Nutrition Standards in the National School Lunch and School Breakfast Programs, 4088-4167 [2012-1010]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 4088-4167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1010]



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Vol. 77

Thursday,

No. 17

January 26, 2012

Part II





Department of Agriculture





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 Food and Nutrition Service





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7 CFR Parts 210 and 220





 Nutrition Standards in the National School Lunch and School Breakfast 
Programs; Final Rule

Federal Register / Vol. 77 , No. 17 / Thursday, January 26, 2012 / 
Rules and Regulations

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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

[FNS-2007-0038]
RIN 0584-AD59


Nutrition Standards in the National School Lunch and School 
Breakfast Programs

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

ACTION: Final rule.

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SUMMARY: This final rule updates the meal patterns and nutrition 
standards for the National School Lunch and School Breakfast Programs 
to align them with the Dietary Guidelines for Americans. This rule 
requires most schools to increase the availability of fruits, 
vegetables, whole grains, and fat-free and low-fat fluid milk in school 
meals; reduce the levels of sodium, saturated fat and trans fat in 
meals; and meet the nutrition needs of school children within their 
calorie requirements. These improvements to the school meal programs, 
largely based on recommendations made by the Institute of Medicine of 
the National Academies, are expected to enhance the diet and health of 
school children, and help mitigate the childhood obesity trend.

DATES: Effective date: This rule is effective March 26, 2012.
    Compliance date: Compliance with the provisions of this rule must 
begin July 1, 2012, except as otherwise noted on the implementation 
table provided in the preamble under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: William Wagoner or Marisol Aldahondo-
Aponte, Policy and Program Development Branch, Child Nutrition 
Division, Food and Nutrition Service at (703) 305-2590.

SUPPLEMENTARY INFORMATION:

Executive Summary

    This final rule modifies several key proposed requirements to 
respond to commenter concerns and facilitate successful implementation 
of the requirements at the State and local levels. The rule phases in 
many of the changes to help ensure that all stakeholders--the children, 
the schools, and their supply chains--have time to adapt. Most notably, 
this final rule provides additional time for implementation of the 
breakfast requirements and modifies those requirements in a manner that 
reduces the estimated costs of breakfast changes, as compared to the 
proposed rule. As a result, the final rule is estimated to add $3.2 
billion to school meal costs over 5 years, considerably less than the 
estimated cost of the proposed rule.
    When considered in the context of other related provisions of the 
Healthy Hunger-Free Kids Act (HHFKA) of 2010, sufficient resources are 
expected to be available to school food authorities to cover the 
additional costs of updated meal offerings to meet the new standards.
    Specifically, in addition to improving nutritional quality, the 
HHFKA mandated that beginning July 1, 2011, revenue streams for a la 
carte foods relative to their costs be at least as high as the revenue 
streams for Program meals compared to their costs. Consequently schools 
should receive over $1 billion a year in new food revenues beginning in 
School Year 2011-2012. That will help schools work toward implementing 
the new standards effective the following year, i.e., July 1, 2012. In 
addition, USDA estimates that the ``School Food Authorities revenues'' 
rule will increase participation in school meal programs by 800,000 
children.
    In addition, the six-cent per lunch performance-based reimbursement 
increase included in the HHFKA will provide additional revenue 
beginning October 1, 2012. The Congressional Budget Office estimated 
about $1.5 billion over 5 years will be provided in performance-based 
funding.

I. Background

    The Richard B. Russell National School Lunch Act (NSLA) in Section 
9(a)(4), 42 U.S.C. 1758(a)(4), requires that school meals reflect the 
latest ``Dietary Guidelines for Americans'' (Dietary Guidelines). In 
addition, section 201 of the Healthy, Hunger-Free Kids Act of 2010 
(Pub. L. 111-296, HHFKA) amended Section 4(b) of the NSLA, 42 U.S.C. 
1753(b), to require the Department of Agriculture (USDA) to issue 
regulations to update the meal patterns and nutrition standards for 
school lunches and breakfasts based on the recommendations issued by 
the Food and Nutrition Board of the National Research Council of the 
National Academies of Science, part of the Institute of Medicine (IOM). 
On January 13, 2011, USDA published a proposed rule in the Federal 
Register (76 FR 2494) to update the meal patterns and nutrition 
standards for the National School Lunch Program (NSLP) and the School 
Breakfast Program (SBP) to align them with the 2005 Dietary Guidelines.
    The proposed rule sought to increase the availability of fruits, 
vegetables, whole grains, and fat-free and low-fat fluid milk in the 
school menu; reduce the levels of sodium, saturated fat and trans fat 
in school meals; and meet the nutrition needs of school children within 
their calorie requirements. The intent of the proposed rule was to 
provide nutrient-dense meals (high in nutrients and low in calories) 
that better meet the dietary needs of school children and protect their 
health. The proposed changes, designed for meals offered to school 
children in grades Kindergarten (K) to 12, were largely based on the 
IOM recommendations set forth in the report ``School Meals: Building 
Blocks for Healthy Children'' (October 2009).
    In summary, the January 2011 proposed rule sought to improve 
lunches and breakfasts by requiring schools to:
     Offer fruits and vegetables as two separate meal 
components;
     Offer fruit daily at breakfast and lunch;
     Offer vegetables daily at lunch, including specific 
vegetable subgroups weekly (dark green, orange, legumes, and other as 
defined in the 2005 Dietary Guidelines) and a limited quantity of 
starchy vegetables throughout the week;
     Offer whole grains: half of the grains would be whole 
grain-rich upon implementation of the rule and all grains would be 
whole-grain rich two years post implementation;
     Offer a daily meat/meat alternate at breakfast;
     Offer fluid milk that is fat-free (unflavored and 
flavored) and low-fat (unflavored only);
     Offer meals that meet specific calorie ranges for each 
age/grade group;
     Reduce the sodium content of meals gradually over a 10-
year period through two intermediate sodium targets at two and four 
years post implementation;
     Prepare meals using food products or ingredients that 
contain zero grams of trans fat per serving;
     Require students to select a fruit or a vegetable as part 
of the reimbursable meal;
     Use a single food-based menu planning approach; and
     Use narrower age/grade groups for menu planning.
    In addition, the proposed rule sought to improve school meals by 
requiring State agencies (SAs) to:
     Conduct a nutritional review of school lunches and 
breakfasts as part of the administrative review process;
     Determine compliance with the meal patterns and dietary 
specifications based on a review of menu and

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production records for a two-week period; and
     Review school lunches and breakfasts every 3 years, 
consistent with the HHFKA.
    The 2010 Dietary Guidelines were released on January 31, 2011, 
after USDA published the proposed rule. On March 21, 2011 USDA issued a 
Notice in the Federal Register (76 FR 15225) seeking public comment on 
the need to modify the proposed rule to reflect the 2010 Dietary 
Guidelines recommendations to consume red-orange vegetables and protein 
subgroups: (1) Seafood; (2) meat, poultry and eggs, and (3) nuts, 
seeds, and soy products. The public comments to the Notice (76 FR 
15225) were added to the proposed rule docket and all comments 
associated with the proposed rule were considered in preparing this 
final rule.
    USDA received a total of 133,268 public comments during the comment 
period January 13-April 13, 2011. This total included several single 
submissions with thousands of comments. The types of comments received 
included 7,107 unique letters, 122,715 form letters from 159 mass mail 
campaigns, 3,353 non-germane letters, and 93 duplicates. Comments were 
analyzed using computer software that facilitated the identification of 
the key issues addressed by the commenters, as well as by USDA policy 
officials.
    Although USDA considered all comments, the description and analysis 
in this final rule preamble focuses on the most frequent comments and 
those that influenced revisions to the proposed rule, and discusses 
modifications made to the proposed rule in response to public input. 
USDA greatly appreciates the public comments as they have been 
essential in developing a final rule that is expected to improve school 
meals in a sound and practical manner. To view all public comments on 
the proposed rule go to www.regulations.gov and search for public 
submissions under docket number FNS-2007-0038. A Summary of Public 
Comments is available as supporting material under the docket folder 
summary.

    Note: This final rule does not update the Pre-K school meal 
patterns. These are under review and will be updated in a future 
rulemaking amending regulations implementing the USDA's Child and 
Adult Care Food Program. However, two provisions in this final rule, 
menu planning approach and fluid milk requirements, impact Pre-K 
meals as discussed later in this preamble.

II. Public Comments and USDA Response

    USDA received comments from nutrition, health, and child advocates 
at the national, state and local levels; SAs that administer the school 
meal programs; school districts/boards; schools; school food service 
staff; superintendents, principals, and teachers; food manufacturers 
and distributors; food industry representatives; food service 
management companies; academia; nutritionists/dietitians; community 
organizations; parents and students; and many other interested groups 
and individuals. Overall, the comments provided were generally more 
supportive of the proposed rule than opposed. Comments from nutrition, 
health and child advocates; community organizations; academia; and 
parents favor the proposed rule, citing concern about the national 
childhood obesity problem and the increased likelihood of preventable 
diseases such as cardiovascular disease, high blood pressure, high 
cholesterol, stroke, and type 2 diabetes, all of which increase the 
cost of healthcare nationally. Many comments enthusiastically supported 
the increase in fruits, vegetables, whole grains, fat-free milk/low-fat 
milk in the school menus, and most other proposed changes designed to 
improve the nutritional quality of school meals.
    Comments from SAs and school food authorities (SFAs), food 
industry, industry representatives, food service management companies, 
and others in the public and private sectors associated with the 
operation of the school meals programs also supported improving school 
meals but voiced strong concerns about some aspects of the proposed 
rule. The proposed food quantities, meat/meat alternate component at 
breakfast, weekly vegetable subgroup requirement at lunch, starchy 
vegetables limit, sodium reductions, whole grains requirement, and 
frequency of administrative review were the parts of the proposal that 
prompted most of their concerns. Program operators also raised concerns 
about the rule cost and implementation timeline, the impact of the 
proposed changes on student participation in the meal programs, and the 
potential for increased plate waste if meals are not acceptable to 
students. A number of commenters suggested that USDA conduct additional 
research or pilot test the proposed changes before implementation. All 
of the above concerns are more prevalent in the SBP than the NSLP. 
Schools that operate the SBP voiced significant concern about the 
estimated 50 cents increase in food and labor costs for each 
reimbursable breakfast in FY 2015, when all the requirements will be in 
place as stated in the proposed rule.
    USDA has taken into consideration the different views expressed by 
commenters and seeks to be responsive to the concerns raised by 
stakeholders, especially those responsible for the management and day 
to day operation of the school meal programs. At the same time, we are 
mindful that the overweight and obesity epidemic affecting many 
children in America requires that all sectors of our society, including 
schools, help children make significant changes in their diet to 
improve their overall health and become productive adults. This final 
rule makes significant improvements to the NSLP and SBP to facilitate 
successful implementation of the requirements at the State and local 
levels. This final rule modifies several key proposed requirements to 
respond to commenter concerns as well as to address requirements of the 
Consolidated and Further Continuing Appropriations Act, 2012, Public 
Law 112-55. Most notably, this final rule provides additional time for 
implementation of the SBP requirements and modifies those requirements 
in a manner that reduces the estimated costs of breakfast changes, as 
compared to the proposed rule.
    No changes to the SBP meal pattern take effect immediately upon 
publication of this final rule, except limiting flavor to fat-free 
milk, and requiring the service of only fat-free and low-fat milk (the 
latter is a statutory requirement codified in the NSLA in the HHFKA. 
See the discussion on ``Milk'' for further details). Furthermore, this 
rule introduces selected requirements into the SBP beginning SY 2013-
2014 (the second year of implementation) to ease the estimated increase 
in breakfast costs and minimize impact on SBP operations. This approach 
is intended to enable program operators to concentrate on improving 
school lunches first and then focus on the breakfast changes. It also 
allows USDA to meet the statutory requirement to offer meals that 
reflect the Dietary Guidelines while being responsive to the concerns 
raised by program operators and other stakeholders. However, SFAs that 
are able to implement the new meal requirements concurrently in the SBP 
and NSLP are encouraged to do so with SA approval.
    Section G of the Regulatory Impact Analysis discusses in greater 
detail the key differences between the proposed and final rules. Most 
of the estimated reduction in cost is due to the policy changes 
discussed above, including the

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phased in breakfast meal pattern requirements and the elimination of a 
separate meat component at breakfast, as well as more modest changes to 
the lunch meal pattern requirements' grain and vegetable components. In 
addition to these policy changes, lower food inflation since 
preparation of the proposed rule cost estimate contributes to the 
reduction in the cost of the final rule compared to the proposed rule.
    The following is a summary of the key public comments on the 
proposed rule and USDA's response. Public comments unrelated to the 
specific provisions of the rule (e.g., standards for cholesterol, 
dietary fiber, artificial sweeteners, caffeine) are not discussed here 
but are addressed in the Summary of Public Comments. For a more 
detailed discussion of the public comments see the Summary of Public 
Comments posted online at www.Regulations.gov.

Menu Planning Approach

    Proposed Rule: Follow a single Food-Based Menu Planning (FBMP) 
approach.
    Comments: Nutrition, health and child advocates; community 
organizations; academia; parents; and SAs support the FBMP approach 
because it helps children easily identify the key food groups necessary 
for a well-balanced meal. According to a health advocate, FBMP also 
minimizes the opportunity to offer unhealthy foods that have been 
fortified to meet the nutrient requirements. SAs support a single menu 
planning approach as it supports a more cost effective delivery of 
training and technical assistance resources.
    However, a number of SFAs that currently use the Nutrient Standard 
Menu Planning (NSMP) and some school advocacy organizations, trade 
associations, food manufacturers, nutritionists, and other commenters 
suggested that NSMP be allowed as an option. SFAs that use NSMP claimed 
that they would still have to conduct a nutrient analysis to assess if 
they are meeting the new dietary specifications (calories, sodium, and 
saturated fat levels). Several commenters also claimed that NSMP 
schools are better able to control costs and that changing to FBMP 
would result in increased training costs. Some stated that eliminating 
NSMP decreases menu planning flexibility and menu variety.
    USDA Response: To ensure that school meals reflect the key food 
groups recommended by the Dietary Guidelines, this final rule 
establishes FBMP as the single menu planning approach for the NSLP 
(including for Pre-K meals) in SY 2012-2013. A single food-based menu 
planning approach simplifies menu planning, serves as a teaching tool 
to help children choose a balanced meal, and assures that students 
nationwide have access to key food groups recommended by the Dietary 
Guidelines. It also makes it easier for schools to communicate the meal 
improvements to parents and the community-at-large. Simplifying program 
management, training and monitoring is expected to result in program 
savings. Over 70 percent of the program operators currently use FBMP, 
and training and technical assistance resources will be available to 
help all schools successfully transition to the new meal patterns.
    In response to commenters' concerns about the estimated cost 
increase of the breakfast meal, this final rule gives those SBP program 
operators not currently using FBMP additional time to convert to this 
planning approach. SBP operators who are not currently using FBMP may 
continue with their current menu planning approach through SY 2012-
2013. However, all SBP operators must use a single FBMP approach 
beginning SY 2013-2014 (the second year of implementation).
    This final rule sets forth the new food-based meal patterns in 7 
CFR 210.10 for lunches and Sec.  220.8 for breakfasts. In order to 
accommodate the extended implementation for non-FBMP operators, this 
final rule creates a new Sec.  220.23 that restates the nutrition 
standards and menu planning approaches that apply to all SBP operators 
in SY 2012-2013 only. Individual SFAs wishing to adopt the provisions 
of Sec.  220.8 prior to the required implementation date specified 
therein may do so with the approval of the SA.
    Accordingly, this final rule implements the proposed FBMP approach 
and codifies the proposal under Sec.  210.10(a)(1)(i) of the regulatory 
text for the NSLP and Sec.  220.8(a)(1) for the SBP. Menu planning 
approaches applicable to the SBP in SY 2012-2013 are under Sec.  
220.23(a)(5).

Age/Grade Groups

    Proposed Rule: Plan lunches and breakfasts using age/grade groups 
K-5, 6-8, and 9-12.
    Comments: A number of nutrition, health and child advocates; and 
dietitians agreed that the proposed age/grade groups would result in 
more age-appropriate school meals. They also supported the provision 
allowing schools to serve the same breakfast and lunch meal patterns 
for students in grades K through 8, provided that the meals meet the 
calorie, saturated fat, and sodium standards for each the of the age/
grade groups.
    Several commenters argued the proposed meal patterns offer too much 
food, especially for young children. Some commenters recommended 
different age/grade groups, and an SA recommended that USDA retain the 
current age/grade groups. Some SFAs requested flexibility in the use of 
the age/grade groups (e.g., a one-grade level leeway). A number of 
commenters expressed concerns regarding use of the age/grade groups in 
the SBP, as schools generally serve K-12 students in the same line.
    USDA Response: This final rule requires schools to use the age/
grade groups K-5, 6-8, and 9-12 to plan menus in the NSLP upon 
implementation of this rule in SY 2012-2013. These age/grade groups 
reflect predominant school grade configurations and are consistent with 
the IOM's Dietary Reference Intake (DRI) groupings. This rule allows 
reasonable flexibility in the use of the age/grade groups and permits a 
school to use one meal pattern for students in grades K through 8 as 
food quantity requirements for groups K-5 and 6-8 overlap. In such a 
case, the school continues to be responsible for meeting the calorie, 
saturated fat, and sodium standards for each of the age/grade groups 
receiving the school meals. The following example illustrates this 
concept:
    Example: A school could offer all students in grade groups K-5 and 
6-8 the same lunch choices for the fruit, vegetable, grains, meat/meat 
alternate, and milk components because the quantity requirements are 
the same or overlap. Similarly, the calorie requirements for grades K-5 
(550-650 average calories per week) and grades 6-8 (600-700 average 
calories per week) overlap. Therefore, a school could offer both grade 
groups a range of 600-650 average calories per week to meet the 
requirement for each grade group. While the saturated fat and trans fat 
requirement are the same for both grade groups, the school must 
carefully consider the sodium requirements. The school would have to 
comply with the lower sodium standard that was developed for age/grades 
K-5 but would also meet the requirement for students in age/grades 6-8.
    In the SBP, the new age/grade groups take effect in SY 2013-2014 
(the second year of implementation) to ease the burden on program 
operators. Until then, schools have the option to continue the age/
grade group K-12 for planning breakfasts. Meals planned for the age/
grade group K-12 must meet the nutrition standards developed for that

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age/grade group, which have been moved from Sec.  220.8 to a new Sec.  
220.23 of the regulatory text.
    Accordingly, this final rule implements the proposed age/grade 
groups and codifies the proposal under Sec.  210.10(c)(1) of the 
regulatory text for the NSLP and Sec.  220.8(c)(1) for the SBP. Age/
grade groups applicable to the SBP in SY 2012-2013 are under Sec.  
220.23(b) for nutrient standards menu planning, and under Sec.  
220.23(g) for food based menu planning.

Meal Components

Fruits
    Proposed Rule: Offer fruit as a separate food component at lunch 
daily. Increase the fruit and vegetable amounts at lunch and double the 
minimum required fruit quantity at breakfast. Allow schools to offer a 
non-starchy vegetable in place of fruit/fruit juice at breakfast. Allow 
frozen fruit without added sugar only.
    Comments: There is general support for the proposal to establish 
fruit as separate food component. Stakeholders such as nutrition, 
health and child advocates supported the proposal because they are 
concerned that children are not consuming the recommended intake of 
fruits. One major health advocate noted that it is possible to 
significantly increase the quantity of fruits and vegetables in the 
school menu in a cost effective way, stating that many schools already 
exceed the current NSLP meal requirements, and noting that of thousands 
of schools participating in the Alliance for a Healthier Generation's 
Healthy School Program, 85 percent provide at least one fruit (fresh, 
canned, or frozen in fruit juice or light syrup) at breakfast and 72 
percent provide at least four non-fried, no-added-sugars fruit or 
vegetable options daily.
    However, many commenters opposed the proposed minimum required 
fruit quantities, and were particularly concerned about the fruit 
requirement for breakfast. A number of commenters stated that one cup 
of fruit at breakfast is too much for young children to consume at one 
time and will result in significant plate waste. Commenters also 
emphasized that students usually have very little time to eat breakfast 
at school and are concerned about the logistics of offering more food 
through alternative breakfast delivery methods such as Breakfast in the 
Classroom or on the bus. In general, these commenters argued that the 
proposal to double the amount of fruit at breakfast would contribute to 
higher costs for food, labor, equipment, and storage.
    Regarding the types of fruit to be offered, several commenters 
supported the proposed limitation on added sugar in frozen fruit to 
limit the sources of discretionary calories. Some commenters 
recommended a prohibition on canned fruit in light syrup. Some program 
operators asked how to credit whole fresh fruit, and other commenters 
requested that the quantities in the meal patterns be changed from cups 
to servings to better account for fresh whole fruit. A few suggested 
that USDA adopt the HealthierUS School Challenge Gold Level requirement 
to serve fresh fruit twice per week with school meals.
    USDA Response: This final rule establishes fruits and vegetables as 
separate food components in the NSLP and adds a fruits requirement at 
lunch beginning SY 2012-2013. The intent of the new requirements is to 
promote the consumption of these fruits, as recommended by the Dietary 
Guidelines. Fruits (and vegetables) that are prepared without added 
solid fats, sugars, refined starches, and sodium are nutrient rich 
foods and supply important nutrients that are under-consumed by school 
children in the United States (including potassium and dietary fiber) 
with relatively little calories.
    This rule also gives program operators additional time to meet the 
required minimum fruit quantity increase in the SBP. Schools are 
required to offer 1 cup of fruit to all age/grade groups at breakfast 
beginning in SY 2014-2015 (the third year of implementation). This 
modification gives program operators more time to prepare for this 
important change to SBP menus. This rule also gives schools the option 
to offer vegetables in place of all or part of the required fruit 
component for menu flexibility and as a potential cost control measure. 
However, the first two cups per week of any such substitution must be 
from the dark green, red/orange, beans and peas (legumes) or other 
vegetable subgroups. These vegetable subgroups have been identified as 
being under-consumed by school children, according to the IOM report. 
Starchy vegetables may also be offered in substitution of fruits, once 
the first two cups offering of non-starchy vegetables have been met. 
This change to the proposed rule allows schools flexibility and the 
option to offer vegetables in place of fruit in accordance with the 
substitution protocol specified here.
    Although schools must offer the full amount of the required food 
component, to minimize the potential for food waste in the NSLP and 
SBP, all students are allowed to select \1/2\ cup of fruit for a 
reimbursable meal under Offer versus Serve (OVS), instead of requiring 
them to take the full fruit component. This change in the application 
of OVS with regard to the fruits and vegetables components is further 
discussed in ``Standards for Meals Selected by the Student (Offer 
versus Serve).''
    Schools may meet the fruit component at lunch and breakfast by 
offering fruit that is fresh; canned in fruit juice, water, or light 
syrup; frozen without added sugar, or dried. Through its USDA Foods 
Programs, USDA offers schools a range of fresh, frozen without added 
sugar, dried and canned fruits. Although 100 percent juice can be 
offered, no more than half of the per-meal fruit component may be juice 
because it lacks dietary fiber and when consumed in excess can 
contribute extra calories. Schools should offer fresh fruit whenever 
possible.
    Although some commenters suggested that the meal patterns set the 
fruit and other food requirements as servings rather than cups, this 
final rule does not adopt this suggestion, as a serving can be any 
amount of food determined by the menu planner and does not ensure 
uniformity. The 2005 Dietary Guidelines recommended amounts were given 
in cups and ounce equivalents (oz. eq.), which are standard defined 
amounts. Menu planners must continue to use the Food Buying Guide for 
Child Nutrition Programs to determine how to credit whole fruit. USDA 
will update the Food Buying Guide as soon as possible, and will also 
develop other technical assistance resources as needed.
    Accordingly, this final rule implements the proposed fruit 
requirements, with modifications, and codifies them under Sec.  
210.10(c) for the NSLP and under Sec.  220.8(c) for the SBP. Fruit 
requirements applicable to the SBP in SY 2012-2013 are under Sec.  
220.23(g).

Vegetables

    Proposed Rule: Offer vegetables as a separate food component at 
lunch daily. Increase the variety of vegetables over the week to 
include the following subgroups: dark green, orange, legumes, and other 
as defined in the Dietary Guidelines. Limit starchy vegetables at lunch 
to 1 cup per week for all age/grade groups. Allow non-starchy 
vegetables in place of fruit at breakfast.
    Comments: Nutrition, health and child advocates; community 
organizations; academia; and parents welcomed the proposal to divide 
fruits and vegetables into two separate components and expressed 
support for the proposed weekly vegetable requirements. Some of these

[[Page 4092]]

commenters stated the proposed increase in vegetable variety and 
quantity should positively impact overall consumption.
    State and local program operators, however, suggested that the 
vegetable subgroups be encouraged, rather than required (similar to the 
approach in the HealthierUS School Challenge guidelines). Some 
commenters stated that the vegetable subgroup requirements are too 
complicated. Others argued that children will not eat vegetables they 
are not familiar with and, therefore, the vegetable subgroup 
requirements will result in plate waste. Several commenters expressed 
concern that procuring some vegetable subgroups will be difficult and 
costly during specific times of the year in certain parts of the 
country. Others requested clarification regarding when beans should be 
considered a legume versus a meat alternate.
    Many State and local program operators opposed the starchy 
vegetable limit. They argued that all vegetables should be encouraged, 
and that a limit on starchy vegetables will lead to a decrease in 
vegetable consumption, or a decrease in participation in the NSLP. Some 
suggested that the weekly limit only apply to potatoes. Several 
suggested that instead of limiting starchy vegetables, USDA should 
prohibit French fries or deep-fried preparation methods for all 
vegetables. Others requested gradual introduction of the weekly limit 
on starchy vegetables. Many program operators argued that white 
potatoes are inexpensive and would need to be replaced by more 
expensive fruits and vegetables, which will be a costly strain on 
school/state budgets. A few asked that starchy vegetables in mixed 
dishes, such as soups, not count towards the weekly starchy vegetable 
limit.
    Nutrition and health advocates favored allowing non-starchy 
vegetables in place of fruit in the SBP. However, numerous commenters 
opposed disallowing starchy vegetables at breakfast. These commenters, 
including SFAs, food industry, and some parents, stated that starchy 
vegetables such as potatoes are affordable and popular, and complement 
many breakfast dishes. They also noted that potatoes supply potassium 
and other minerals, vitamins and fiber, and are naturally low in fat 
and sodium. Many stakeholders suggested that USDA ease the proposed 
restrictions on starchy vegetables.
    Program operators also addressed the use of salad bars to meet the 
vegetable requirement. They stated that salad bars are good ways to 
serve a wide variety of fruits and vegetables and are an effective 
strategy to increase children's consumption of these food groups. 
However, they expressed concern that the proposed vegetable 
requirements increase challenges with or could discourage the use of 
self-serve salad bars. Schools asked how to determine if the required 
foods/portions are being served.
    USDA Response: This final rule establishes vegetables as a separate 
food component in the NSLP, and requires schools to offer all the 
vegetable subgroups identified by the 2010 Dietary Guidelines (dark 
green, red/orange, beans and peas (legumes), starchy, and other) over 
the course of the week at minimum required quantities as part of the 
lunch menus in SY 2012-2013. As required by the Consolidated and 
Further Continuing Appropriations Act, 2012, Public Law 112-55 (FY 2012 
Agriculture Appropriations Act), we are removing the proposed rule 
limit on starchy vegetables, and instead requiring schools to offer at 
least minimum quantities of all vegetable subgroups in the NSLP over 
the course of the week. This change encourages consumption from all 
vegetable subgroups, and is consistent with the Dietary Guidelines' 
recommendation to increase variety in vegetable consumption. In 
addition, to be consistent with the 2010 Dietary Guidelines 
classification of vegetable subgroups, this final rule expands the 
proposed orange vegetable subgroup to include red/orange vegetables. 
USDA asked commenters about this change in the vegetable subgroups in 
the Notice published by USDA in the Federal Register (76 CFR 15225) on 
March 21, 2011 and there was no public opposition.
    This final rule also allows schools the option to offer vegetables 
in place of all or part of the fruits requirement at breakfast 
beginning July 1, 2014. This is consistent with the Dietary Guidelines' 
recommendation to eat a variety of vegetables, especially dark green, 
red and orange vegetables, and beans and peas (legumes). This 
recommendation is applicable to the school meals because most 
vegetables and fruits are major contributors of nutrients that are 
under-consumed in the United States, including potassium and dietary 
fiber. Consumption of vegetables and fruits is also associated with 
reduced risk of many chronic diseases, including obesity, heart attack, 
stroke, and cancer. By providing more and a variety of vegetables in a 
nutrient-dense form (without added solid fats, sugars, refined 
starches, and sodium), schools help students obtain important nutrients 
and maintain a healthy weight.
    This final rule does not implement the proposed rule limitation on 
servings of starchy vegetables offered as part of the lunch and 
breakfast reimbursable meals. This change is in response to commenters' 
concerns and the requirements of the FY 2012 Agriculture Appropriations 
Act, which specifically prevented USDA from adopting the IOM 
recommendation for setting maximum limits on starchy vegetables, 
providing for fiscal year 2012 USDA appropriations. Therefore, schools 
are allowed to offer any vegetable subgroup identified by the 2010 
Dietary Guidelines to meet the vegetables component required for each 
reimbursable school meal. The vegetable quantities in the lunch meal 
pattern have been modified to reflect this change to the proposal while 
remaining consistent with the Dietary Guidelines' focus on increasing 
the intake of vegetables that are under-consumed.
    Commenters asked USDA to clarify when to credit beans and peas 
(legumes) toward the vegetable component. Local menu planners decide 
how to incorporate beans and peas (legumes) into the school meal but 
may not offer one serving of beans and peas (legumes) to meet the 
requirements for both vegetables and meat/meat alternate components. 
Beans and peas (legumes) can be credited toward the vegetable component 
because they are excellent sources of dietary fiber and nutrients such 
as folate and potassium. These nutrients are often low in the diets of 
many Americans. Because of their high nutrient content and low cost, 
USDA encourages menu planners to include beans and peas (legumes) in 
the school menu regularly, either as a vegetable or as a meat alternate 
(as discussed later). Some foods commonly referred to as beans and peas 
(e.g., green peas, green lima beans, and green (string) beans) are not 
considered part of the beans and peas subgroup because their nutrient 
profile is dissimilar. More information on the use and categorization 
of beans and peas (legumes) is available online at https://www.choosemyplate.gov/foodgroups/proteinfoods_beanspeas.html.
    In response to commenter questions about how to use salad bars to 
meet the new meal requirements, the Department would like to emphasize 
that schools may continue to use salad bars to enhance the variety of 
vegetables in the school menu. See FNS memorandum SP 02-2010--Revised 
(January 21, 2011) for more information on how salad bars can be used 
effectively as part of the reimbursable meals. The memorandum is 
available online at https://www.fns.usda.gov/cnd/governance/

[[Page 4093]]

Policy-Memos/2011/SP02-2011revised--os.pdf.
    As with the proposed rule, this final rule allows schools to use 
fresh, frozen, and canned products to meet the vegetable requirement. 
Schools have access to nutritious vegetable choices through USDA Foods. 
For example, USDA Foods offers only reduced sodium canned vegetables at 
no more than 140 mg of sodium per half-cup serving, which is in line 
with the 2010 Dietary Guidelines. Schools also have the option to order 
frozen vegetables with no added salt, including green beans, carrots, 
corn, peas, and sweet potatoes.
    Accordingly, this final rule implements the proposed vegetables 
requirements, with modifications, and codifies them under Sec.  
210.10(c) for the NSLP and under Sec.  220.8(c) for the SBP. Vegetable 
requirements applicable to the SBP in SY 2012-2013 are under Sec.  
220.23(g).

Grains

    Proposed Rule: Offer at least a daily serving of grains at 
breakfast and lunch. When this rule is initially implemented, at least 
half of the grains offered during the week must be whole grain-rich. 
Two years after implementation, all grains offered during the week must 
be whole grain-rich. In addition, allow schools the option to offer up 
to one serving of a grain-based dessert daily to meet part of the 
weekly grains requirement.
    Comments: Many commenters, primarily nutrition and health 
advocates, and parents, favored introducing a whole grains requirement 
in the NSLP and SBP. A number of program operators, however, objected 
to the final whole grains requirement (that all grains offered must be 
whole grain-rich), and stated that the initial requirement (at least 
half of grains offered must be whole grain-rich) is sufficient. These 
commenters asserted that prohibiting all refined grains would restrict 
many grains that children and adolescents enjoy such as white rice and 
white bread. Other program operators that objected to the final whole 
grains requirement expressed concern with the timeline and the higher 
food costs associated with using only whole grain-rich products, which 
they argued are generally more expensive than refined grain products. 
Many commenters asked that USDA clarify the criteria schools must use 
to identify whole grain-rich products.
    USDA Response: While children generally eat enough total grains, 
most of the grains they consume are refined grains rather than whole 
grains. Whole grains (e.g., whole-wheat flour, oatmeal, whole cornmeal, 
and brown rice) are a source of nutrients such as iron, magnesium, 
selenium, B vitamins, and dietary fiber. Evidence suggests that eating 
whole grains in nutrient dense forms may lower body weight and reduce 
the risk of cardiovascular disease. Currently, schools may offer 
enriched or whole grains, and are allowed to offer enriched, refined 
grains only. Therefore, this final rule establishes a minimum whole 
grain-rich requirement in the NSLP and SBP to help children increase 
their intake of whole grains and benefit from the important nutrients 
they provide.
    For the NSLP, the whole grain requirement takes effect upon 
implementation of the rule. Therefore, in SY 2012-2013 and SY 2013-2014 
(the first two years of implementation) whole grain-rich products must 
make up half of all grain products offered to students. During this 
time only, refined-grain foods that are enriched may be included in the 
lunch menu. In SY 2014-2015 (the third year of implementation) and 
beyond, schools must offer only whole grain-rich products.
    In the SBP, this final rule provides that schools must offer the 
weekly grain ranges and half of the grains as whole grain-rich 
beginning July 1, 2013 (SY 2013-2014, the second year of 
implementation). All grains offered in the SBP must be whole grain-rich 
in SY 2014-2015 (the third year of implementation) and beyond. Once 
schools meet the daily minimum grain quantity required (1 oz. eq. for 
all age-grade groups) for breakfast, they are allowed to offer a meat/
meat alternate in place of grains. The meat/meat alternate can count 
toward the weekly grains requirement (credited as 1 oz. eq. of meat/
meat alternate is equivalent to 1 oz. eq. of grain). This modification 
is intended to retain the flexibility that menu planners currently have 
to offer a combination of grains and meats/meat alternates at 
breakfast. This final rule eliminates the proposed provision to require 
a meat/meat alternate daily at breakfast due to the cost concerns 
voiced by program operators. (For more details, please see the 
discussion on meat/meat alternate.)
    In this final rule, to receive credit in the meal programs, a whole 
grain-rich food must contain at least 51 percent whole grains and the 
remaining grain content of the product must be enriched. Because 
current labeling regulations and practices may limit the school's 
ability to determine the actual whole grain content of many grain 
products, schools would use both elements of the following criterion to 
identify whole grain-rich foods. This is consistent with USDA's 
approach on whole grains in the HealthierUS School Challenge 
(HealthierUS School Challenge Whole-Grains Resource, https://teamnutrition.usda.gov/healthierUS/NFSMI/lesson2handouts.pdf). 
Therefore, until the whole grain content of food products is required 
on a product label by the Food and Drug Administration (FDA), schools 
must evaluate a grain product according to forthcoming FNS guidance as 
follows:
    Element #1. A serving of the food item must meet portion size 
requirements for the Grains/Breads component as defined in FNS 
guidance.

And

    Element #2. The food must meet at least one of the following:
    a. The whole grains per serving (based on minimum serving sizes 
specified for grains/breads in FNS guidance) must be >= 8 grams. This 
may be determined from information provided on the product packaging or 
by the manufacturer, if available. Also, manufacturers currently may 
apply for a Child Nutrition Label for qualifying products to indicate 
the number of grains/breads servings that are whole grain-rich.
    b. The product includes the following Food and Drug Administration 
(FDA)-approved whole grain health claim on its packaging. ``Diets rich 
in whole grain foods and other plant foods and low in total fat, 
saturated fat and cholesterol may reduce the risk of heart disease and 
some cancers.''
    c. Product ingredient listing lists whole grain first, 
specifically:
    I. Non-mixed dishes (e.g., breads, cereals): Whole grains must be 
the primary ingredient by weight (a whole grain is the first ingredient 
in the list).
    II. Mixed dishes (e.g., pizza, corn dogs): Whole grains must be the 
primary grain ingredient by weight (a whole grain is the first grain 
ingredient in the list).
    For foods prepared by the school food service, the recipe is used 
as the basis for a calculation to determine whether the total weight of 
whole grain ingredients exceeds the total weight of non-whole grain 
ingredients.
    Several commenters noted that the industry standard of identity for 
whole grain products is 14.75 grams, while the IOM recommendations for 
school meals were based on 16 grams per serving. They suggested that 
schools be permitted to round up to the nearest quarter on gram 
equivalents in products. USDA will continue to provide SAs and schools 
guidance on this subject.
    Many program operators expressed concern about the increased 
quantity of

[[Page 4094]]

food offered to children. The weekly grains quantity for the NSLP is 
reduced to 8-9 oz. eq. for age/grade group K-5, to 8-10 oz. eq. for 
age/grade group 6-8, and to 10-12 oz. eq. for age/grade group 9-12. 
This grains requirement still reflects the Dietary Guidelines' 
recommendation to increase consumption of whole grains as half of all 
grains offered must be whole grain-rich during the first two years of 
implementation, and all grains must be whole grain-rich thereafter.
    Commenters also expressed concerns regarding the cost and 
availability of whole grain-rich products. USDA would like to emphasize 
that such products are now available through USDA Foods, including: 
brown rice; parboiled brown rice; rolled oats; whole-wheat flour; 
whole-grain kernel corn; and whole-grain rotini, spaghetti, and 
macaroni.
    This final rule modifies the provision in the proposed rule to 
allow schools the option to meet part of the weekly grains requirement 
with grain-based desserts. USDA had proposed to allow up to one serving 
of grain-based dessert per day to allow additional opportunities to 
incorporate whole grains in the lunch menu. However, the 2010 Dietary 
Guidelines cite grain-based desserts as a significant source of solid 
fats and added sugars in Americans' diets. Therefore, this final rule 
reduces the number of allowable grain-based desserts from five to two 
per school week, as recommended by several commenters.
    Accordingly, this final rule implements the proposed grains 
requirements and codifies them under Sec.  210.10(c) for the NSLP and 
under Sec.  220.8(c) for the SBP. Grains requirements applicable to the 
SBP in SY 2012-2013 are under Sec.  220.23(g).

Meats/Meat Alternates

    Proposed Rule: Offer a meat/meat alternate at lunch and breakfast 
daily to meet weekly requirements. Solicit comments on whether or not 
the meat/meat alternate component should include the three protein food 
subgroups recommended by the 2010 Dietary Guidelines: (1) Seafood; (2) 
meat, poultry, and eggs; and (3) nuts, seeds, and soy products. Solicit 
comments on whether or not tofu should be an allowable meat alternate 
and a methodology for crediting commercially prepared tofu.
    Comments: A few commenters, primarily health advocates, expressed 
support for the overall meat/meat alternate requirement. They supported 
the proposed rule's emphasis on lean sources of protein and on lower-
sodium meats/meat alternates. Several commenters, however, indicated 
that applying a weekly meat/meat alternate requirement, rather than a 
daily source of protein, might decrease the estimated meal cost and 
increase menu planning flexibility.
    Many of the public comments focused on the proposed requirement to 
offer a meat/meat alternate daily at breakfast. Commenters who favored 
the proposal stated that a breakfast with a meat/meat alternate would 
provide greater satiety and help increase the protein intake for 
children that do not drink milk. They said the protein requirement 
would result in a more nutritious and balanced breakfast.
    However, many school districts expressed concerns about offering a 
daily meat/meat alternate at breakfast. Several of these commenters 
argued that there is insufficient scientific support for the proposed 
meat/meat alternate requirement at breakfast. Others asserted that the 
daily requirement would be costly, create logistical difficulties and 
food safety challenges for schools, make it difficult for schools to 
achieve the new sodium limits, and discourage new breakfast modalities 
and school participation in the SBP. Some also noted that children in 
most schools have very limited time to eat breakfast and offering more 
food would result in increased plate waste.
    A few commenters also expressed concerns about the availability of 
meat/meat alternate products that will enable schools to offer meals 
that meet the dietary specifications for sodium, saturated fat, and 
trans fat. A commenter asked whether USDA Foods is able to provide low-
sodium processed meats, cheeses, and other meat/meat alternate 
products.
    Commenters had different opinions on whether or not the meal 
pattern should require that schools offer the specific protein food 
subgroups identified in the 2010 Dietary Guidelines. Those in favor 
stated that it would diversify students' diet and provide health 
benefits. Those against it said that requiring protein food subgroups 
would be cost-prohibitive to many schools and that it might not be 
feasible in certain geographical areas. They also indicated that many 
parents do not recognize nuts, seeds, and soy products as a substitute 
for meats.
    Many commenters suggested that USDA allow schools to offer tofu as 
a meat/meat alternate. A range of stakeholders, including SAs, 
nutrition professionals, advocacy organizations, and individual 
commenters, expressed support for allowing commercially prepared tofu 
in the school meal programs. Some commenters suggested a methodology 
for crediting commercially prepared tofu as a meat alternate. The 
predominant approach suggested is that USDA credit tofu based on the 
grams of protein per ounce equivalent.
    USDA Response: This final rule implements the meat/meat alternate 
requirements for the NSLP as proposed. Schools must offer at least a 
minimum amount of meat/meat alternate daily (2 oz eq. for students in 
grades 9-12, and 1 oz eq. for younger students), and provide a weekly 
required amount for each age/grade group. Offering a meat/meat 
alternate daily as part of the school lunch supplies protein, B 
vitamins, vitamin E, iron, zinc, and magnesium to the diet of children, 
and also teaches them to recognize the components of a balanced meal. 
Menu planners are encouraged to offer a variety of protein foods (e.g., 
lean or extra lean meats, seafood, and poultry; beans and peas; fat-
free and low-fat milk products; and unsalted nuts and seeds) to meet 
the meat/meat alternate requirement.
    The Department is mindful of the cost and operational concerns 
expressed by schools and other stakeholders regarding the proposed 
meat/meat alternate component in the SBP. Previously, schools have had 
the flexibility to offer one serving each of grains and meat/meat 
alternate, or two servings of either one at breakfast. We have seen a 
steady increase in the number of schools participating in the SBP and 
more schools are offering breakfast in the classroom and other creative 
delivery options. Therefore, this final rule retains some flexibility 
offered by the grains and meat/meat alternate combination available in 
the current SBP meal pattern, and does not require a daily meat/meat 
alternate in the SBP. Menu planners may offer a meat/meat alternate in 
place of grains after the minimum daily grains requirement is met. For 
example, for the K-5 age-grade group, the SBP minimum daily grain 
requirement is 1 oz. eq. As long as at least 1 oz. eq. of grain is 
served as part of the breakfast menu, a meat/meat alternate may also be 
served. The meat/meat alternate may count toward meeting the weekly 
grains requirement. For crediting, 1 oz. eq. of meat/meat alternate is 
equivalent to 1 oz. eq. of grains.
    As suggested by many stakeholders, this final rule gives schools 
the option to offer commercially prepared tofu as a meat alternate in 
the NSLP and SBP. This provision, which is codified under Sec.  
210.10(c)(2)(i)(D) of the regulatory text for the NSLP, allows schools 
to diversify the sources of protein available to students and better 
meet the dietary

[[Page 4095]]

needs of vegetarians and culturally diverse groups in schools. Although 
tofu does not have an FDA standard of identity, the Dietary Guidelines 
recognize plant-based sources of protein such as tofu. USDA will 
continue to provide SAs and schools guidance on this issue.
    USDA wishes to clarify that schools have the option to offer mature 
beans and dry peas (e.g., kidney beans, pinto beans, black beans, 
garbanzo beans/chickpeas, black-eyed peas, split peas and lentils) as 
meat alternates. Mature beans and peas dry longer on the plant, fix 
more nitrogen, and have a higher protein content, which makes them 
nutritionally comparable to protein foods. They are also excellent 
sources of other nutrients such as iron and zinc. Because beans and 
peas are similar to meats, poultry, and fish in their contribution of 
these nutrients, they can be credited as a meat alternate.
    Note that a serving of beans and peas must not be offered as a meat 
alternate and as a vegetable in the same meal. Some foods commonly 
referred to as beans and peas (e.g., green peas, green lima beans, and 
green (string) beans) are not considered part of the beans and peas 
subgroup because their nutrient profile is dissimilar. For more 
information about the use and categorization of beans and peas see 
https://www.choosemyplate.gov/foodgroups/proteinfoods_beanspeas.html.
    Schools also have discretion to offer ready-to-eat foods such as 
cold cuts, cheese, and yogurt to meet the meat/meat alternate 
component. Regardless of the protein foods offered, schools must plan 
all meals with the goal to meet the dietary specifications for sodium, 
saturated fat, trans fat, and calories. When selecting protein foods 
that are affordable and easy to prepare, we strongly encourage menu 
planners to use low-fat and low-sodium products that contribute to 
improved nutrient intake and health benefits (e.g., fat-free/low-fat 
yogurt and unsalted nuts and seeds).
    To support school meal improvements, USDA Foods has reduced the 
upper salt limit on mozzarella cheese from 2 percent to 1.6 percent. 
The current range for mozzarella is 130-175 mg of sodium per 28 g (1 
oz.) serving. The sodium in processed and blended cheeses has been 
reduced from 450 milligrams or more, to between 200 and 300 milligrams 
per 28 g (1 oz.) serving, which is closer to the sodium levels found in 
natural cheeses.
    USDA had solicited comments on whether schools should be required 
to offer the protein food subgroups recommended by the 2010 Dietary 
Guidelines. In response to program operators' concerns, this final rule 
does not require the three protein food subgroups recommended by the 
2010 Dietary Guidelines. However, USDA is developing technical 
assistance to assist schools in offering students a variety of protein 
foods consistent with the Dietary Guidelines.
    Accordingly, this final rule implements the proposed meat/meat 
alternate requirements, with modifications, and codifies them under 
Sec.  210.10(c) for the NSLP and under Sec.  220.8(c) for the SBP. 
Meat/meat alternate requirements applicable to the SBP in SY 2012-2013 
are under Sec.  220.23(g).

Fluid Milk

    Proposed Rule: Offer plain or flavored fat-free milk and unflavored 
low-fat milk (1 percent milk fat or less), and include variety that is 
consistent with Dietary Guidelines recommendations.
    Comments: Many parents and nutrition and health advocates favored 
the proposed requirement to limit flavor to fat-free milk. They believe 
that saturated fat and sugar in children's diets can be reduced by 
restricting milk choices to fat-free and low-fat, and by limiting 
flavor to fat-free milk. Several commenters stated that schools have 
already limited flavor to fat-free milk and student acceptability has 
been good. Some commenters recommended a total ban on flavored milk and 
argued that several states are in the process of banning flavored milk.
    However, more commenters stated that flavored low-fat (1 percent or 
\1/2\ percent) milk should be allowed. Many of these cited a lack of 
availability of flavored fat-free milk. Others were concerned that poor 
student acceptability of flavored fat-free milk could result in lower 
milk consumption or participation in the school meal programs. Some 
commenters said that the amount of extra calories and fat in low-fat 
flavored milk is not significant enough to warrant allowing only 
flavored fat-free milk. A few asked that USDA phase in the limit on 
flavored milk, and others suggested that USDA set a maximum level of 
added sugar in flavored milk instead of allowing flavor only in fat-
free milk.
    Several commenters addressed the need to accommodate lactose-
intolerant students and, others requested USDA to clarify milk variety 
in school meals. Also, although the proposed rule did not address meal 
variations for special dietary reasons, some commenters discussed the 
nutrition standards for non-dairy milk substitutes (e.g., soy drinks) 
and other miscellaneous topics related to the milk component, including 
OVS.
    USDA Response: This final rule allows flavor in fat-free milk only, 
and fat-free and low-fat choices only (consistent with Dietary 
Guidelines recommendations and the NSLA as amended by the HHFKA). 
Flavored low-fat (1 percent or \1/2\ percent) milk is not allowed in 
the NSLP or the SBP upon implementation of the rule in SY 2012-2013 
because it contributes added sugars and fat to the meal and would make 
it more difficult for schools to offer meals that meet the limits on 
calories and saturated fat. We anticipate that the new calorie limits 
will lead menu planners to select milk with the lowest levels of added 
sugar. Implementing calorie maximums gives menu planners more 
flexibility than limiting added sugar.
    Schools already have the option to offer lactose-free and reduced-
lactose milk (fat-free and/or low-fat) as part of the reimbursable 
meal. Offering lactose free/reduced milk (fat-free or low-fat) is 
allowed and counts toward the milk variety requirement established by 
in the NSLA by the HHFKA. For the NSLP and SBP, variety (at least two 
choices of milk) can be accomplished by offering different allowable 
fat levels (fat-free and low-fat) and milk flavor in fat-free milk 
only. For additional guidance on milk variety, please see the FNS 
memorandum SP-29-2011, Child Nutrition Reauthorization: Nutrition 
Requirements for Fluid Milk, dated April 14, 2011.)
    The milk fat restriction established by this final rule also 
applies to the meals for children in the age group 3-4 even though the 
meal patterns for preschoolers will be updated later through a separate 
rule. The amendments made to the NSLA by the HHFKA require fat-free and 
low-fat milk for all school lunches. Although this change was not 
addressed in the proposed rule due to the timing of publication, USDA 
notified program operators of this requirement for all school meals 
through implementation memorandum SP-29-2011. The milk flavor 
restriction also extends to the milk offered to children in age group 
3-4.
    As requested by commenters, we wish to clarify that this final rule 
does not change the nutrition standards for the optional non-dairy 
drinks offered to students with special dietary needs (not 
disabilities) in place of milk at the request from parents. Those 
products (e.g., soy, rice and almond drinks) are offered as meal 
exceptions on a case by

[[Page 4096]]

case basis and are not intended for general consumption with the school 
meal. The nutrition standards for non-dairy milk substitutes for 
children without disabilities were established through a separate final 
rule ``Fluid Milk Substitutions in the School Nutrition Program,'' 
which was published in the Federal Register (73 FR 52903) on September 
12, 2008. Those standards do not include fat or flavor/sugar 
restrictions.
    We also wish to clarify that although fluid milk must be offered 
with every school meal, students may decline milk under OVS. In 
addition, water may not be offered in place of fluid milk as part of 
the reimbursable meal, but must be available in the food service area 
for students who wish to drink it in accordance with the NSLA as 
amended by the HHFKA and as discussed in the memorandum ``SP-28-2011 
Revised Child Nutrition Reauthorization 2010: Water Availability During 
National School Lunch Program Meal Service'' dated July 12, 2011.
    Accordingly, this final rule implements the proposed milk 
requirements and codifies them under Sec.  210.10(d) for the NSLP and 
under Sec.  220.8(d) for the SBP.

Dietary Specifications

Calories
    Proposed Rule: Offer lunches and breakfasts that supply, on average 
over the school week, a number of calories that is within the 
established minimum and maximum levels for each age/grade group.
    Comments: Many commenters agreed in general with the proposal to 
establish minimum and maximum calorie levels, and were particularly 
supportive of the maximum calorie levels. These commenters included 
advocacy organizations, food banks, a health department, a professional 
association, and an industry association. Many stated that setting 
minimum and maximum calorie levels along with providing nutrient dense 
meals will help address food insecurity and obesity concerns.
    A few commenters said many students are not active enough and 
recommended lower calorie limits. Others, however, indicated that the 
proposed maximum calorie limits for school lunch might not be adequate 
to meet the dietary needs of taller and active students. Several 
commenters asserted that the calorie levels must be adequate enough to 
support the dietary needs of children who may not have access to 
sufficient food outside of school. There is also a concern among 
commenters about the ability of schools to adhere to the minimum and 
maximum calorie limits in the absence of a nutritional analysis.
    In order to control calorie intake, some commenters suggested that 
USDA establish limits on added sugars for products such as such ready-
to-eat cereal, grain-based desserts, and dairy-based desserts to 
improve the diet of school children. A few commenters, including an 
advocacy organization, suggested adopting the World Health 
Organization's recommendation to limit added sugars to ``no more than 
10 percent of a person's daily caloric intake.'' An advocacy 
organization and a professional association of health nutrition 
directors suggested adopting the Special Supplemental Nutrition Program 
for Women, Infants and Children (WIC) breakfast standard, which sets 
the added sugars limit to no more than 6 grams of sugars per ounce of 
dry cereal.
    USDA Response: This final rule is intended to respond to serious 
concerns about childhood obesity, and the importance for children to 
consume nutritious school meals within their calorie needs. Therefore, 
this rule implements the proposed minimum and maximum calorie levels 
for each grade group. In the NSLP, the calorie limits for each age/
grade group take effect upon implementation of this final rule. In the 
SBP, however, calorie limits are not implemented until the SY 2013-2014 
(the second year of implementation). This modification from the 
proposed rule is intended to give program operators additional time to 
implement the new meal requirements in the SBP.
    USDA acknowledges the school meal programs provide a nutrition 
safety net for food-insecure children and agrees with commenters that 
meals must supply adequate calories for growth and development. IOM 
considered this aspect of the Child Nutrition Program missions when 
developing the minimum and maximum calorie levels for various age/grade 
groups in the NSLP and SBP. They also took into consideration other 
opportunities for food intake available to most children outside of 
school, and the role of community organizations and other groups in 
supporting the nutritional needs of low-income ch