_NutritionalQualityofSchool%20Meals.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic2_NutritionalQualityofSchool%20Meals.pdf</a>.
\14\ See Lunches Consumed From School Are the Most Nutritious.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic5_SchoolLunchesAretheMostNutritious.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic5_SchoolLunchesAretheMostNutritious.pdf</a>.
\15\ Kinderknecht K, Harris C, Jones-Smith J. Association of the
Healthy, Hunger-Free Kids Act With Dietary Quality Among Children in
the US National School Lunch Program. JAMA. July 28, 2020. Available
at: <a href="https://jamanetwork.com/journals/jama/article-abstract/2768807">https://jamanetwork.com/journals/jama/article-abstract/2768807</a>.
\16\ Liu J, Micha R, Li Y, Mozaffarian D. Trends in Food Sources
and Diet Quality Among US Children and Adults, 2003-2018. JAMA.
April 12, 2021. Available at: <a href="https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921">https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921</a>.
\17\ Karen Weber Cullen, Tzu-An Chen, The contribution of the
USDA school breakfast and lunch program meals to student daily
dietary intake, Preventive Medicine Reports. March 2017. Available
at: <a href="https://www.sciencedirect.com/science/article/pii/S2211335516301516">https://www.sciencedirect.com/science/article/pii/S2211335516301516</a>.
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Improving nutrition is a critical element in preventing childhood
obesity, which puts children at risk for poor health,\18\ and in
combatting the serious effects of diet-related disease. The pandemic
has added urgency to the already critical issue of nutrition
insecurity, as diet-related chronic diseases including diabetes,
hypertension, and heart failure made people more vulnerable to COVID-
19.\19\ Further, these conditions are costly; total spending to treat
cardiovascular disease, cancer, and diabetes in the United States was
$383.6 billion in 2018, which was 18 percent higher than in 2009.
According to the Government Accountability Office, government spending
accounted for the majority (54 percent) of spending for treatment of
cardiovascular diseases, cancer, and diabetes in 2018. Total government
spending for diet-related health conditions increased 30 percent from
2009 through 2018.\20\ Children facing nutrition insecurity are at a
higher risk for diet-related chronic diseases. By contrast, healthy
eating can reduce an individual's risk of developing high blood
pressure, heart disease, type 2 diabetes, cancer, and other harmful
conditions.\21\
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\18\ According to the Centers for Disease Control and
Prevention, in 2017-2018, the prevalence of obesity was 19.3 percent
among children and adolescents, aged 2-19. Childhood obesity is also
more common among certain populations. See Centers for Disease
Control and Prevention: Childhood Obesity Facts--Prevalence of
Childhood Obesity in the United States. Available at: <a href="https://www.cdc.gov/obesity/data/childhood.html">https://www.cdc.gov/obesity/data/childhood.html</a>.
\19\ Coronavirus Disease 2019 Hospitalizations Attributable to
Cardiometabolic Conditions in the United States: A Comparative Risk
Assessment Analysis. O'Hearn M, Liu J, Cudhea F, Micha R,
Mozaffarian D. J Am Heart Assoc. February 2021. Available at:
<a href="https://www.nih.gov/news-events/nih-research-matters/most-covid-19-hospitalizations-due-four-conditions">https://www.nih.gov/news-events/nih-research-matters/most-covid-19-hospitalizations-due-four-conditions</a>.
\20\ Government Accountability Office, Chronic Health
Conditions--Federal Strategy Needed to Coordinate Diet-Related
Efforts. August 17, 2021. Available at: <a href="https://www.gao.gov/products/gao-21-593">https://www.gao.gov/products/gao-21-593</a>.
\21\ Centers for Disease Control and Prevention, Child Nutrition
Facts. Available at: <a href="https://www.cdc.gov/healthyschools/nutrition/facts.htm">https://www.cdc.gov/healthyschools/nutrition/facts.htm</a>.
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Research also shows that chronic health conditions can be more
common or severe for some racial and ethnic groups. For example, from
2013 to 2016, total age-adjusted diabetes was higher among Hispanic (18
percent) and non-Hispanic Black (17 percent) adults compared to non-
Hispanic White (10 percent) adults. Further, from 2017 to 2018,
American Indian and Alaska Native adults had the highest age-adjusted
prevalence rates of diagnosed diabetes by race/ethnicity.\22\ While
many complex factors drive health disparities, increasing access to
healthy foods is an important part of the solution. USDA research
suggests that Black and Hispanic children participate in the school
meal programs at higher rates than White children,\23\ meaning that the
school meal nutrition standards are an important tool in addressing
health disparities and supporting racial equity. This makes it all the
more important that USDA, in partnership with State agencies, schools,
and other stakeholders, raises the bar on meal quality for children.
School nutrition professionals have demonstrated their commitment to
serving our children throughout the pandemic, and USDA applauds their
efforts. As we collectively respond to and recover from COVID-19, it is
important to provide children with the most nutritious food possible.
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\22\ Centers for Disease Control and Prevention, CDC's Racial
and Ethnic Approaches to Community Health Program. Available at:
<a href="https://www.cdc.gov/chronicdisease/resources/publications/factsheets/reach.htm">https://www.cdc.gov/chronicdisease/resources/publications/factsheets/reach.htm</a>.
\23\ Overall, 70 percent of Hispanic and non-Hispanic Black
students participated in the NSLP on the target day, compared with
about half of non-Hispanic white students. See: U.S. Department of
Agriculture, Food and Nutrition Service, Office of Policy Support,
School Nutrition and Meal Cost Study, Final Report Volume 4: Student
Participation, Satisfaction, Plate Waste, and Dietary Intakes, by
Mary Kay Fox, Elizabeth Gearan, Charlotte Cabili, Dallas Dotter,
Katherine Niland, Liana Washburn, Nora Paxton, Lauren Olsho, Lindsay
LeClair, and Vinh Tran. Project Officer: John Endahl. Alexandria,
VA: April 2019. Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume4.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume4.pdf</a>. (OMB Control Number
0584-0596, expiration date 07/31/2017.)
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USDA is committed to working with its partners at all levels to
achieve this shared goal. However, as acknowledged in the proposed
rule, the menu planning challenges experienced by some schools, which
have become significantly more difficult during the ongoing global
pandemic and supply chain disruptions, necessitates a balance between
nutrition science, practical application of requirements, and the need
to ensure that children receive school meals they will eat.
Accordingly, this final rule establishes transitional standards that
apply only to the milk, whole grains, and sodium requirements.

[[Page 6988]]

Further, after considering public comments, in this final rule, USDA
has modified the whole grains and sodium provisions to provide measured
improvements in these areas during this transition period, as USDA
develops longer-term standards that are achievable and aligned with the
Dietary Guidelines. The other components of the 2012 regulations will
remain in place.
As described in the next section, USDA will build on this final
rule with a new rulemaking that comprehensively incorporates the
updated Dietary Guidelines and nutrition science. The Dietary
Guidelines provide science-based recommendations on what to eat and
drink to promote health, reduce risk of chronic disease, and meet
nutrient needs. The goals of the Dietary Guidelines, 2020-2025 include
a healthy dietary pattern that consists of nutrient-dense forms of
foods and beverages across all food groups, in recommended amounts, and
within calorie limits. They note the core elements that make up a
healthy dietary pattern include vegetables and fruits of all types,
grains, dairy, protein foods, and oils. The guidelines also recommend
limiting foods and beverages that are higher in added sugars, saturated
fat, and sodium. Stakeholders have emphasized the importance of
aligning school meal nutrition standards with the Dietary Guidelines,
as well as the importance of supporting schools in meeting stronger
standards.\24\ USDA is committed to its statutory obligation to develop
school meal nutrition standards that are consistent with the goals of
the latest Dietary Guidelines, and is committed to working toward this
effort immediately following this rule.
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\24\ USDA-FNS Listening Session with Nutrition Advocacy Groups,
June 29, 2021. Available at: <a href="https://www.regulations.gov/docket/FNS-2020-0038/document">https://www.regulations.gov/docket/FNS-2020-0038/document</a>.
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Multi-Stage Approach to Nutrition Standards

USDA's long-term goal is to establish regulations that align school
meal nutrition standards with the Dietary Guidelines, 2020-2025 and
support the successful provision of appealing and nutritious meals to
millions of students each day. However, in response to the proposed
rule, USDA received comments from a variety of stakeholders, including
State agencies, advocacy and industry groups, and school nutrition
professionals, noting the unprecedented disruptions that schools have
faced over the last several years, particularly due to the COVID-19
pandemic. For example, public comments from two State agencies
expressed support for a transitional approach to the sodium standards,
noting that it would be challenging for schools to move directly to
Target 2 immediately following the pandemic-related flexibilities. A
school nutrition professional respondent agreed, arguing that requiring
schools to comply with the 2012 standards following administrative
flexibilities and COVID-19 operations is unreasonable; this respondent
also hoped that future regulations could work towards continuing to
improve the nutritional value of school meals. A respondent
representing large school districts pointed out that due to COVID-19,
school meal programs are in ``operational and financial crisis,'' and
asserted that it is likely to take years for school meal programs to
recover and achieve program sustainability. In light of these comments
and experience administering the school meal programs during the
pandemic, USDA recognizes that updating the standards to reflect the
latest dietary recommendations will require thoughtfully addressing the
challenges stakeholders face as a result of the public health emergency
and the subsequent supply chain and meal service disruptions, as well
as the impacts of the multiple delays in implementing specific elements
of the milk, whole grains, and sodium standards prior to the pandemic.
Therefore, USDA is taking a two-stage approach to updating the
school meal nutrition standards. This final rule, which will establish
transitional standards for milk, whole grains, and sodium, is the first
stage. This final rule is intended for two school years only: SY 2022-
2023 and SY 2023-2024.\25\ These transitional standards will balance
the needs of schools as they recover from the challenges noted above,
with measured steps towards improving nutritional quality.
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\25\ USDA fully expects to have new standards in place for SY
2024-2025 and beyond. However, in case of an unanticipated delay,
the standards set by this rule will remain legally effective until
subsequent standards are promulgated.
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This transitional approach will also allow industry additional time
to reformulate and develop products needed to meet stronger standards,
particularly products lower in sodium that students enjoy. As a food
industry respondent noted, consumer acceptability, and specifically
schoolchildren's acceptance, is critical to sodium reduction efforts.
Other food industry respondents emphasized the need to maintain student
acceptance when reformulating products, and highlighted some specific
challenges with maintaining palatability and food safety when reducing
sodium. A June 2019 USDA study titled Successful Approach to Reducing
Sodium in School Meals, which was referenced in the proposed rule and
in public comments, identified several barriers to meeting Sodium
Target 2 and the Final Sodium Target, including a low-level of demand
for these products outside of the school system, the costs and time
involved in reformulating existing products, limited capacity among
schools to achieve the targets, and challenges with replacing sodium in
some foods given its functionality.\26\ More recently, a 2021 survey of
school nutrition directors found that 62 percent of respondents
considered product or ingredient availability to be a significant
challenge in working towards meeting Sodium Target 2 limits, while
another 33 percent considered product or ingredient availability to be
a moderate challenge. Only 5 percent did not consider product or
ingredient availability to be a challenge in meeting Sodium Target 2
limits.\27\ These concerns were also raised in in public comments,
where some respondents noted how the pandemic has exacerbated issues
with product availability. For example, respondents were unsure about
industry's ability to meet demand for lower sodium products, due to
supply chain and other challenges, and expressed concern about how
product shortages and cost constraints could impact schools.
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\26\ Successful Approaches to Reduce Sodium in School Meals.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf</a>.
\27\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: <a href="https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf">https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf</a>.
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In the second stage, USDA intends to issue a proposed rule in fall
2022 which will address school meal nutrition standards for SY 2024-
2025 and beyond. The new rulemaking will advance permanent standards
that further demonstrate USDA's commitment to nutritious school meals.
It will thoughtfully consider the areas addressed through this final
rule and ensure that the long-term standards are consistent with the
goals of the Dietary Guidelines, 2020-2025 and nutrition science, as
required by the National School Lunch Act. The new rulemaking will
incorporate meaningful stakeholder input, and will meet the nutritional
needs of America's schoolchildren. USDA intends for the new rule to be

[[Page 6989]]

finalized in summer 2023, well in advance of procurement cycles for SY
2024-2025. USDA invites comments on the milk, whole grain, and sodium
standards discussed in this final rule. USDA also welcomes comments on
all other aspects of the meal pattern; these comments will help inform
USDA's work to permanently update the school meal nutrition standards
through the new rulemaking. USDA encourages the public to provide
comments with the recommendations of the Dietary Guidelines in mind. As
noted, the public will also submit comments on the proposed rule USDA
intends to publish in fall 2022.

II. 2020 Proposed Rule Comment Summary

This final rule follows the proposed rule Restoration of Milk,
Whole Grains, and Sodium Flexibilities (85 FR 75241, November 25,
2020). As noted, this final rule is an important step in USDA's longer-
term effort to update the school nutrition requirements. With this
final rule, USDA is making meaningful, achievable improvements in the
nutritional quality of school meals for the short-term. Following this
rule, USDA will engage in a longer-term effort to further strengthen
the school meal pattern regulations, consistent with the goals of the
Dietary Guidelines and nutrition science.
USDA appreciates public interest in the proposed rule. During the
30-day comment period (November 25, 2020-December 28, 2020), USDA
received a total of 7,493 comments, including 3 non-germane or
duplicate comments. Of the total, 7,041 comments were form letter
copies from five form letter campaigns. USDA received 449 unique
submissions, including 101 unique submissions that provided substantive
comments on issues specific to the rule, including the milk, whole
grain, and sodium standards.
Approximately 2,500 of the comments addressed the length of the
comment period and requested an extension of the 30-day public comment
period. The comment period was not extended; however, USDA carefully
considered the comments received on the proposed rule, the Dietary
Guidelines, 2020-2025, and current challenges stemming from the
pandemic. Further, as explained, this rule implements transitional
standards; USDA will build upon this rule by issuing another notice-
and-comment rulemaking to address standards for SY 2024-2025 and
beyond.
Several respondents noted the impact of COVID-19 on the school meal
programs. One respondent stated that the COVID-19 pandemic resulted in
budget readjustments, food and supply shortages, and staffing
emergencies for school meal programs. A State agency emphasized that
schools may need additional time to transition back to providing meals
that meet the 2012 standards, and noted that it seemed appropriate to
temporarily extend the implementation of certain requirements, like
sodium reductions, given the public health emergency. Several other
respondents argued that USDA should not use the pandemic to make
permanent changes to nutrition standards. Instead, they argued that
USDA should issue temporary waivers, as needed, to respond to pandemic-
related challenges.
In addition to specific comments about the milk, whole grains, and
sodium standards, which are outlined within the section-by-section
analysis of this preamble, respondents provided general feedback on the
proposed rule. Proponents argued that the proposed rule would provide
more menu planning options for schools, enhancing their ability to
offer healthy and appealing meals. They stated the proposed changes
would lead to increased meal consumption and better health outcomes for
children. Proponents argued that the changes represent a permanent
solution to operational challenges, rather than temporary rules and
annual waivers. Some proponents stated that the proposed changes would
provide a more readily available supply of food products. A
professional association asserted that the changes would preserve
important nutrition guidelines, including limits on calories and fat.
Several proponents stated that the proposed changes would not prevent
school districts from having stricter nutrition guidelines, would not
remove fruit and vegetable requirements, and still would encourage
whole grains and lower sodium.
Opponents argued that the proposed changes are not needed because
most schools are in compliance with the meal pattern requirements, and
that the changes could restrain schools' progress in increasing whole
grain consumption and reducing sodium intake. They argued that students
eventually become accustomed to whole grain foods and foods with less
sodium. Several opponents stated that the proposed changes are not in
the best interest of children's health; citing the 2019 School
Nutrition and Meal Cost Study, they suggested that nutritious school
meals lead to improved health outcomes. Other opponents asserted that
healthy school meals improve academic performance. Many opponents cited
USDA research that found that the 2012 rule did not result in increased
food waste. Some opponents stated that school meals should have high
nutrition standards because they can be a source of more than 50
percent of a child's daily caloric intake. Multiple opponents suggested
that the proposed rule would widen disparities in access to healthy
meals for children of color, who are disproportionately impacted by
food insecurity and diet-related chronic conditions, such as diabetes
and hypertension. Several opponents argued that the 2012 meal pattern
requirements promote child nutrition, are reasonable and supported by
the science, and are effective at improving the nutritional quality of
school meals. Many opponents stressed the importance of helping
children develop positive dietary habits for life.
The following table shows tallies of the general comments received
in support of and against the proposed changes. Tables outlining
specific comments regarding the milk, whole grains, and sodium
standards are included in the section-by-section analysis.

General Feedback on Proposed Milk, Whole Grain-Rich, and Sodium Standards
----------------------------------------------------------------------------------------------------------------
Count of total
comments Percent of all Count of Percent of all
Themes received comments unique unique
(including form received comments comments
letters) (7,493) received received (449)
----------------------------------------------------------------------------------------------------------------
General Support
----------------------------------------------------------------------------------------------------------------
Positive health impacts for children........... 36 0.5 36 8.0
Increase meal consumption and decrease food 128 1.7 124 27.6
waste.........................................

[[Page 6990]]

Relieve industry of meal pattern compliance 15 0.2 15 3.3
challenges (such as product development)......
Reduce compliance burden for Program operators. 42 0.6 42 9.1
Other general support.......................... 31 0.4 31 6.9
----------------------------------------------------------------------------------------------------------------
General Opposition
----------------------------------------------------------------------------------------------------------------
Negative health impacts for children........... 2,553 34.1 85 18.9
Negative impacts on children's ability to 4,609 61.5 53 11.8
access healthy meals..........................
Changes are not needed (such as widespread 21 0.3 21 4.7
compliance with existing standards)...........
Inconsistent with Dietary Guidelines........... 2,506 33.4 38 8.5
Other general opposition....................... 16 0.2 16 3.6
----------------------------------------------------------------------------------------------------------------

USDA worked in collaboration with a data analysis company to code
and analyze the public comments using a commercial web-based software
product and obtained data showing support for or opposition to each
proposed change. The Summary of Public Comments report is available
under the Supporting Documentation tab in docket FNS-2020-0038. All
comments are posted online at <a href="http://www.regulations.gov">www.regulations.gov</a>. See docket FNS-2020-
0038, Restoration of Milk, Whole Grains, and Sodium Flexibilities.

III. Transitional Standards

USDA recognizes the importance of promoting strong nutrition
standards, while also providing necessary support to schools as they
respond to and recover from the public health and economic crisis. The
challenges created by COVID-19 and supply chain constraints, raised by
public comments, require a near-term response from USDA, which is
achieved through this final rule. Although the proposed rule would have
implemented permanent changes to the school meal standards, USDA agrees
that making permanent changes in response to temporary circumstances
created by COVID-19 is not a viable long-term solution. Following
publication of this rule, USDA intends to work towards even stronger
nutritional standards for reasons described further below, namely more
positive health outcomes for children. Therefore, USDA will engage in
another full notice-and-comment rulemaking in the near future which
will consider, among other things, the current Dietary Guidelines.
However, until such rulemaking is accomplished, schools need
transitional standards that improve the nutritional content of school
meals in an achievable manner for the short-term.
USDA appreciates comments on the proposed rule that emphasized the
importance of strong nutrition standards and the value of the 2012
requirements. USDA agrees that improving the school meal pattern
standards is critical for ensuring nutrition security, which considers
not only food access, but specifically, access to nutritious food that
promotes health and wellbeing. As noted in the proposed rule, many
schools have made significant progress towards achieving the 2012
standards; for example, the proposed rule noted that 70 percent of the
weekly menus offered at least 80 percent of the grain items as whole
grain-rich.\28\ However, USDA also must consider comments emphasizing
the widespread and ongoing impact of COVID-19 on schools.
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\28\ See footnote 41 of Restoration of Milk, Whole Grains, and
Sodium Flexibilities, November 25, 2020. Available at: <a href="https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252">https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252</a>.
See also: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement and Percentage Below Requirement'' in Tables C.14 and
E.14 of School Nutrition and Meal Cost Study, Final Report Volume 2:
Nutritional Characteristics of School Meals by Elizabeth Gearan,
Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana Washburn,
Patricia Connor, Lauren Olsho, and Tara Wommak. Project Officer:
John Endahl. Alexandria, VA: April 2019. Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf</a>. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
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The pandemic has impacted the entire Nation, and schools faced
challenges adjusting to widespread closures, online and hybrid
learning, and supply chain issues that affected the school meal service
and the broader school environment. In public comments, respondents
noted that the challenges facing schools are ongoing, and some schools
are not prepared to fully meet the milk, whole grains, and sodium
requirements from the 2012 rule. While USDA does not have current
comprehensive data on schools that would not be prepared to fully meet
these three standards in the absence of this final rule, USDA does have
data on schools that faced challenges with initial implementation of
the milk, whole grains, and sodium standards after the 2012 rule took
effect. According to a study conducted in SY 2014-2015, the most recent
USDA data available, only 27 percent of NSLP menus were offering 100
percent of grains as whole grain-rich.\29\ The same study found that
about 72 percent of weekly lunch menus met the Sodium Target 1
requirement; however, this varied by type of school. For example, about
56 percent of weekly lunch menus in rural schools met Sodium Target 1,
compared to 84 percent of urban schools.\30\ Since then, there have
been

[[Page 6991]]

several years of Congressional and administrative interventions,
followed by two years of meal pattern waivers authorized by Congress in
response to the public health emergency. As a result of these
interventions, the 2012 whole grain-rich requirement and Sodium Target
2 have never been fully implemented; many operators would need to
significantly adapt to return fully to the 2012 nutrition standards.
Moreover, the 2012 milk requirements have not been fully implemented in
more than five years. After careful consideration of the proposed rule
and public comments, USDA believes that it is prudent to provide
transitional standards in the near-term while further revisions to the
meal pattern are considered and established through a new notice-and-
comment rulemaking.
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\29\ See: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement'' in Table C.14 of School Nutrition and Meal Cost Study,
Final Report Volume 2: Nutritional Characteristics of School Meals
by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter,
Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April 2019. Available
at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf</a>. (OMB Control Number 0584-0596, expiration
date 07/31/2017.) Note: In SY 2014-2015, all grains were supposed to
be whole grain-rich. However, State agencies had the option of
granting exemptions to this requirement if an SFA demonstrated
hardship in procuring compliant whole grain-rich products that were
acceptable to students.
\30\ See: ``Sodium: Percentage Meeting Requirement'' in Tables
C.14 and C.16 of School Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School Meals by Elizabeth
Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana
Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. Project
Officer: John Endahl. Alexandria, VA: April 2019. Available at:
<a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf</a>. (OMB Control Number 0584-0596, expiration date
07/31/2017.)
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To ensure children were safely fed during the pandemic, schools
served meals in ways they never had before, such as providing curbside
meal service and delivering meals to children's homes. As noted in many
comments, the pandemic has caused huge disruptions to the meal service,
and school nutrition programs are stretched thin financially and
limited in staff; respondents argued that children and staff both will
need time to return to standard operations. They also noted that the
pandemic has created temporary challenges, making it difficult for
manufacturers and distributors to meet the demand for specific
products, such as individually wrapped foods that many schools have
relied on to provide a safe meal service during COVID-19. Vendors have
unexpectedly canceled contracts because they could not fulfill product
orders, or products have been re-directed to other food service
sectors. Schools have reported difficulty obtaining responses to food
bid solicitations and have experienced unpredictable pricing,
inadequate substitutions, and food outages. While USDA expects that
these challenges will ultimately be transitory, USDA agrees that the
school marketplace will require time to recover.
Schools have also reported staff shortages and hiring
challenges,\31\ which have made it more difficult to safely prepare and
serve meals that are compliant with certain meal pattern requirements.
For example, staffing issues may make it harder to do scratch cooking.
Altering recipes (59 percent) and increasing scratch cooking (28
percent) were two practices that SFAs planned to implement to meet
sodium requirements, according to a USDA survey published in June 2021.
Many SFAs (44 percent) also reported altering recipes as a practice to
meet the whole grain-rich standard.\32\ Current staffing and hiring
issues may make it difficult to implement these strategies to meet meal
pattern requirements in the near-term.
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\31\ A 2021 survey of school nutrition directors found that
about 46 percent of survey respondents had reduced staffing, through
reduction in hours, layoffs, or deferred hiring, since March 2020.
School Nutrition Association. Back to School 2021 Report: A Summary
of Survey Results. Available at: <a href="https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf">https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf</a>.
\32\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf</a>.
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Throughout the pandemic, USDA's priorities shifted to focusing on
ensuring children continued to be fed while schools were closed and
modifying the programs to be responsive to changing school
environments, such as social distancing needs, staffing shortages, and
supply chain disruptions, when schools reopened. This has primarily
been accomplished through a series of nationwide waivers. The latest
set of nationwide waivers, which includes the targeted school meal
pattern waiver for SY 2021-2022, will expire on June 30, 2022.\33\
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\33\ USDA issued a series of nationwide waivers to allow non-
congregate meal service, flexible meal times, parent or guardian
meal pick-up, and other flexibilities. These waivers are available
at: <a href="https://www.fns.usda.gov/fns-disaster-assistance/fns-responds-covid-19/child-nutrition-covid-19-waivers">https://www.fns.usda.gov/fns-disaster-assistance/fns-responds-covid-19/child-nutrition-covid-19-waivers</a>.
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Finalizing these transitional standards is also critical because
according to public comments received, if the 2012 rule requirements
apply beginning in SY 2022-2023, USDA has heard that the milk, whole
grain, and sodium requirements would be extraordinarily difficult for
all schools to implement successfully. As noted, previous
implementation of these requirements was halted for years prior to the
pandemic, and particularly in the case of sodium, go well beyond what
is achievable given the current range of products available in the
marketplace. In addition, in the near-term, schools are facing
difficulties in procuring food and supplies due to manufacturer
changes, canceled vendor or distributor contracts, product
unavailability, unexpected and lower quality product substitutions,
increased product pricing, and supply chain disruptions; it is not
clear how long it will take to fully recover from these disruptions.
This final rule balances the need to allow adequate time to recover
from these disruptions and prior implementation challenges, with the
need to begin transitioning to stronger nutrition standards. This
transitional standards approach will provide schools with the ability
to make menu adjustments, procurement revisions, and personnel training
necessary to transition back to traditional meal service after COVID-19
operations.
Therefore, after thoughtful deliberation of the current
circumstances, review of comments received in response to the proposed
rule as well as during stakeholder meetings, and consideration of the
current Dietary Guidelines, USDA believes that school nutrition
operators need the transitional standards outlined in this rule in the
near-term, as the Department works diligently to further strengthen the
school meal pattern requirements. The following sections explain the
transitional standards made available through this final rule, which
are effective until long-term standards are promulgated.

A. Milk Standards

As established by the 2012 final rule, current regulations at 7 CFR
210.10(d)(1)(i) and 220.8(d) permit only fat-free milk to be flavored
in the NSLP and SBP; low-fat milk (1 percent fat) must be unflavored.
However, for SY 2017-2018, Congress directed USDA to allow State
agencies to grant exemptions allowing flavored, low-fat milk through
the NSLP and SBP and as a competitive food available for sale, provided
that schools demonstrated hardship.\34\ For SY 2018-2019 and SY 2019-
2020, the 2017 interim final rule and 2018 final rule allowed NSLP,
SMP, SBP, and CACFP operators the option to serve flavored, low-fat
milk as part of the reimbursable meal, and for schools, as a
competitive beverage for sale on campus during the school day.
Moreover, during the pandemic, USDA permitted schools to operate SFSP
at the end of SY 2019-2020 and in SY 2020-2021; the SFSP does not
include any limitations on milkfat or flavoring. For SY 2021-2022, USDA
provided nationwide meal pattern waivers, which allowed SFAs to request
targeted and justified waivers to serve flavored, low-fat milk.

[[Page 6992]]

Additionally, Congress has directed USDA that it cannot restrict the
offering of flavored, low-fat milk through Section 747 of Division A of
the Consolidated Appropriations Act, 2017 (Pub. L. 115-31), and Section
789 of Division A of the Consolidated Appropriations Act, 2021 (Pub. L.
116-260).
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\34\ Congress instructed the Secretary to provide State agencies
this flexibility through the Consolidated Appropriations Act, 2017
(Pub. L. 115-31). Schools were required to demonstrate hardship by
documenting a reduction in student milk consumption or increase in
milk waste.
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2020 Proposed Rule and Public Comments
In the 2020 proposed rule, USDA proposed to continue to allow
schools the option to offer flavored, low-fat milk in reimbursable
school meals. As described previously, this option has been available
to schools in some form since SY 2017-2018. The proposed rule would
have maintained the requirement that unflavored milk be offered at each
meal service. For consistency, the flavored, low-fat milk option would
have been extended to competitive beverages for sale on campus during
the school day and would apply in the SMP and CACFP for participants
ages 6 and older. USDA also proposed a technical correction to clarify
in CACFP regulations that lactose-free and reduced-lactose fluid milk
meet the CACFP meal pattern requirements for fluid milk. In response to
the 2020 proposed rule, USDA received 4,685 comments regarding the milk
standard. The following table shows tallies of the total and unique
comments received in response to the proposed milk standard:

2020 Proposed Milk Standard
----------------------------------------------------------------------------------------------------------------
Total milk
comments Percent of Unique milk Percent of
Respondent position (including form total milk comments unique milk
letters) comments comments
----------------------------------------------------------------------------------------------------------------
Support........................................ 91 2 91 69
Mixed.......................................... 8 <1 8 6
Oppose......................................... 4,585 97 33 25
----------------------------------------------------------------
Total...................................... 4,684 100 132 100
----------------------------------------------------------------------------------------------------------------

Comments in Support
A total of 91 comments supported the proposed milk standard.
Proponents generally expressed concern related to the decline in
children's milk consumption. They argued that allowing flavored, low-
fat milk would provide schools more menu planning options, promote milk
consumption, and lead to better health outcomes. State agency
proponents argued that allowing additional variety in student milk
choices may increase overall milk consumption. Proponents stated that
increased milk consumption could result in greater intake of essential
nutrients, such as vitamins A and D, magnesium, potassium, and calcium.
A national nutrition advocacy group noted that flavored milk is an
effective tool in encouraging milk consumption by school-aged children,
and that school-aged children who drink flavored milk do not consume
more added sugars, fat, or calories compared to non-milk drinkers.
Proponents also stated that the minor increase in calories from
flavored, low-fat milk could be offset with appropriate menu planning.
They noted that the net increase in calories between fat-free and low-
fat, flavored milk is small, due to progress made by dairy processors
in reducing the calories in flavored milk. A national industry group
noted that because flavored, low-fat milk is less likely to be wasted,
more milk and more essential nutrients are consumed when flavored, low-
fat milk is offered.
A national industry group also expressed support for the proposed
change to clarify that lactose-free and reduced-lactose milk is an
acceptable option in the CACFP. They noted that milk with lower lactose
provides the same important nutrients as conventional milk and is an
important offering for individuals with lactose intolerance. Lactose-
free and reduced-lactose milk are also supported by the Dietary
Guidelines.
Comments in Opposition
A total of 4,585 comments opposed the proposed milk standard.
Opponents argued that allowing flavored, low-fat milk contradicts
scientific literature regarding the known relationships between diet
quality, overweight and obesity, cardiovascular disease, cancer, dental
caries, and other negative health outcomes. One opponent cited a recent
study that stated, ``Excess added sugars, particularly in the form of
sugar sweetened beverages, is a leading cause of tooth decay in U.S.
children.'' Opponents also argued that the added calories from low-fat
chocolate milk could increase the already alarming childhood obesity
rates, and that research indicates there is very little room in the
diet for calories from added sugars, providing additional reason not to
allow flavored, low-fat milk. One opponent urged USDA to require
schools to offer unflavored milk in the NSLP afterschool snack service,
SMP, and CACFP. Some opponents stated that the proposed change is
inconsistent with the Dietary Guidelines.
A State agency asserted that the proposed milk standard is not
needed due to widespread acceptance of fat-free flavored milk and noted
that with high levels of student acceptance for fat-free flavored milk,
this change is unlikely to impact participation. Another opponent noted
that virtually all SFAs have employed strategies to encourage milk
consumption and encouraged USDA to address any remaining challenges
through training and technical assistance instead of the proposed
change.
Mixed Response
Eight respondents expressed conditional support or opposition or
offered suggestions for improving the proposed milk standard. For
example, an individual respondent advised USDA to establish limits for
sugar in flavored milk. Similarly, a healthcare professional noted that
sweetened beverages and added sugars are areas of concern for child
nutrition and recommended that USDA adopt nutrition standards
consistent with those findings. Several opponents recommended that if
USDA allows flavored, low-fat milk, a calorie limit of no more than 130
calories per 8 ounce serving should be established, consistent with the
Robert Wood Johnson's Healthy Eating Research Healthier Beverage
Guidelines. A number of respondents also suggested that USDA allow
whole milk for health reasons.

[[Page 6993]]

Transitional Standard and Considerations for Future Rulemaking
This final rule will provide NSLP and SBP operators with the
transitional option to offer flavored, low-fat (1 percent fat) milk in
reimbursable school meals and require that unflavored milk be offered
at each meal service. For consistency, the flavored, low-fat milk
option will be extended to competitive beverages for sale on the school
campus during the school day and will also apply in the SMP and CACFP
for participants ages 6 and older. USDA recognizes that regulatory
consistency across programs, a long-time goal at USDA, facilitates
program administration and operation at the State and local levels,
fosters support, and meets stakeholder expectations.\35\
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\35\ The Office of Management and Budget's implementing
memorandum, M-11-10, for Executive Order 13563, ``Executive Order
13563, ``Improving Regulation and Regulatory Review'','' discusses
the importance of consistency for regulatory requirements. February
2, 2011. Available at <a href="https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-10.pdf">https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-10.pdf</a>.
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The final rule's adoption of the proposed milk standards balances
various factors, including the lack of full implementation of the 2012
rule milk standards in recent years and the current Dietary Guidelines.
Section 9(f)(1) of the National School Lunch Act, as amended, 42 U.S.C.
1758(f)(1), requires that school meals are consistent with the goals of
the latest Dietary Guidelines.\36\ Milk is a popular item among
children and is an important source of calcium, vitamin D, and
potassium--nutrients under consumed by the U.S. population.\37\
Flavored milk has received high palatability ratings from children \38\
and has been shown to encourage milk consumption among school-aged
children.\39\ Studies indicate that children drink more flavored milk
than unflavored milk, and that flavored milk served in the school meal
programs is wasted less than unflavored milk.\40\ USDA appreciates
concerns raised by comments regarding flavored milk, and as detailed
below, will consider them in greater detail in the subsequent
rulemaking. While USDA appreciates comments on whole milk, allowing
whole milk in the school meal programs would not align with
recommendations in the Dietary Guidelines, 2020-2025.
---------------------------------------------------------------------------

\36\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. 2020-2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available at: <a href="https://www.dietaryguidelines.gov/">https://www.dietaryguidelines.gov/</a>.
\37\ Cohen JFW, Richardson S, Rimm EB. Impact of the Updated
USDA School Meal Standards, Chef-Enhanced Meals, and the Removal of
Flavored Milk on School Meal Selection and Consumption. J Acad Nutr
Diet. May 29, 2019 May 29. Available at: <a href="https://pubmed.ncbi.nlm.nih.gov/31153957/">https://pubmed.ncbi.nlm.nih.gov/31153957/</a>.
\38\ Fayet-Moore F. (2016). Effect of flavored milk vs plain
milk on total milk intake and nutrient provision in children.
Nutrition Reviews; 74(1). Available at: <a href="https://academic.oup.com/nutritionreviews/article/74/1/1/1905542">https://academic.oup.com/nutritionreviews/article/74/1/1/1905542</a>.
\39\ Nutrition Standards for Foods in Schools: Leading the Way
Toward Healthier Youth (``IOM Report''), Institute of Medicine, page
58. Available at: <a href="http://www.nationalacademies.org/hmd/Reports/2007/Nutrition-Standards-for-Foods-in-Schools-Leading-the-Way-toward-Healthier-Youth.aspx">http://www.nationalacademies.org/hmd/Reports/2007/Nutrition-Standards-for-Foods-in-Schools-Leading-the-Way-toward-Healthier-Youth.aspx</a>. See also: Mary M. Murphy et al., Drinking
Flavored or Plain Milk is Positively Associated with Nutrient Intake
and Is Not Associated with Adverse Effects on Weight Status in U.S.
Children and Adolescents.
\40\ A USDA study found that the mean percentage of wasted milk
was highest for unflavored, fat-free and low-fat milks, and lowest
for flavored, fat-free and low-fat milk. Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume4.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume4.pdf</a>. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
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USDA is committed to ensuring that school meals provide children
with nutrient-dense foods that are consistent with the goals of the
Dietary Guidelines. Flavored milks (both fat-free and low-fat) contain
added sugars, and USDA will consider their contribution to the overall
amount of added sugars in school meals as it develops subsequent meal
pattern regulations to follow this final rule. The Dietary Guidelines,
2020-2025 recommend that intake of beverages high in added sugars be
limited, and that added sugars consist of no more than 10 percent of
total calories per day for children aged 2 years and older. Although
there are currently no added sugars limits in the school meal programs,
because the NSLP and SBP calorie limits apply to the meals offered on
average over the school week, SFAs that choose to offer flavored, low-
fat milk will need to plan menus carefully to ensure that they stay
within the required calorie limits. SFAs should consult with their
State agency as necessary to make proper menu adjustments.
Consistent with the proposed rule, this final rule also requires
that NSLP and SBP operators that choose to offer flavored milk must
also offer unflavored milk (fat-free or low-fat) at the same meal
service. This requirement ensures that milk variety in the NSLP and SBP
is not limited to flavored milk choices, and that the most nutrient-
dense form of milk is always available. USDA recognizes the importance
of having unflavored milk as a choice for students at each lunch and
breakfast service. The requirement to ensure that unflavored milk is
available on the school menu will not apply in the NSLP afterschool
snack service, the SMP, or the CACFP, consistent with existing
requirements; these programs do not have a requirement to offer a
variety of fluid milk as they are smaller in size and resources than
the school lunch and breakfast programs.\41\
---------------------------------------------------------------------------

\41\ Please note, while operators of NSLP afterschool snack,
SMP, and CACFP are not required to offer a variety of fluid milk to
all participants, operators of the Child Nutrition Programs are
required to provide meal modifications to ensure that participants
with disabilities have an equal opportunity to participate in and
benefit from the programs. This would include providing participants
with a substitute for milk, as needed, due to a disability. See:
Accommodating Disabilities in the School Meal Programs: Guidance and
Q&As, <a href="https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas">https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas</a> and Modifications to Accommodate
Disabilities in CACFP and SFSP, <a href="https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp">https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp</a>.
---------------------------------------------------------------------------

It is important to note that offering flavored milk (low-fat and/or
fat-free) is an option, not a requirement, and operators may choose not
to offer flavored milk. For example, the local school wellness policy
provides students, parents and guardians, and interested community
members the opportunity to influence the school nutrition environment
at large (see 7 CFR 210.31). Some individual schools and school
districts have opted to remove all flavored milk from school meal menus
via local wellness policies to reduce students' added sugars
consumption. Schools may also consider placing unflavored milk in
visible locations in the school cafeteria to encourage children to
select it instead of flavored milk.
This final rule also makes a technical correction in SMP and CACFP
regulations to clarify that lactose-free and reduced-lactose fluid milk
meet the SMP and CACFP requirements for fluid milk; no written request
or statement is required for a school, institution, or facility to
offer lactose-free or reduced-lactose fluid milk. This language aligns
with other Program regulations, which state that lactose-free and
reduced-lactose fluid milk may be served to meet the fluid milk
requirement (see 7 CFR 210.10(d)(1)(i) (NSLP) and 220.8(d) (SBP)).
Allowing lactose-free milk is consistent with the Dietary Guidelines.
It also helps to increase access to the nutritional benefits of milk
among populations that are more likely to experience lactose
intolerance.\42\ This

[[Page 6994]]

clarification builds greater consistency in Program regulations and is
expected to reduce confusion for SMP and CACFP operators, as well as
families.
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\42\ According to the National Institute of Diabetes and
Digestive and Kidney Diseases, in the United States, African
Americans, American Indians, Asian Americans, and Hispanics/Latinos
are more likely to have the symptoms of lactose intolerance. Lactose
intolerance is least common among people who are from, or whose
families are from, Europe. Definition & Facts for Lactose
Intolerance. Available at: <a href="https://www.niddk.nih.gov/health-information/digestive-diseases/lactose-intolerance/definition-facts">https://www.niddk.nih.gov/health-information/digestive-diseases/lactose-intolerance/definition-facts</a>.
---------------------------------------------------------------------------

Accordingly, this final rule amends 7 CFR 210.10(d)(1)(i);
210.11(m)(1)(ii), (m)(2)(ii) and (m)(3)(ii); 215.7a(a); 220.8(d);
226.20(a)(1)(iii); and 226.20(c)(1), (2), and (3), to allow NSLP and
SBP operators to offer flavored, low-fat milk as part of a reimbursable
meal and for sale as a competitive beverage, and allow flavored, low-
fat milk in the SMP and in the CACFP for participants ages 6 and older.
It also clarifies that lactose-free and reduced-lactose fluid milk meet
the SMP and CACFP requirements for fluid milk. USDA invites public
comments on the milk standards discussed in this final rule. These
public comments will help to inform USDA's future rulemaking.

B. Whole Grain-Rich Standards

As established by the 2012 final rule, current NSLP and SBP
regulations at 7 CFR 210.10(c)(2)(iv) and 220.8(c)(2)(iv) require all
grains offered in school meals to meet the USDA whole grain-rich
criteria. To meet USDA's whole grain-rich criteria, a product must
contain at least 50 percent whole grains, and the remaining grain
content of the product must be enriched. However, successive
legislative and administrative action beginning in 2012 prevented full
implementation of the whole grain-rich requirement. Prior to the
vacatur of the 2018 final rule, in SY 2019-2020, at least 50 percent of
the weekly grains offered in the NSLP and SBP were required to be whole
grain-rich.
The requirement to offer exclusively whole grain-rich products
proved challenging for some school districts. For example, while some
schools have successfully implemented the whole grain-rich requirement,
others have cited student acceptance, higher costs, and a lack of
available products as barriers to meeting the requirement.\43\ As
noted, in SY 2014-2015, only 27 percent of NSLP menus were offering 100
percent of grains as whole grain-rich.\44\ Due to a long history of
administrative and legislative actions allowing exemptions, this
requirement was never fully implemented nationwide. Seeking to assist
schools, USDA allowed enriched pasta exemptions for SY 2014-2015 and SY
2015-2016, and Congress expanded the pasta flexibility to include other
grain products. Through successive legislative action, Congress
directed USDA to allow State agencies to grant individual whole grain-
rich exemptions (Section 751 of the Consolidated and Further Continuing
Appropriations Act, 2015 (Pub. L. 113-235); and Section 733 of the
Consolidated Appropriations Act, 2016 (Pub. L. 114-113). In addition,
Section 747 of the Consolidated Appropriations Act, 2017 (Pub. L. 115-
31) (2017 Appropriations Act) provided flexibilities related to whole
grains for SY 2017-2018. More recently, Section 101(a)(1) of Division D
of the Continuing Appropriations Act, 2018 and Supplemental
Appropriations for Disaster Relief Requirements Act, 2017 (Pub. L. 115-
56), enacted September 8, 2017, extended the flexibilities provided by
Section 747 of the Consolidated Appropriations Act, 2017 through
December 8, 2017. The 2017 Appropriations Act provided authority for
whole grain-rich exemptions through the end of SY 2017-2018, and the
interim final rule (82 FR 56703, November 30, 2017) extended the
availability of exemptions through SY 2018-2019.
---------------------------------------------------------------------------

\43\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf</a>.
\44\ See: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement'' in Table C.14 of School Nutrition and Meal Cost Study,
Final Report Volume 2: Nutritional Characteristics of School Meals
by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter,
Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April 2019. Available
at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf</a>. (OMB Control Number 0584-0596, expiration
date 07/31/2017.) Note: In SY 2014-2015, the most recent school year
that USDA data is available, all grains were supposed to be whole
grain-rich. However, State agencies had the option of granting
exemptions to this requirement if an SFA demonstrated hardship in
procuring compliant whole grain-rich products that were acceptable
to students.
---------------------------------------------------------------------------

For SY 2017-2018, a total of 4,297 SFAs (about 23 percent of SFAs
operating the school meal programs) submitted whole grain-rich
exemption requests for specific products based on hardship, and nearly
all (4,124) received exemption approval from their State agency. In
addition, during the pandemic, USDA permitted schools to operate SFSP
at the end of SY 2019-2020 and in SY 2020-2021; the SFSP meal standards
do not include a whole grain-rich requirement. USDA also provided
nationwide meal pattern waivers through SY 2021-2022, which allowed
SFAs to request flexibility for the whole grain-rich requirements on a
case-by-case basis.
2020 Proposed Rule and Public Comments
In the 2020 proposed rule, USDA proposed to require that at least
half of the weekly grains offered in the NSLP and SBP meet the whole
grain-rich criteria specified in USDA guidance, and that the remaining
grain items offered must be enriched. In response to the 2020 proposed
rule, USDA received 4,710 comments regarding the whole grain-rich
standard. The following table shows tallies of the total and unique
comments received in response to the proposed whole grain-rich
standard:

2020 Proposed Whole Grain-Rich Standard
----------------------------------------------------------------------------------------------------------------
Total whole
grain-rich Percent of Unique whole Percent of
Respondent position comments total whole grain-rich unique whole
(including form grain-rich comments grain-rich
letters) comments comments
----------------------------------------------------------------------------------------------------------------
Support........................................ 112 2 108 70
Mixed.......................................... 6 <1 6 4
Oppose......................................... 4,592 97 40 26
----------------------------------------------------------------
Total...................................... 4,710 100 154 100
----------------------------------------------------------------------------------------------------------------

[[Page 6995]]

Comments in Support
There were 112 comments in support of the proposed whole grain-rich
standard. Several proponents reasoned that a reduction in the whole
grain-rich requirement was needed because many products (such as pasta,
bread, sushi rice, and tortillas), including some regional products
(such as grits and biscuits), are not acceptable to students in a whole
grain-rich form. A State agency agreed with the proposal, arguing that
it would provide the right balance of whole grain-rich and enriched
grain products. That State agency also affirmed the proposed standard
would allow SFAs to serve grain products that children would enjoy,
while still exposing children to more whole grain-rich products.
A food industry proponent suggested that whole, fortified, and
enriched grains provide shelf-stable and cost-efficient options; they
argued that all grains, including those that are refined but fortified
and enriched, are a reliable choice for schools. Another food industry
proponent agreed, asserting that a variety of grain choices, both whole
and enriched, have the potential to increase consumption of shortfall
nutrients identified by the Dietary Guidelines, particularly dietary
fiber, folate, and iron. Other proponents stated that more time is
necessary for the food industry and school food service professionals
to develop whole grain-rich products and recipes that students enjoy.
Several proponents asserted that whole grain versions of certain foods,
including tortillas, pizza crust, and pasta, suffer from quality issues
(for example, crumbly, dry, or poor consistency) that make them
difficult to serve in a school meal setting.
Some proponents noted that there are currently not enough options
for whole grain-rich products, and that whole grain-rich products are
not always available in the necessary quantities. One advocacy group
asserted that requiring all grain items on school menus to be whole
grain-rich is costly and unrealistic. Proponents suggested that
requiring only 50 percent of grains offered to be whole grain-rich
would ease procurement concerns in rural school districts, where they
suggested some whole grain-rich items are difficult to obtain.
Comments in Opposition
A total of 4,592 comments opposed the proposed whole grain-rich
standard. Some opponents voiced concern that the proposed change would
make it more difficult for schools to procure whole grain-rich
products, because there would be less incentive for the food industry
to develop compliant products. One advocacy group suggested that
without this incentive, fewer companies would choose to produce whole
grain-rich products, meaning that whole grain-rich products would be
less widely available and more expensive for schools that wish to serve
them.
Several policy advocacy groups, a professional association, and a
State agency asserted that most schools had met the stricter 100
percent whole grain-rich requirement--with some States not needing any
whole grain-rich waivers, some States requesting waivers for only one
product type (such as pasta), and other States not allowing waivers.
These opponents remarked that all schools should be able to meet the
100 percent whole grain-rich standard. A State agency opponent
maintained that schools in their State have continued to offer 100
percent whole grain-rich products, and they are seeing high rates of
student acceptance.
Several opponents argued that the proposed change is inconsistent
with the Dietary Guidelines and does not support children's health.
Many opponents noted that eating more whole grains is associated with
reduced risk of heart disease, stroke, colon cancer, and diabetes, and
provides more nutrients and fiber. Opponents also stated that USDA's
2019 School Nutrition and Meal Cost Study found one of the factors most
highly correlated with improved school lunch nutritional quality was
having met the 100 percent whole grain-rich requirement.
A State agency opponent described their experience implementing the
100 percent whole grain-rich requirement, asserting that despite
initial challenges that involved additional training, implementation of
the standard was ultimately successful, and the State now sees very
high rates of compliance. Another State agency opponent argued that the
proposed standard would be more difficult for SFAs to track and for the
State agency to monitor, compared to the 2012 whole grain-rich
requirement, and would therefore create additional administrative
burden for both SFAs and State agencies.
Mixed Response
Six respondents expressed conditional support or opposition, or
offered suggestions for improving the proposed whole grain-rich
standard. For example, one State agency opposed the proposed change,
but suggested USDA allow exceptions for quality and availability
issues. This State agency also emphasized the importance of ensuring
USDA standards expand access to and consumption of whole grain-rich
foods.
Some respondents offered an approach in between the proposed
standard and the 2012 standard. For example, a nutritionist noted that
most schools in their State already exceed the 50 percent threshold and
recommended an 80 percent whole grain-rich requirement. They argued
that this approach would be consistent with the science of the Dietary
Guidelines, while allowing schools to serve certain products, such as
pasta and biscuits, in a form students find more appealing. Similarly,
two respondents expressed support for a 75 percent threshold,
maintaining that it would appropriately balance the goals of the
Dietary Guidelines with the importance of meeting student preferences
and encouraging student participation. A State agency also supported a
75 percent threshold, arguing that the proposed 50 percent threshold
would cause the nutritional integrity of the meals to suffer. Another
State agency recommended USDA allow schools to serve one item per week
that is not whole grain-rich. One respondent noted the benefits of
whole grains but suggested an in between approach where USDA require
half of grains to be whole grain, and one quarter to be enriched
grains.
One food industry respondent opposed the proposed change, and
instead expressed support for returning to the 2012 standard. However,
they recommended delaying implementation of the 100 percent whole
grain-rich standard to SY 2024-2025. The food industry respondent
argued that delaying implementation would allow SFAs adequate time to
develop menus and recipes with whole grain-rich foods and would enable
industry to continue to invest in the development and manufacturing of
whole grain-rich foods that are acceptable to children. This respondent
recommended delaying implementation to SY 2024-2025 in recognition of
the impact of COVID-19 on schools.
Transitional Standard and Considerations for Future Rulemaking
As recommended by comments, this rulemaking adopts a balanced
approach that recognizes the need for transitional meal pattern
improvements in the short-term. As noted by a State agency and other
respondents, setting a standard between the proposed rule and the 2012
rule allows schools to serve foods their students enjoy and find
palatable, which could increase student satisfaction and participation,
while

[[Page 6996]]

helping to advance the nutritional integrity of school meals.
Respondents noted that schools have successfully incorporated many
whole grain-rich items on their menus, and manufacturers have improved
many whole grain-rich products, but currently, there are still some
products that students have trouble accepting.
USDA agrees with comments suggesting a transitional standard in
between the proposed rule and 2012 rule is appropriate. In addition,
after considering comments, USDA agrees that increasing the whole
grain-rich standard beyond what was proposed is achievable and
appropriate and is an important step in advancing nutrition security. A
standard between 50 and 100 percent will balance the importance of
strengthening the whole grain-rich requirements with the difficulties
currently facing some schools, such as supply chain disruptions,
financial challenges, and staffing limitations related to COVID-19.
This rule will serve as a middle-ground bridge until the notice-and-
comment rulemaking for SY 2024-2025 and beyond is complete.
In determining what the transitional standard should be, USDA
looked for an achievable standard that still moved meaningfully
forward. As mentioned, comments suggested a variety of middle-ground
thresholds, including 80 percent. The proposed rule also noted that,
according to a study conducted in SY 2014-2015, the most recent USDA
data available, 70 percent of weekly school menus offered at least 80
percent of the grain items as whole grain-rich.\45\ Therefore, USDA
finds that requiring at least 80 percent of the weekly grains offered
in the NSLP and SBP to be whole grain-rich is an appropriate
transitional standard. The remaining grain items offered must be
enriched. Under this whole grain-rich requirement, SFAs are expected to
procure and incorporate a significant amount of whole grain-rich
product into their NSLP and SBP menus, but will have the ability to
serve enriched grains when whole grain-rich products are not available
or when certain products are not acceptable to students in whole grain-
rich form.
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\45\ See footnote 41 of Restoration of Milk, Whole Grains, and
Sodium Flexibilities, November 25, 2020. Available at: <a href="https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252">https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252</a>.
See also: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement and Percentage Below Requirement'' in Tables C.14 and
E.14 of School Nutrition and Meal Cost Study, Final Report Volume 2:
Nutritional Characteristics of School Meals by Elizabeth Gearan,
Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana Washburn,
Patricia Connor, Lauren Olsho, and Tara Wommak. Project Officer:
John Endahl. Alexandria, VA: April 2019. Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf</a>. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
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The current Dietary Guidelines recommend that at least half of
total grains consumed should be whole grains. The Dietary Guidelines
also note that while school-age children, on average, meet the
recommended intake of total grains, they do not meet the recommendation
to make half of their grains whole grains. With this final rule, USDA
is continuing to advance the important progress made in improving
school nutrition standards. Compared to the nutrition requirements that
were in effect prior to COVID-19, this transitional rule provides
meaningful, achievable improvements in the whole grain-rich standard,
while continuing to be responsive to the current needs of schools. The
80 percent requirement is consistent with and based on the Dietary
Guidelines, 2020-2025 recommendation regarding consumption of more
whole grains and is intended to be a transitional threshold as USDA
works to enhance the meal pattern standards in a way that reflects the
latest nutrition science.\46\
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\46\ As noted by the court in CSPI, the statutory language
requiring that meals be ``consistent with'' Dietary Guidelines and
that regulatory meal pattern standards be ``based on'' the Dietary
Guidelines (see 42 U.S.C. 1758(f)(1)(A) and (a)(4)(B)) is
sufficiently general to allow for meal pattern standards that use
the Dietary Guidelines as a starting point and align with general
recommended goals, rather than exactly replicating specific
quantitative standards. See 438 F. Supp. 3d at 562-63.
---------------------------------------------------------------------------

The requirement that at least 80 percent of the weekly grains
offered in the NSLP and SBP are whole grain-rich is a minimum standard,
not a maximum. It reflects a practical and feasible way to work towards
the Dietary Guidelines' emphasis on increasing whole grain consumption
as USDA considers further changes in a future rulemaking. Requiring at
least 80 percent--as opposed to the proposed 50 percent--of the weekly
grains offered in the NSLP and SBP to be whole grain-rich is a standard
that many schools were able to accomplish prior to the COVID-19
pandemic. This achievable, transitional standard gives schools the
ability to plan healthy meals that reflect regional and cultural
student preferences and allows the food industry time to develop more
whole grain-rich products that students find acceptable. A 2021 survey
of school nutrition directors found that 49 percent of respondents
considered product or ingredient availability to be a significant
challenge in meeting the whole grain-rich requirement. Another 44
percent of respondents considered product or ingredient availability to
be a moderate challenge.\47\ This is consistent with USDA research that
found that 45 percent of SFA respondents identified lack of available
products as a challenge to meeting the whole grain-rich requirement.
SFAs also identified purchasing whole grain-rich products as the top
strategy to meet this requirement, suggesting that product availability
is key to success in meeting the whole grain-rich standard.\48\
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\47\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: <a href="https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf">https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf</a>.
\48\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf</a>.
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Schools already offering all grains as whole grain-rich do not have
to change their menus as a result of this final rule and are encouraged
to continue exceeding the minimum regulatory standard. For other
schools, 7 CFR 210.12(a) allows students, parents and guardians, and
community members to influence menu planning at the local level; USDA
encourages the school community to provide ideas on how to incorporate
more whole grain-rich products in the breakfast and lunch menus at
their local school. USDA appreciates comments that suggested allowing
exceptions or waivers to the whole grain-rich requirement on an as-
needed basis; however, USDA's waiver authority under the National
School Lunch Act does not allow the Secretary to issue individual or
statewide waivers related to the meal pattern requirements. Therefore,
USDA does not have the authority to waive the whole grain-rich
requirement on an as-needed basis.\49\
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\49\ Temporary authority provided by Congress has permitted USDA
to issue whole grain-rich exemptions or meal pattern waivers in the
past; for example, in response to the COVID-19 public health
emergency. However, USDA does not have the authority to issue these
waivers without Congressional intervention.
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Studies have demonstrated the importance of school meals in
improving children's overall diets, including their whole grain
consumption.\50\ \51\ Whole grains are a

[[Page 6997]]

good source of dietary fiber, and consumption of whole grains is
associated with reduced risk of cardiovascular disease, type 2
diabetes, and certain cancers. In acknowledgement of the health
benefits of whole grains, USDA encourages schools to incorporate whole
grain-rich products in their menus as often as possible, especially in
popular foods such as pizza or sandwich rolls. USDA will continue to
provide training and technical assistance to assist in these efforts.
In addition, USDA Foods will continue to make whole grain-rich products
available to schools. For example, whole grain-rich USDA Foods
available to schools for SY 2021-2022 included flour, rolled oats,
pancakes, tortillas, and several varieties of pasta and rice.
---------------------------------------------------------------------------

\50\ Biing-Hwan Lin, Joanne F. Guthrie, Travis A. Smith, Dietary
Guidance and New School Meal Standards: Schoolchildren's Whole Grain
Consumption Over 1994-2014, American Journal of Preventive Medicine,
Volume 57, Issue 1, July 2019. Available at: <a href="http://www.sciencedirect.com/science/article/pii/S0749379719300546">http://www.sciencedirect.com/science/article/pii/S0749379719300546</a>.
\51\ Aune D, Keum N, Giovannucci E, Fadnes LT, Boffetta P,
Greenwood DC, Tonstad S, Vatten LJ, Riboli E, Norat T. Whole grain
consumption and risk of cardiovascular disease, cancer, and all
cause and cause specific mortality: systematic review and dose-
response meta-analysis of prospective studies. BMJ. June 2016.
Available at: <a href="https://pubmed.ncbi.nlm.nih.gov/27301975/">https://pubmed.ncbi.nlm.nih.gov/27301975/</a>.
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Accordingly, this final rule amends 7 CFR 210.10(c)(2)(iv)(B) and
220.8(c)(2)(iv)(B), to require that at least 80 percent of the weekly
grains offered in the NSLP and SBP meet the whole grain-rich criteria
specified in USDA guidance. USDA invites public comments on the whole
grain-rich standards discussed in this final rule. These public
comments will help inform USDA's future rulemaking.

C. Sodium Standards

To avoid excessive sodium intake in school meals, the 2012 final
rule established sodium target limits at 7 CFR 210.10(f)(3) and
220.8(f). These targets were developed through a review of scientific
literature; consultation with public health professionals, industry,
and other entities involved in sodium reduction efforts; and
recommendations from the National Academy of Medicine (formerly the
Institute of Medicine). Based on this research, the 2012 final rule
included three transitional targets to gradually reduce sodium intake
over a 10-year period. The initial target, Sodium Target 1 for NSLP,
was determined as a 10 percent reduction from the average sodium
content offered for lunch in SY 2004-2005.\52\ Similarly, Sodium Target
1 for SBP was determined as a 5 percent reduction from the average
sodium content offered for breakfast. The Final Sodium Target was
developed using the 2005 Tolerable Upper Intake Levels (UL) for sodium
in the Dietary Reference Intakes (DRI) for each age group at the
current time. The Final Sodium Target would require significant efforts
by the food industry to reformulate and develop new products lower in
sodium. Sodium Target 2 represented an intermediate target achievable
with product reformulations using technology available to industry when
the 2012 rule was under development.
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\52\ Institute of Medicine (IOM 2010). School Meals: Building
Blocks for Healthy Children. Washington, DC: The National Academies
Press. Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/SchoolMealsIOM.pdf">https://fns-prod.azureedge.net/sites/default/files/SchoolMealsIOM.pdf</a>.
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Prior to the vacatur of the 2018 final rule, successive legislative
and administrative action delayed implementation of the sodium
reduction targets. At the time of the court vacatur, schools were
required to meet Sodium Target 1; with the court vacatur, Sodium Target
2 immediately went into effect. However, during the pandemic, USDA
permitted schools to operate SFSP, which does not have a sodium limit,
at the end of SY 2019-2020 and in SY 2020-2021. USDA also provided
nationwide targeted meal pattern waivers through SY 2021-2022, which
allowed SFAs to serve meals that did not meet the sodium targets,
throughout that period. As a result, schools have never had to
implement Sodium Target 2.
2020 Proposed Rule and Public Comments
The 2020 proposed rule sought to maintain Sodium Target 1
requirements through SY 2023-2024 (June 30, 2024); to delay required
compliance with Target 2 requirements to SY 2024-2025 (July 1, 2024);
and to remove the Final Target. In response to the 2020 proposed rule,
USDA received 4,710 comments regarding the sodium standards. The
following table shows tallies of the total and unique comments received
in response to the proposed sodium standards:

2020 Proposed Sodium Standards
----------------------------------------------------------------------------------------------------------------
Total sodium
comments Percent of Unique sodium Percent of
Respondent position (including total sodium comments unique sodium
form letters) comments comments
----------------------------------------------------------------------------------------------------------------
Support......................................... 94 2 90 58
Mixed........................................... 34 <1 34 22
Oppose.......................................... 4,582 97 30 19
---------------------------------------------------------------
Total....................................... 4,710 100 154 99
----------------------------------------------------------------------------------------------------------------

Comments in Support
Ninety-four comments supported the proposed sodium standards. Many
proponents discussed the work done by school food service
professionals, manufacturers, and vendors in striving to meet Sodium
Targets 1 and 2 and their commitment toward gradual sodium reduction
over time. However, proponents also expressed concern about student
acceptance of lower sodium meals because students are accustomed to
eating foods with higher sodium content outside of school. Some
proponents predicted Sodium Target 2 would create more food waste, or
that decreasing sodium to the Final Target would result in lower
student participation. One proponent suggested the proposed sodium
standards provide schools with ``desperately needed time'' for gradual
sodium reduction by temporarily retaining Target 1, continuing to
Target 2 in SY 2024-2025, and eliminating the Final Target; this
respondent also acknowledged the considerable work already done by
schools to meet Target 1.
One proponent reasoned it does not make sense to move to a lower
sodium target until manufacturers find a way to make low-sodium foods
taste better. Several proponents stated sodium naturally occurs in some
foods, such as meat and milk, and it would be difficult to reduce
sodium levels without removing these items from menus. A national
industry group and a food manufacturer argued that some foods require
certain levels of sodium for

[[Page 6998]]

functional and food safety reasons, making it particularly difficult to
formulate lower sodium options without increasing food safety risk,
increasing food waste, and decreasing shelf-life.
Comments in Opposition
A total of 4,582 comments opposed the proposed sodium standards.
Several opponents were concerned that the proposed changes are not
consistent with current nutrition science and may exacerbate the
already high rates of nutrition-related chronic disease in the United
States. Some opponents, including advocacy groups and professional
associations, argued the delay of Target 2 and the elimination of the
Final Target would conflict with the dietary reference intake
guidelines for sodium. They cited a 2019 report warning that exceeding
recommended sodium levels could increase chronic disease risk within a
healthy population. These opponents noted that the National Academies
of Sciences, Engineering, and Medicine had pursued even stronger sodium
recommendations for younger children than those levels established when
the 2012 rule was finalized. The Dietary Guidelines, 2020-2025 were not
yet published during the proposed rule comment period, but a joint
comment from advocacy groups and professional associations expected the
updated Dietary Guidelines to recommend that children consume a level
of sodium below that achieved by Target 2. The respondents asked that
USDA wait until after Dietary Guidelines, 2020-2025 were issued to
address sodium levels, and recommended USDA set a ``realistic''
timetable for achieving sodium reduction in the long-term based on the
updated Dietary Guidelines.
Opponents noted excess sodium intake is associated with higher risk
of high blood pressure, heart disease, stroke, atrial fibrillation,
aortic dissection, and osteoporosis. They stated the proposed targets
could result in children ages 4-13 years old who participate in the
NSLP and SBP exceeding the current recommended daily limits for sodium
intake. Multiple opponents cited a Centers for Disease Control and
Prevention report that found 9 in 10 children consume too much sodium.
An advocacy group stated that delaying further sodium reduction is
inconsistent with the Dietary Guidelines, tested nutritional research,
and nutrition recommendations. A professional association argued that
the delay of Target 2 and the elimination of the Final Target would
harm children's health, citing several sources describing the health
risks associated with excess sodium consumption. Several State
attorneys general expressed concern that the proposed changes to the
sodium limits could worsen health disparities for racial and ethnic
minority groups.
Opponents noted many schools have already made healthy and
appealing meals with less sodium. They argued the proposed standards
would reduce demand for low-sodium products, making it harder for
schools to find low-sodium products because the school food industry
will be slower to develop and market them. Several opponents argued
that schools have successfully reduced sodium in meals to meet Sodium
Target 1, and products are already on the market to help schools meet
Target 2 and the Final Target. One opponent claimed that popular school
pizza brands have reduced sodium levels. They also noted that food
manufacturers are engaged in voluntary sodium reduction efforts, and
expected these efforts to intensify when the U.S. Food and Drug
Administration (FDA) releases voluntary sodium reduction targets for
processed, packaged, and restaurant foods. FDA's voluntary sodium
reduction targets were released in October 2021. Some opponents
encouraged USDA to continue to support schools' efforts to reduce
sodium through enhanced training and technical assistance.
Mixed Response
Thirty-four respondents expressed conditional support or
opposition, or offered suggestions for improving the proposed sodium
standards. Trade associations, State agency employees, a nutritionist,
and a couple of individual respondents expressed support for delaying
the sodium targets to allow schools and industry more time to achieve
gradual sodium reduction. One respondent stressed the importance of
acting upon nutrition research related to sodium, but agreed it was
appropriate to afford schools more time to reduce sodium. One State
agency supported extending Target 1 through SY 2023-2024 and delaying
Target 2 to SY 2024-2025, noting that this would allow the food
industry more time for product development and reformulation, provide
SFAs more time to procure and introduce lower sodium food products, and
give students more time to adjust to school meals with lower sodium
content. Another State agency supported postponing Target 2
implementation, and supported a ``reexamination,'' but not full
removal, of the Final Target. This State agency also encouraged USDA to
continue working with the food industry to improve the nutritional
profile of foods across the board, not just to the K-12 market, noting
that some school districts and residential child care institutions
purchase foods through smaller markets and may not have access to major
food distributors. An advocacy group expressed a similar view,
recommending that Target 2 become the Final Target, pending the final
evaluation of FDA's voluntary sodium reduction targets at a later date.
Other State agencies expressed similar support for temporarily delaying
implementation of Target 2, to allow more time for product
reformulation and COVID-19 recovery, but did not comment on the
proposal to eliminate the Final Target. One of these State agencies
applauded the work by school nutrition professionals in their State to
decrease the sodium content of school meals over the past decade,
noting that schools continue to develop and utilize recipes that
support the gradual reduction of sodium over time.
Several respondents recognized the need to reduce sodium in school
meals, but argued that the sodium targets and reduction timelines in
the 2012 proposed rule are too aggressive. For example, a school
district employee stated their district was able to meet Sodium Target
1, but asserted that Sodium Target 2 would be more difficult to meet,
or potentially, unattainable. Some respondents suggested USDA retain
Sodium Target 1 indefinitely, or argued that Sodium Target 2 was overly
restrictive. A food manufacturer noted that, while it could adjust its
formulas to reduce sodium, taste would be compromised.
Transitional Standards and Considerations for Future Rulemaking
USDA agrees with comments that noted the importance of gradually
moving towards lower sodium meals in a way that is achievable for
schools and the food industry. This final rule maintains Sodium Target
1 for NSLP and SBP through SY 2022-2023, retains Sodium Target 1 for
SBP in SY 2023-2024, and institutes a modified Sodium Interim Target 1A
for NSLP beginning in SY 2023-2024.\53\ These standards, which are
meant to be transitional, are shown in the charts below. USDA
recognizes the importance of decreasing sodium in school meals, for
which the majority of comments advocated. The approach in this final
rule positions SFAs on an achievable path toward

[[Page 6999]]

further sodium reduction in school meals, and responds to school
concerns about product availability, discussed in detail later in this
section. As discussed earlier, USDA will promulgate a new rulemaking to
address sodium standards in SY 2024-2025 and beyond. Since USDA intends
the standards in this final rule as transitional standards, this rule
eliminates Target 2 or any stricter sodium standard for SY 2024-2025
and beyond. However, this does not mean USDA intends to permanently
eliminate stricter sodium standards in the long-term. Rather, this rule
implements transitional sodium standards until USDA develops long-term
standards that will further advance nutrition security.
---------------------------------------------------------------------------

\53\ USDA fully expects to have new standards in place for SY
2024-2025 and beyond. However, in case of an unanticipated delay,
the standards set by this rule will remain legally effective until
such time as subsequent standards are promulgated.

National School Lunch Program Transitional Sodium Timeline & Limits
----------------------------------------------------------------------------------------------------------------
Interim Target 1A:
Age/grade group Target 1: Effective July Effective July 1, 2023
1, 2022 (mg) (mg)
----------------------------------------------------------------------------------------------------------------
K-5......................................................... <1,230 <1,110
6-8......................................................... <1,360 <1,225
9-12........................................................ <1,420 <1,280
----------------------------------------------------------------------------------------------------------------

School Breakfast Program Transitional Sodium Timeline & Limits
------------------------------------------------------------------------
Target 1: Effective July
Age/grade group 1, 2022 (mg)
------------------------------------------------------------------------
K-5........................................... <540
6-8........................................... <600
9-12.......................................... <640
------------------------------------------------------------------------

The sodium limits apply to the average lunch and breakfast offered
during the school week; they do not apply per day, per meal, or per
menu item. This allows menu planners to occasionally offer higher
sodium meals or menu items, if these meals or menu items are balanced
out with lower sodium meals and menu items throughout school the week.
These transitional standards align with FDA's recent voluntary
sodium reduction targets for the food industry. The FDA's goal of
supporting reductions in sodium intake is consistent with the Dietary
Guidelines for Americans, 2020-2025 and the 2019 National Academies of
Sciences, Engineering, and Medicine Dietary Reference Intakes Report on
Sodium and Potassium.\54\ FDA's guidance provides short-term (2.5 year)
voluntary sodium reduction targets for food manufacturers, chain
restaurants, and food service operators for 163 categories of
processed, packaged, and prepared foods.\55\ The targets in FDA's
guidance, issued in October 2021, seek to support decreasing average
U.S. population sodium intake from approximately 3,400 mg to 3,000 mg
per day, about a 12 percent reduction. These reductions are anticipated
to support a gradual sodium reduction strategy in NSLP and SBP. While
FDA is recommending the voluntary targets be met in 2.5 years (April
2024), in advance of that timeframe schools are anticipated to be able
to procure additional options that are lower in sodium as the food
industry continues reformulation efforts and develops new food products
that align with FDA's voluntary targets. The gradual steps schools will
take to lower sodium intake in the short term are important to further
support reducing children's average sodium intake as recommended by the
Dietary Guidelines. When issuing its guidance, FDA noted that modest
sodium reductions can reduce the risk of diet-related diseases and
improve health.\56\
---------------------------------------------------------------------------

\54\ U.S. Food and Drug Administration: Sodium Reduction.
Available at: <a href="http://www.fda.gov/SodiumReduction">www.fda.gov/SodiumReduction</a>.
\55\ U.S. Food and Drug Administration: Voluntary Sodium
Reduction Goals: Target Mean and Upper Bound Concentrations for
Sodium in Commercially Processed, Packaged, and Prepared Foods.
October 2021. Available at: <a href="http://www.fda.gov/SodiumReduction">www.fda.gov/SodiumReduction</a>.
\56\ U.S. Food and Drug Administration: To Improve Nutrition and
Reduce the Burden of Disease, FDA Issues Food Industry Guidance for
Voluntarily Reducing Sodium in Processed and Packaged Foods.
Available at: <a href="https://www.fda.gov/news-events/press-announcements/improve-nutrition-and-reduce-burden-disease-fda-issues-food-industry-guidance-voluntarily-reducing">https://www.fda.gov/news-events/press-announcements/improve-nutrition-and-reduce-burden-disease-fda-issues-food-industry-guidance-voluntarily-reducing</a>.
---------------------------------------------------------------------------

USDA considered FDA's sodium reduction guidance in the context of
the school meal standards, which include dietary specifications for
specific age/grade groups. USDA also relied on the Dietary Guidelines,
2020-2025 and the 2009 National Academy of Medicine report, which
informed the sodium targets in the 2012 rule. USDA also considered the
timeframe for FDA's voluntary short-term sodium reduction targets, as
noted above. When examining the daily sodium allocation attributed to
each meal, USDA determined that sodium reductions are most needed at
lunch. Therefore, USDA is maintaining Sodium Target 1 for breakfast
during the two-year timeframe of this transitional rule, which will
allow schools to focus their sodium reduction efforts on school lunch.
Noting some commenters' concerns with the palatability of lower sodium
school meals and to establish feasible sodium reductions in school
lunches, USDA set the near-term (Target 1A) reduction at 10 percent,
which also aligns with research indicating gradual sodium reductions
are less noticeable to consumers.\57\
---------------------------------------------------------------------------

\57\ Institute of Medicine 2010. Strategies to Reduce Sodium
Intake in the United States. Washington, DC: The National Academies
Press. <a href="https://doi.org/10.17226/12818">https://doi.org/10.17226/12818</a>.
---------------------------------------------------------------------------

On average, under Sodium Target 1A, daily sodium amounts for school
lunch will be reduced as follows:

<bullet> Grades K-5: 120 mg reduction (<1,230 mg to <1,110 mg)
<bullet> Grades 6-8: 135 mg reduction (<1,360 mg to <1,225 mg)
<bullet> Grades 9-12: 140 mg reduction (<1,420 mg to <1,280 mg)

A 10 percent sodium reduction for NSLP is a reasonable approach in
the near-term given a variety of factors, including COVID-19 response
and recovery, in school settings, school staffing challenges, and
current product availability. It represents an achievable goal that
supports gradual sodium reduction. A variety of factors, including
implementation of FDA's voluntary reduction targets,

[[Page 7000]]

developments in food science, and feedback from State and local
stakeholders, will inform USDA's decisions regarding sodium moving
forward. As lower sodium products become more widely available in the
broader food market and children grow more accustomed to lower sodium
foods, issues of palatability may not be as significant a factor in
setting NSLP and SBP sodium standards.
Consistent with statutory requirements, USDA's intention is to
ensure that the sodium targets for school meals reflect the goals of
the current Dietary Guidelines, which recommend reducing average sodium
intake from current levels. The Dietary Guidelines also suggest that
small changes matter, and can significantly improve the overall
nutritional profile of a meal.\58\ USDA considered the sodium
recommendations in the current Dietary Guidelines among other factors,
such as the COVID-related operational and implementation challenges,
and determined that the transitional standards in this rule will allow
schools to gradually progress toward further sodium reduction in school
meals. This approach reflects the sodium targets, which were achieved
prior to the pandemic, and includes a moderate further reduction in the
NSLP targets, consistent with FDA's guidance for the food industry.
---------------------------------------------------------------------------

\58\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Available at
<a href="http://DietaryGuidelines.gov">DietaryGuidelines.gov</a>.
---------------------------------------------------------------------------

USDA acknowledges that sodium targets must be achievable for most
schools based on product availability, and must allow schools to plan
appealing meals that encourage consumption and intake of key nutrients
that are essential for children's growth and development. This final
rule responds to school food professionals, who are concerned about
their ability to procure foods that comply with Sodium Target 2 and the
Final Sodium Target in the near-term. A 2021 survey of school nutrition
directors found that 62 percent of respondents considered product or
ingredient availability to be a significant challenge in meeting Sodium
Target 2, and 75 percent considered it to be a significant challenge in
meeting the Final Sodium Target. Respondents also expressed concern
about sodium levels in specific foods and products. For example, when
citing challenges in meeting Sodium Target 2, 55 percent of respondents
described naturally occurring sodium in foods such as milk, low-fat
cheese, and meat as a significant challenge, and 64 percent considered
sodium levels in condiments to be a significant challenge.\59\ A USDA
study found that 70 percent of SFAs planned to purchase lower sodium
products in order to meet sodium standards, suggesting availability of
products is an important factor in their ability to meet the
standards.\60\
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\59\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: <a href="https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf">https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf</a>.
\60\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf</a>.
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Looking ahead, USDA recognizes the need for further sodium
reduction. The changes in this final rule, which are intended as
transitional standards, will encourage the re-introduction of lower
sodium foods and meals to students, and give the food industry
additional time to develop and test lower sodium products that are
palatable to students. It will allow more time for school food
professionals to engage in student taste tests, which help SFAs to make
informed decisions regarding well-accepted food products. A USDA study
found that obtaining feedback from students via taste testing was the
most often-employed strategy for product selection and recipe
refinement, according to SFAs.\61\ Further, about three-quarters of
school food service directors reported that gaining student acceptance
of the meal pattern standards was moderately to extremely challenging
with respect to maintaining student participation; this makes
additional time for recipe refinement important.\62\
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\61\ Successful Approaches to Reduce Sodium in School Meals.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf</a>.
\62\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
---------------------------------------------------------------------------

These transitional standards are especially needed after COVID-19
operations when many schools were offering grab-and-go meals that
included processed, individually wrapped food products to ensure the
safe distribution of food to children. Additionally, limited staffing,
which made it harder to cook meals from scratch, likely contributed to
increased sodium levels during SY 2020-2021 and SY 2021-2022 compared
to just prior to the pandemic. A 2021 survey of school nutrition
directors found that 47 percent of respondents considered scratch
cooking limitations (e.g., staffing, infrastructure, schedule) to be a
significant challenge in working towards meeting Sodium Target 2, and
58 percent considered it to be a significant challenge in working
towards meeting the Final Sodium Target. USDA recognizes that response
and eventual recovery from the effects of the pandemic will take time;
SFAs continue to face many challenges that impact the school meal
service, including increased food costs, supply chain disruptions,
labor shortages, and transportation issues.
USDA is committed to supporting long-term sodium reduction, which
is consistent with the goals of the Dietary Guidelines, 2020-2025 and
Healthy People 2030 \63\ and critical to the healthy development of our
Nation's children. As noted, this rule does not implement Sodium Target
2 or the Final Sodium Target for the near-term because this rule
represents transitional standards which meaningfully move nutritional
standards forward as part of an overall process--which will include
further notice-and-comment rulemaking--to continually enhance
nutritional security of the school meal programs. However, immediate
implementation of significant sodium reduction could potentially lower
student acceptance of school meals. Currently, students may be
accustomed to eating higher-sodium foods outside of school, and
potentially, higher-sodium school meals that may have been served
during pandemic operations. Extending Sodium Target 1 and instituting
Sodium Interim Target 1A for the NSLP is important for practical
reasons. Setting a more practicable approach to sodium reduction allows
more time for product reformulation, school menu adjustments, recipe
development, personnel training, and changes in student preferences; as
noted by comments, these factors are important to successful
implementation of further sodium reduction in school meals.
---------------------------------------------------------------------------

\63\ U.S. Department of Health and Human Services. Nutrition and
Healthy Eating. Available at: <a href="https://health.gov/healthypeople/objectives-and-data/browse-objectives/nutrition-and-healthy-eating">https://health.gov/healthypeople/objectives-and-data/browse-objectives/nutrition-and-healthy-eating</a>.
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The Dietary Guidelines note that taste preferences for salty foods
may be established early in life, and that early food preferences can
influence later food choices.\64\ However, palates can

[[Page 7001]]

also adjust to lower sodium foods.\65\ Because the preference for salty
foods is a learned preference, the transitional standards in this final
rule provide additional time for the overall food marketplace and
community public health messaging to take steps to also reduce sodium
in the food supply, while encouraging moderate reductions in school
lunches. Allowing sodium reduction in schools to be on pace with
community sodium reduction strategies, and implementation of the FDA's
voluntary short-term sodium reduction targets, will yield a higher
likelihood of success. This approach also will allow the opportunity
for input from key stakeholders on how sodium reduction in schools can
be coordinated with a larger public health effort and with industry
research and development, so that children's preference for sodium in
foods can gradually change without noticeable changes to the
palatability of school meals. In addition, this final rule will provide
USDA with additional time to thoughtfully propose a new rule that
offers a permanent, achievable reduction in sodium in school meals that
continues to be consistent with the goals of the Dietary Guidelines.
---------------------------------------------------------------------------

\64\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Available at
<a href="http://DietaryGuidelines.gov">DietaryGuidelines.gov</a>.
\65\ IOM (Institute of Medicine). Strategies to Reduce Sodium
Intake in the United States. Washington, DC The National Academies
Press; 2010.
---------------------------------------------------------------------------

USDA appreciates that, since 2012, schools have made significant
progress in reducing the sodium content of meals. A study published in
2020 \66\ provides evidence that schools have the ability to provide
lower sodium meals that are acceptable to students and do not increase
food waste. The study also notes that 9 in 10 children in the United
States consume sodium at levels that exceed Dietary Guidelines and
National Academy of Medicine (formerly the Institute of Medicine)
recommendations, and that 1 in 6 children have pre-high blood pressure
or high blood pressure, putting them at risk for cardiovascular disease
as adults. Because of these health risks, it is important for schools
that have the ability to reduce the sodium content of meals to do so.
Further, USDA encourages families and communities to support schools'
efforts by taking gradual steps to reduce the sodium content of meals
offered to children outside of schools when possible. Wholesome school
meals are only a part of children's daily food intake, and children
will be more likely to eat them if the foods available to them outside
of school are also lower in sodium. Helping students adjust their taste
preferences requires collaboration between schools, parents and
guardians, and communities.
---------------------------------------------------------------------------

\66\ Juliana F.W. Cohen, Scott Richardson, Christina A. Roberto,
Eric B. Rimm, Availability of Lower-Sodium School Lunches and the
Association with Selection and Consumption among Elementary and
Middle School Students, Journal of the Academy of Nutrition and
Dietetics, 2020. Available at: <a href="http://www.sciencedirect.com/science/article/pii/S2212267220309710">http://www.sciencedirect.com/science/article/pii/S2212267220309710</a>.
---------------------------------------------------------------------------

USDA's Team Nutrition and the Institute of Child Nutrition have
developed a range of resources and tools for reducing sodium; USDA will
continue to provide schools with technical assistance, training
resources, recipes, and mentoring to help them offer healthy, lower
sodium meals. To support schools, USDA will engage public health
organizations to collaborate on messages to educate families and
communities about the need for sodium reduction in school meals.
Further, USDA will gather feedback on how sodium reduction impacts
schools' ability to offer foods from a variety of cultures and regions
to avoid negatively impacting the diversity of school meal menus. In
addition, USDA Foods will continue to provide food products with no
added salt and/or low sodium content for inclusion in school meals. As
noted previously, at the local level, 7 CFR 210.12(a) allows students,
parents and guardians, and community members to influence menu
planning; USDA encourages the school community to provide ideas on
sodium reduction strategies. USDA also encourages schools to
communicate the importance of reducing sodium in school meals, for
example, by sharing nutrition education messages with students in the
school cafeteria.
Accordingly, this final rule amends 7 CFR 210.10(f)(3) and 220.8(f)
to maintain Sodium Target 1 for NSLP and SBP through SY 2022-2023, as
well as for SBP in SY 2023-2024, and implement Sodium Target 1A for
NSLP no later than SY 2023-2024. USDA invites public comments on the
USDA sodium standards discussed in this final rule, including comments
about how USDA can support implementation of those sodium standards.
These public comments will help to inform USDA's future rulemaking.

IV. Good Cause

While USDA has extensively considered public comments on this final
rule, USDA would have good cause to issue this rule even without
soliciting public comment.
USDA believes that good cause exists to implement these
transitional standards as an interim final rule due to the immediate
need of school operators to begin procurement activities for school
meal programs. Since March 2020, USDA and Child Nutrition Program
operators have worked tirelessly to ensure children's access to
nutritious meals throughout the pandemic, safe reopening of schools,
and steps towards resumption of traditional meal service. Most
resources have been devoted to such efforts and as explained above, the
2012 standards were not applicable during such period due to COVID-
related flexibilities granted by Congress. However, Congress recently
revised such flexibilities to end after SY 2021-2022. See Section
3102(a) of the Extending Government Funding and Delivering Emergency
Assistance Act (Pub. L. 117-43) (amending Section 2202(e) of the
Families First Coronavirus Response Act).
In addition, many SFAs plan school menus months in advance of the
new school year. For SFAs to make menu planning, procurement, and
contract decisions in advance of the school year, they need advance
notice of the meal pattern requirements. As shown in the chart below,
due to the numerous steps involved, the ICN estimates that the entire
procurement process may take up to a year to complete.

Procurement Timeline for School Food Service Operators
------------------------------------------------------------------------
Month(s) Task(s)
------------------------------------------------------------------------
August-September............. <bullet> Begin preparing for procuring
items. Planning approximately one year
in advance provides sufficient time for
preparation for all parties in the food
chain.
October-December............. <bullet> Write specifications.
<bullet> Project USDA Foods needs.
<bullet> Fall and winter breaks may
impact timeline.

[[Page 7002]]

January...................... <bullet> Develop solicitation document.
Include pertinent information about the
district; date and time for pre-
solicitation conference and solicitation
submission; scope of work; time period
for the solicitation; any common
legalities; ability for price
escalations; name brand items;
substitutions; discounts, rebates, and
applicable credits; communication
instructions with the district prior to
the closing date; solicitation
evaluation criteria.
<bullet> Plan accordingly to have
solicitation document and agenda item at
school board meeting.
<bullet> Modify proposal based on legal
counsel's directives. Remember fall and
winter breaks may impact the timeline.
February-March............... <bullet> Propose solicitation document to
school board.
<bullet> Follow internal procedures.
<bullet> Communicate to distributors and
manufacturer and publicly announce the
solicitation.
<bullet> Publicize the solicitation
document.
<bullet> Conduct the solicitation
meeting.
<bullet> Allow a minimum of four weeks
for vendors to respond.
<bullet> Evaluate solicitations based on
pre-established criteria and select
vendors.
April-May.................... <bullet> Receive School Board approval
for the selection of vendor.
<bullet> Provide information to
distributor and/or manufacturer.
<bullet> Allow longer time for specialty
items and name brand items.
June......................... <bullet> Communicate with stakeholders,
determine delivery dates, and discuss
school opening logistics.
July-August.................. <bullet> Receive products for upcoming
school year.
------------------------------------------------------------------------

Planning and acting in advance saves time, helps avoid repetitive
tasks, and implements cost-effective inventory management, according to
the ICN. Once menu planning is complete, schools need lead time to
screen products, forecast required food quantities, write product
specifications, create solicitation documents, announce the
solicitation, and award the contract for the next school year. This
final rule is necessary and timely, because for schools to successfully
plan and adequately prepare for SY 2022-2023, they need to know the
meal pattern requirements immediately. Planning and preparing for the
new school year is important not only from an administrative
standpoint; it also allows school nutrition professionals to better
serve the children who rely on school breakfast and lunch for up to
half their dietary intake each school day.\67\ Supporting schools'
ability to plan ahead is especially important at a time when schools
are still facing pandemic-related concerns, such as supply chain
disruptions, staff shortages, and financial losses.\68\ Importantly, if
schools do not have sufficient time to procure foods that comply with
the meal pattern standards, they may choose not to participate in the
programs or, if they do participate, may be found noncompliant and,
depending on the meal pattern violation, ineligible for reimbursement.
---------------------------------------------------------------------------

\67\ Karen Weber Cullen, Tzu-An Chen, The contribution of the
USDA school breakfast and lunch program meals to student daily
dietary intake, Preventive Medicine Reports. March 2017. Available
at: <a href="https://www.sciencedirect.com/science/article/pii/S2211335516301516">https://www.sciencedirect.com/science/article/pii/S2211335516301516</a>.
\68\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: <a href="https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf">https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf</a>.
Continued pandemic-related supply chain disruptions, staff,
shortages, and financial sustainability/losses were identified as
the top three ``serious concerns'' among survey respondents.
---------------------------------------------------------------------------

V. Summary

In 2012, USDA published a final rule that raised school meal
nutrition standards for the first time in more than 15 years. The
updated meal patterns were a key component of implementing the Healthy,
Hunger-Free Kids Act, which significantly enhanced school meal
standards to meet the nutritional needs of children and to safeguard
their health and well-being. Most elements of the 2012 regulations have
been successfully implemented with measurable, positive effect.\69\
Under the updated standards, USDA research found that school lunches
were more nutritious compared to lunches from home or other places. For
example, students who ate school lunches were more than twice as likely
to consume vegetables at lunch compared to students who ate lunches
from home or other sources.\70\ USDA also found that a majority of SFA
directors agreed that the updated standards were helpful in decreasing
sodium, increasing dark green and red/orange vegetables, meeting
calorie requirements, and increasing whole grains in school meals.\71\
---------------------------------------------------------------------------

\69\ School Nutrition and Meal Cost Study findings suggest that
the updated nutrition standards have had a positive and significant
influence on the nutritional quality of school meals. Between SY
2009-2010 and SY 2014-2015, ``Healthy Eating Index-2010'' (HEI)
scores for NSLP and SBP increased significantly, suggesting that the
updated standards significantly improved the nutritional quality of
school meals. Over this period, the mean HEI score for NSLP lunches
increased from 57.9 to 81.5, and the mean HEI score for SBP
breakfasts increased from 49.6 to 71.3. The study is available at:
<a href="https://www.fns.usda.gov/school-nutrition-and-meal-cost-study">https://www.fns.usda.gov/school-nutrition-and-meal-cost-study</a>.
School Nutrition and Meal Cost Study (OMB Control Number 0584-0596,
expiration date 07/31/2017.)
\70\ Lunches Consumed From School Are the Most Nutritious.
Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic5_SchoolLunchesAretheMostNutritious.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic5_SchoolLunchesAretheMostNutritious.pdf</a>.
\71\ Updated Nutrition Standards Posed Challenges but Achieved
Underlying Goals. Available at: <a href="https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic1_ChallengeswithNutritionStandards.pdf">https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic1_ChallengeswithNutritionStandards.pdf</a>.
---------------------------------------------------------------------------

Yet, for several years after publication of the 2012 rule,
administrative and legislative action provided flexibility to the milk,
whole grains, and sodium requirements. In 2018, USDA published a final
rule to revise the requirements for milk, whole grains, and sodium. In
April 2020, due to a court decision vacating the 2018 rule, the meal
pattern requirements for milk, whole grains, and sodium immediately
reverted to the 2012 regulations.
Nevertheless, nationwide meal pattern waivers provided flexibility
to allow safe meal service during the COVID-19 pandemic, so the court
decision had little practical effect on schools at the time. These
waivers will expire on June 30, 2022. However, many schools are not
ready to immediately serve meals that meet the milk, whole grains, and
sodium requirements from the 2012 rule. Reverting to these
requirements, some of which have never been fully in effect,
immediately after the waivers expire would be unrealistic and impose
unreasonable difficulties on

[[Page 7003]]

schools, undermining their ability to comply with Program requirements.
Additionally, schools need more time to respond to and recover from the
economic and transformational impacts of meal service during the
pandemic.
Considering the comments received on the November 2020 proposed
rule, circumstances affecting schools, and the current Dietary
Guidelines, USDA is finalizing the November 2020 proposed rule with
standards targeting three meal requirements for the near-term, which
will provide schools with a measured transition to healthier meals. The
transitional standards offered in this final rule apply only to the
milk, whole grains, and sodium requirements. This final rule will allow
NSLP and SBP operators, and some CACFP and SMP operators, to offer
flavored, low-fat milk; require at least 80 percent of the weekly
grains in the school lunch and breakfast menus to be whole grain-rich;
and retain Sodium Target 1 for NSLP and SBP through the end of SY 2022-
2023, as well as for SBP beginning in SY 2023-2024, and make a Sodium
Interim Target 1A effective for NSLP beginning in SY 2023-2024.
Schools that can meet or exceed these standards do not have to
change their menus because of this final rule, and are encouraged to
continue exceeding the regulatory standard to provide students with the
healthiest meals possible. At the local level, 7 CFR 210.12(a) allows
students, parents and guardians, and community members to influence
menu planning. The local school wellness policy (7 CFR 210.31) also
provides an important opportunity to influence the school nutrition
environment at large; USDA encourages community members to support
their local school's efforts to provide students with nutritious school
meals. In addition, 7 CFR 210.19(e) allows State agencies discretion to
set additional requirements that are not inconsistent with the minimum
nutrition standards for school meals.
Looking ahead, USDA will promulgate a new rulemaking regarding
nutritional requirements for school meals that comprehensively
considers the goals of the Dietary Guidelines, 2020-2025, recent
nutrition science, and the needs of children who may experience food
and nutrition insecurity. USDA also commits to providing stakeholders
with a meaningful opportunity to offer comments on a new proposed rule
and will fully consider all comments. USDA intends to propose and
finalize a new rule that demonstrates the Department's commitment to
nutrition to be effective by SY 2024-2025.
Meanwhile, USDA will continue to provide schools with technical
assistance, training resources, and mentoring to help them offer
nutritious meals that students enjoy. In addition, USDA Foods will
continue to provide whole grain-rich products and products with no
added salt and/or low sodium content for inclusion in school meals.
USDA invites the public to comment on the content of this final rule,
as well as provide comments that will inform the future rulemaking that
will offer the next steps towards better nutrition for America's school
children.

Procedural Matters

Executive Order 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This final rule has been determined to be economically
significant and was reviewed by the Office of Management and Budget
(OMB) in conformance with Executive Order 12866.

Regulatory Impact Analysis

As required for all rules that have been designated as Significant
by the Office of Management and Budget, a Regulatory Impact Analysis
(RIA) was developed for this final rule. It follows this rule as an
Appendix. The following summarizes the conclusions of the regulatory
impact analysis:
Need for Action: This final rule will establish transitional
standards to support the continued provision of nutritious school meals
while USDA updates the meal pattern standards to reflect the Dietary
Guidelines for Americans, 2020-2025, and as schools recover from the
pandemic. USDA will develop updated standards through a new rulemaking
for implementation in school year (SY) 2024-2025 and beyond, based on
current nutrition science and public input on how to build on the
success of school meals in supporting healthy eating and improved
dietary outcomes. The COVID-19 pandemic impacted the entire Nation, but
schools faced challenges adjusting to widespread closures, online and
hybrid learning, and supply chain issues that affected the school meal
service and the broader school environment. Many operators will need to
reacquaint themselves with the 2012 standards after several years of
Congressional, regulatory, and administrative interventions, followed
by two years of meal pattern flexibilities provided in response to the
public health emergency. As a result of these interventions and COVID-
19 nationwide waivers, the 2012 whole grain-rich requirement and Sodium
Target 2 have not been fully implemented, and the 2012 milk
requirements have not been fully implemented in over five years. This
final rule establishes transitional requirements for milk whole grains,
and sodium to respond to the needs of schools as they recover from the
challenges of COVID-19, while also taking measured steps towards
improving nutritional quality of meals offered.
Benefits: This rule builds on the major achievements schools have
already made improving school meals to support healthy diets for school
children. Schools would face extreme challenges immediately returning
to the 2012 standards from COVID-19 operations, which would be
compounded by supply chain disruptions and staffing concerns. This rule
will implement a modified Sodium Target 1A for NSLP, which will support
schools with a gradual transition to lower sodium meals. USDA also
increased the percentage of whole grain-rich offerings required from 50
percent in the proposed rule to 80 percent in this final rule to
recognize the need to continued progress in school meal nutrition. This
rule provides achievable standards while USDA engages in more
comprehensive long-term rulemaking to further update the meal
standards.
Costs: USDA estimates this final rule will save schools $0.15 cent
per meal or $1.1 billion annually compared to directly moving to the
2012 standards for milk, whole grains, and sodium in SY 2022-2023.
Absent this rule it is estimated to cost $1.3 billion annually or $0.18
per meal for schools to move immediately to the 2012 milk, whole
grains, and sodium requirements. The increased costs to schools under
the 2012 standards are primarily due to the requirement to procure
entirely whole grain-rich offerings, which are estimated to be more
expensive than enriched items, and the stricter sodium standards, which
require additional food and labor costs to support scratch cooking as
industry currently does not offer enough compliant products. Relative
to current school year operations, this rule is estimated to

[[Page 7004]]

potentially increase costs to schools by $187 million annually or about
$0.03 per meal. These are mostly driven by the move to the requirement
that at least 80 percent of grains offered must be whole grain-rich and
increases in food and labor costs for schools that still need to meet
Sodium Target 1 and Target 1A. Costs to offer low-fat, flavored milk as
an option are due to low-fat, flavored milk being slightly more
expensive than fat-free, flavored varieties.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, it has
been certified that this rule would not have a significant impact on a
substantial number of small entities. Because this interim final rule
adds flexibility to current Child Nutrition Program regulations, the
changes implemented through this final rule are expected to benefit
small entities operating meal programs under 7 CFR parts 210, 215, 220,
and 226.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as a major rule, as defined by 5 U.S.C. 804(2).

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments, and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a cost
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local or tribal
governments, in the aggregate, or the private sector, of $146 million
or more (when adjusted for inflation; GDP deflator source: Table 1.1.9
at <a href="http://www.bea.gov/iTable">http://www.bea.gov/iTable</a>) in any one year. When such a statement is
needed for a rule, Section 205 of the UMRA generally requires the
Department to identify and consider a reasonable number of regulatory
alternatives and adopt the most cost effective or least burdensome
alternative that achieves the objectives of the rule.
This final rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local and
Tribal governments, or the private sector of $146 million or more in
any one year. Thus, the rule is not subject to the requirements of
sections 202 and 205 of the UMRA.

Executive Order 12372

The NSLP, SMP, SBP, and the CACFP are listed in the Catalog of
Federal Domestic Assistance under NSLP No. 10.555, SMP No. 10.556, SBP
No. 10.553, and CACFP No. 10.558, respectively, and are subject to
Executive Order 12372, which requires intergovernmental consultation
with State and local officials (see 2 CFR chapter IV). Since the Child
Nutrition Programs are State-administered, USDA's FNS Regional Offices
have formal and informal discussions with State and local officials,
including representatives of Indian Tribal Organizations, on an ongoing
basis regarding program requirements and operations. This provides USDA
with the opportunity to receive regular input from program
administrators and contributes to the development of feasible program
requirements.

Federalism Summary Impact Statement

Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under Section (6)(b)(2)(B) of Executive Order 13132. The
Department has considered the impact of this final rule on State and
local governments and has determined that this rule does not have
federalism implications. Therefore, under section 6(b) of the Executive
Order, a federalism summary is not required.

Executive Order 12988, Civil Justice Reform

This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is intended to have preemptive effect
with respect to any State or local laws, regulations, or policies which
conflict with its provisions or which would otherwise impede its full
and timely implementation. This rule is not intended to have
retroactive effect. Prior to any judicial challenge to the provisions
of the interim final rule, all applicable administrative procedures
must be exhausted.

Civil Rights Impact Analysis

FNS has reviewed the final rule, in accordance with Department
Regulation 4300-004, Civil Rights Impact Analysis, to identify and
address any major civil rights impacts the final rule might have on
minorities, women, and persons with disabilities. A comprehensive Civil
Rights Impact Analysis (CRIA) was conducted on the final rule,
including an analysis of participant data and provisions contained in
the final rule. The CRIA outlines outreach and mitigation strategies to
lessen any possible civil rights impacts. The CRIA concludes by stating
that FNS believes the promulgation of this final rule will impact SFAs
and CACFP institutions and facilities by adding transitional meal
pattern standards. Additionally, participants in the NSLP, SBP, SMP,
and CACFP may be impacted if transitional meal pattern standards are
taken by SFAs and CACFP institutions and facilities. However, FNS finds
that the implementation of mitigation strategies and monitoring by the
FNS Civil Rights Division and FNS Child Nutrition Programs may lessen
these impacts. If deemed necessary, the FNS Civil Rights Division will
propose further mitigation and outreach to alleviate impacts that may
result from the implementation of the final rule.

Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments

Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments, or proposed legislation. Additionally, other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes also require
consultation.
After reviewing the final rule, the Office of Tribal Relations
(OTR) has determined that there are multiple issues that could warrant
tribal consultation such as the milk requirement and not allowing
flexibility for complete exclusion of dairy (not just lactose-free
dairy) products and inclusion of completely different traditional
sources of calcium, and the grain requirement not having flexibility
for having certain indigenous foods for carbohydrates that are not
grains (such as wild rice, amaranth, etc.).

[[Page 7005]]

Recognizing that there have been difficulties associated with the
COVID-19 pandemic and because these are transitional standards, OTR
approves the final rule on the condition that there is robust
consultation on the forthcoming proposed rule related to school
nutrition standards to ensure that indigenous views and dietary
concerns are fully taken into account.
If a tribe requests consultation in the future, FNS will work with
the Office of Tribal Relations to ensure meaningful consultation is
provided.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part
1320) requires the Office of Management and Budget (OMB) to approve all
collections of information by a Federal agency before they can be
implemented. Respondents are not required to respond to any collection
of information unless it displays a current valid OMB control number.
Send comments to the Office of Information and Regulatory Affairs,
OMB, Attention: Desk Officer for FNS, Washington, DC 20503. Comments
are invited on: (a) Whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information shall have practical utility; (b) the
accuracy of the agency's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used; (c) ways to enhance the quality, utility, and
clarity of the information to be collected; and (d) ways to minimize
the burden of the collection of information on those who are to
respond, including use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology. All responses to this notice will be
summarized and included in the request for OMB approval. All comments
will also become a matter of public record.
This rule contains information collections that have been approved
by OMB under OMB #0584-0006 (7 CFR part 210, National School Lunch
Program), expires 7/31/2023; OMB #0584-0012 (7 CFR part 220, School
Breakfast Program), expires 4/30/2022; OMB #0584-0005 (7 CFR part 215,
Special Milk Program for Children), expires 7/31/2022; and OMB #0584-
0055 (7 CFR part 226, Child and Adult Care Food Program), expired 2/29/
2020. Although the CACFP information collection has expired, USDA is
planning to reinstate it and has published a 60-Day Notice. Revisions
are underway and USDA expects to submit it to OMB for review soon. The
provisions of this rule do not impose new or existing information
collection requirements subject to approval by the OMB under the
Paperwork Reduction Act of 1994.

E-Government Act Compliance

The Department is committed to complying with the E-Government Act
of 2002, to promote the use of the internet and other information
technologies to provide increased opportunities for citizen access to
Government information and services, and for other purposes.

List of Subjects

7 CFR Part 210

Grant programs--education, Grant programs--health, Infants and
children, Nutrition, Penalties, Reporting and recordkeeping
requirements, School breakfast and lunch programs, Surplus agricultural
commodities.

7 CFR Part 215

Food assistance programs, Grant programs--education, Grant
program--health, Infants and children, Milk, Reporting and
recordkeeping requirements.

7 CFR Part 220

Grant programs--education, Grant programs--health, Infants and
children, Nutrition, Reporting and recordkeeping requirements, School
breakfast and lunch programs.

7 CFR Part 226

Accounting, Aged, Day care, Food assistance programs, Grant
programs, Grant programs--health, Individuals with disabilities,
Infants and children, Intergovernmental relations, Loan programs,
Reporting and recordkeeping requirements, Surplus agricultural
commodities.

Accordingly, 7 CFR parts 210, 215, 220, and 226 are amended as
follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

0
1. The authority citation for 7 CFR part 210 continues to read as
follows:

Authority: 42 U.S.C. 1751-1760, 1779.

0
2. In Sec. 210.10:
0
a. Revise the table in paragraph (c) introductory text; and
0
b. Revise paragraphs (c)(2)(iv)(B), (d)(1)(i), and (f)(3).
The revisions read as follows:

Sec. 210.10 Meal requirements for lunches and requirements for
afterschool snacks.

* * * * *
(c) * * *

Table 1 to Paragraph (c) Introductory Text--Lunch Meal Pattern
----------------------------------------------------------------------------------------------------------------
Grades K-5 Grades 6-8 Grades 9-12
----------------------------------------------------------------------------------------------------------------
Food components Amount of Food \a\ per Week
-----------------------------------------------
(minimum per day)
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \b\............................................... 2\1/2\ (\1/2\) 2\1/2\ (\1/2\) 5 (1)
Vegetables (cups) \b\........................................... 3\3/4\ (\3/4\) 3\3/4\ (\3/4\) 5 (1)
Dark green \c\.............................................. \1/2\ \1/2\ \1/2\
Red/Orange \c\.............................................. \3/4\ \3/4\ 1\1/4\
Beans and peas (legumes) \c\................................ \1/2\ \1/2\ \1/2\
Starchy \c\................................................. \1/2\ \1/2\ \1/2\
Other \c\ \d\................................................... \1/2\ \1/2\ \3/42\
Additional Vegetables to Reach Total \e\........................ 1 1 1\1/2\
Grains (oz eq) \f\.............................................. 8-9 (1) 8-10 (1) 10-12 (2)
Meats/Meat Alternates (oz eq)................................... 8-10 (1) 9-10 (1) 10-12 (2)
Fluid milk (cups) \g\........................................... 5 (1) 5 (1) 5 (1)
----------------------------------------------------------------------------------------------------------------
Other Specifications: Daily Amount Based on the Average for a 5-Day Week
----------------------------------------------------------------------------------------------------------------
Min-max calories (kcal) \h\..................................... 550-650 600-700 750-850
Saturated fat (% of total calories) \h\......................... <10 <10 <10

[[Page 7006]]

Sodium Interim Target 1 (mg) \h\................................ <=1,230 <=1,360 <=1,420
Sodium Interim Target 1A (mg) \h\ \i\........................... <=1,110 <=1,225 <=1,280
----------------------------------------------------------------------------------------------------------------
Trans fat \h\................................................... Nutrition label or manufacturer specifications
must indicate zero grams of trans fat per
serving.
----------------------------------------------------------------------------------------------------------------
\a\ Food items included in each group and subgroup and amount equivalents. Minimum creditable serving is \1/8\
cup.
\b\ One-quarter cup of dried fruit counts as \1/2\ cup of fruit; 1 cup of leafy greens counts as \1/2\ cup of
vegetables. No more than half of the fruit or vegetable offerings may be in the form of juice. All juice must
be 100% full-strength.
\c\ Larger amounts of these vegetables may be served.
\d\ This category consists of ``Other vegetables'' as defined in paragraph (c)(2)(iii)(E) of this section. For
the purposes of the NSLP, the ``Other vegetables'' requirement may be met with any additional amounts from the
dark green, red/orange, and beans/peas (legumes) vegetable subgroups as defined in paragraph (c)(2)(iii) of
this section.
\e\ Any vegetable subgroup may be offered to meet the total weekly vegetable requirement.
\f\ At least 80 percent of grains offered weekly must meet the whole grain-rich criteria specified in FNS
guidance, and the remaining grain items offered must be enriched.
\g\ All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk may be flavored or flavored,
provided that unflavored milk is offered at each meal service.
\h\ Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within
the specifications for calories, saturated fat, trans fat, and sodium. Foods of minimal nutritional value and
fluid milk with fat content greater than 1 percent are not allowed.
\i\ Sodium Interim Target 1A must be met no later than July 1, 2023 (SY 2023-2024).

* * * * *
(2) * * *
(iv) * * *
(B) Daily and weekly servings. The grains component is based on
minimum daily servings plus total servings over a 5-day school week.
Schools serving lunch 6 or 7 days per week must increase the weekly
grains quantity by approximately 20 percent (\1/5\) for each additional
day. When schools operate less than 5 days per week, they may decrease
the weekly quantity by approximately 20 percent (\1/5\) for each day
less than 5. The servings for biscuits, rolls, muffins, and other
grain/bread varieties are specified in FNS guidance. Eighty (80)
percent of grains offered weekly must meet the whole grain-rich
criteria specified in FNS guidance, and the remaining grain items
offered must be enriched.
* * * * *
(d) * * *
(1) * * *
(i) Schools must offer students a variety (at least two different
options) of fluid milk. All milk must be fat-free (skim) or low-fat (1
percent fat or less). Milk with higher fat content is not allowed. Low-
fat or fat-free lactose-free and reduced-lactose fluid milk may also be
offered. Milk may be unflavored or flavored, provided that unflavored
milk is offered at each meal service.
* * * * *
(f) * * *
(3) Sodium. School lunches offered to each age/grade group must
meet, on average over the school week, the levels of sodium specified
in the following table within the established deadlines:

Table 4 to Paragraph (f)(3)--National School Lunch Program Sodium Timeline & Limits
----------------------------------------------------------------------------------------------------------------
Interim target 1A:
Age/grade group Target 1: effective July effective July 1, 2023
1, 2022 (mg) (mg)
----------------------------------------------------------------------------------------------------------------
K-5......................................................... <=1,230 <=1,110
6-8......................................................... <=1,360 <=1,225
9-12........................................................ <=1,420 <=1,280
----------------------------------------------------------------------------------------------------------------

* * * * *

Sec. 210.11 [Amended]

0
3. In Sec. 210.11, in paragraphs (m)(1)(ii), (m)(2)(ii), and
(m)(3)(ii) add the words ``flavored or'' before the word
``unflavored''.

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

0
4. The authority for part 215 continues to read as follows:

Authority: 42 U.S.C. 1772 and 1779.

0
5. In Sec. 215.7a, revise paragraphs (a) introductory text and (a)(3)
to read as follows:

Sec. 215.7a Fluid milk and non-dairy milk substitute requirements.

* * * * *
(a) Types of fluid milk. All fluid milk served in the Program must
be pasteurized fluid milk which meets State and local standards for
such milk, 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. Lactose-free and reduced-lactose milk that
meet the fat content and flavor specifications for each age group may
also be offered. Fluid milk must also meet the following requirements:
* * * * *
(3) Children 6 years old and older. Children 6 years old and older
must be served low-fat (1 percent fat or less) or fat-free (skim) milk.
Milk may be flavored or unflavored.
* * * * *

PART 220--SCHOOL BREAKFAST PROGRAM

0
6. The authority citation for part 220 continues to read as follows:

Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.

0
7. In Sec. 220.8, revise the table in paragraph (c) introductory text
and revise paragraphs (c)(2)(iv)(B), (d), and (f)(3) to read as
follows:

[[Page 7007]]

Sec. 220.8 Meal requirements for breakfasts.

* * * * *
(c) * * *

Table 1 to Paragraph (c) Introductory Text--Breakfast Meal Pattern
----------------------------------------------------------------------------------------------------------------
Grades K-5 Grades 6-8 Grades 9-12
----------------------------------------------------------------------------------------------------------------
Food components Amount of Food \a\ per Week
-----------------------------------------------
(minimum per day)
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \b\ \c\........................................... 5 (1) 5 (1) 5 (1)
Vegetables (cups) \b\ \c\....................................... 0 0 0
Dark green.................................................. 0 0 0
Red/Orange.................................................. 0 0 0
Beans and peas (legumes).................................... 0 0 0
Starchy..................................................... 0 0 0
Other....................................................... 0 0 0
Grains (oz eq) \d\.............................................. 7-10 (1) 8-10 (1) 9-10 (1)
Meats/Meat Alternates (oz eq) \e\............................... 0 0 0
Fluid milk \f\ (cups)........................................... 5 (1) 5 (1) 5 (1)
----------------------------------------------------------------------------------------------------------------
Other Specifications: Daily Amount Based on the Average for a 5-Day Week
----------------------------------------------------------------------------------------------------------------
Min-max calories (kcal) \g\ \h\................................. 350-500 400-550 450-600
Saturated fat (% of total calories) \h\......................... <10 <10 <10
Sodium Target 1 (mg)............................................ <=540 <=600 <=640
----------------------------------------------------------------------------------------------------------------
Trans fat \h\................................................... Nutrition label or manufacturer specifications
must indicate zero grams of trans fat per
serving.
----------------------------------------------------------------------------------------------------------------
\a\ Food items included in each group and subgroup and amount equivalents. Minimum creditable serving is \1/8\
cup.
\b\ One-quarter cup of dried fruit counts as \1/2\ cup of fruit; 1 cup of leafy greens counts as \1/2\ cup of
vegetables. No more than half of the fruit or vegetable offerings may be in the form of juice. All juice must
be 100% full-strength.
\c\ Schools must offer 1 cup of fruit daily and 5 cups of fruit weekly. Vegetables may be substituted for
fruits, but the first two cups per week of any such substitution must be from the dark green, red/orange,
beans/peas (legumes), or ``Other vegetables'' subgroups, as defined in Sec. 210.10(c)(2)(iii) of this
chapter.
\d\ At least 80 percent of grains offered weekly must meet the whole grain-rich criteria specified in FNS
guidance, and the remaining grain items offered must be enriched. Schools may substitute 1 oz. eq. of meat/
meat alternate for 1 oz. eq. of grains after the minimum daily grains requirement is met.
\e\ There is no meat/meat alternate requirement.
\f\ All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk may be unflavored or
flavored, provided that unflavored milk is offered at each meal service.
\g\ The average daily calories for a 5-day school week must be within the range (at least the minimum and no
more than the maximum values).
\h\ Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within
the specifications for calories, saturated fat, trans fat, and sodium. Foods of minimal nutritional value and
fluid milk with fat content greater than 1 percent milk fat are not allowed.

* * * * *
(2) * * *
(iv) * * *
(B) Daily and weekly servings. The grains component is based on
minimum daily servings plus total servings over a 5-day school week.
Schools serving breakfast 6 or 7 days per week must increase the weekly
grains quantity by approximately 20 percent (\1/5\) for each additional
day. When schools operate less than 5 days per week, they may decrease
the weekly quantity by approximately 20 percent (\1/5\) for each day
less than 5. The servings for biscuits, rolls, muffins, and other
grain/bread varieties are specified in FNS guidance. At least 80
percent of grains offered weekly must meet the whole grain-rich
criteria specified in FNS guidance, and the remaining grain items
offered must be enriched.
* * * * *
(d) Fluid milk requirement. Breakfast must include a serving of
fluid milk as a beverage or on cereal or used in part for each purpose.
Schools must offer students a variety (at least two different options)
of fluid milk. All fluid milk must be fat-free (skim) or low-fat (1
percent fat or less). Milk with higher fat content is not allowed. Low-
fat or fat-free lactose-free and reduced-lactose fluid milk may also be
offered. Milk may be flavored or unflavored, provided that unflavored
milk is offered at each meal service. Schools must also comply with
other applicable fluid milk requirements in Sec. 210.10(d) of this
chapter.
* * * * *
(f) * * *
(3) Sodium. School breakfasts offered to each age/grade group must
meet, on average over the school week, the levels of sodium specified
in the following table:

Table 3 to Paragraph (f)(3)--School Breakfast Program Sodium Limits
------------------------------------------------------------------------
Age/grade group Target 1 (mg)
------------------------------------------------------------------------
K-5..................................................... <=540
6-8..................................................... <=600
9-12.................................................... <=640
------------------------------------------------------------------------

* * * * *

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

0
8. The authority citation for part 226 continues to read as follows:

Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell
National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a,
1765 and 1766).

0
9. In Sec. 226.20, revise paragraph (a)(1) and the tables to
paragraphs (c)(1) through (3) to read as follows:

Sec. 226.20 Requirements for meals.

(a) * * *

[[Page 7008]]

(1) Fluid milk. Fluid milk must be served as a beverage or on
cereal, or a combination of both. Lactose-free and reduced-lactose milk
that meet the fat content and flavor specifications for each age group
may also be offered.
(i) Children 1 year old. Unflavored whole milk must be served.
(ii) Children 2 through 5 years old. Either unflavored low-fat (1
percent) or unflavored fat-free (skim) milk must be served.
(iii) Children 6 years old and older. Low-fat (1 percent fat or
less) or fat-free (skim) milk must be served. Milk may be unflavored or
flavored.
(iv) Adults. Low-fat (1 percent fat or less) or fat-free (skim)
milk must be served. Milk may be unflavored or flavored. Six ounces
(weight) or \3/4\ cup (volume) of yogurt may be used to fulfill the
equivalent of 8 ounces of fluid milk once per day. Yogurt may be
counted as either a fluid milk substitute or as a meat alternate, but
not as both in the same meal.
* * * * *
(c) * * *
(1) * * *

Table 2 to Paragraph (c)(1)--Child and Adult Care Food Program Breakfast
[Select the appropriate components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum quantities
--------------------------------------------------------------------------------------------------------------------------
Food components and food Ages 13-18 \2\ (at-
items \1\ risk afterschool
Ages 1-2 Ages 3-5 Ages 6-12 programs and Adult participants
emergency shelters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid Milk \3\............... 4 fluid ounces......... 6 fluid ounces......... 8 fluid ounces......... 8 fluid ounces........ 8 fluid ounces.
Vegetables, fruits, or \1/4\ cup.............. \1/2\ cup.............. \1/2\ cup.............. \1/2\ cup............. \1/2\ cup.
portions of both \4\.
Grains (oz. eq.) \5\ \6\ \7\ \1/2\ ounce equivalent. \1/2\ ounce equivalent. 1 ounce equivalent..... 1 ounce equivalent.... 2 ounce equivalents.
\8\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Endnotes:
\1\ Must serve all three components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool participants.
\2\ Larger portion sizes than specified may need to be served to children 13 through 18 years old to meet their nutritional needs.
\3\ Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free (skim) milk for
children two through five years old. Must be unflavored or flavored fat-free (skim) or low-fat (1 percent fat or less) milk for children 6 years old
and older and adults. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of
fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
\4\ Pasteurized full-strength juice may only be used to meet the vegetable or fruit requirement at one meal, including snack, per day.
\5\ At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count towards meeting the grains
requirement.
\6\ Meat and meat alternates may be used to meet the entire grains requirement a maximum of three times a week. One ounce of meat and meat alternates is
equal to one ounce equivalent of grains.
\7\ Refer to FNS guidance for additional information on crediting different types of grains.
\8\ Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other sugars per 100 grams of dry
cereal).

(2) * * *

Table 3 to Paragraph (c)(2)--Child and Adult Care Food Program Lunch and Supper
[Select the appropriate components for a reimbursable meal]
---------------------------------------------------------------------------

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.