Local School Wellness Policy Implementation Under the Healthy, Hunger-Free Kids Act of 2010, 50151-50170 [2016-17230]

Download as PDF Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations aforementioned Tribal consultation sessions. Currently, FNS provides regularly scheduled quarterly consultation sessions as a venue for collaborative conversations with Tribal officials or their designees. The most recent specific discussion of the Nutrition Standards for All Foods Sold in Schools rule was included in the consultation conducted on August 19, 2015. No questions or comments were raised specific to this rulemaking at that time. Reports from these consultations are part of the USDA annual reporting on Tribal consultation and collaboration. FNS will respond in a timely and meaningful manner to Tribal government requests for consultation concerning this rule. List of Subjects 7 CFR Part 210 Grant programs-education; Grant programs-health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs; Surplus agricultural commodities. 7 CFR Part 220 Grant programs-education; Grant programs-health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs. Accordingly, for the reasons set forth in the preamble, 7 CFR parts 210 and 220 are amended as follows: PART 210—NATIONAL SCHOOL LUNCH PROGRAM 1. The authority citation for 7 CFR part 210 continues to read as follows: ■ Authority: 42 U.S.C. 1751–1760, 1779. 2. In § 210.11: a. Revise paragraph (a)(3); b. Add paragraph (a)(6); c. Remove paragraph (c)(2)(v); d. Paragraph (c)(2)(vi) is redesignated as (c)(2)(v); ■ e. Revise paragraph (d); ■ f. Add paragraph (f)(3)(iv); ■ g. Revise the heading and the first sentence of paragraph (i); and ■ h. Revise paragraph (j); The revisions and additions read as follows: asabaliauskas on DSK3SPTVN1PROD with RULES ■ ■ ■ ■ ■ § 210.11 Competitive food service and standards. (a) * * * ´ (3) Entree item means an item that is intended as the main dish and is either: (i) A combination food of meat or meat alternate and whole grain rich food; or VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 (ii) A combination food of vegetable or fruit and meat or meat alternate; or (iii) A meat or meat alternate alone with the exception of yogurt, low-fat or reduced fat cheese, nuts, seeds and nut or seed butters, and meat snacks (such as dried beef jerky); or (iv) A grain only, whole-grain rich ´ entree that is served as the main dish of the School Breakfast Program reimbursable meal. * * * * * (6) Paired exempt foods mean food items that have been designated as exempt from one or more of the nutrient requirements individually which are packaged together without any additional ingredients. Such ‘‘paired exempt foods’’ retain their individually designated exemption for total fat, saturated fat, and/or sugar when packaged together and sold but are required to meet the designated calorie and sodium standards specified in §§ 210.11(i) and (j) at all times. * * * * * (d) Fruits and vegetables. (1) Fresh, frozen and canned fruits with no added ingredients except water or packed in 100 percent fruit juice or light syrup or extra light syrup are exempt from the nutrient standards included in this section. (2) Fresh and frozen vegetables with no added ingredients except water and canned vegetables that are low sodium or no salt added that contain no added fat are exempt from the nutrient standards included in this section. * * * * * (f) * * * (3) * * * (iv) Whole eggs with no added fat are exempt from the total fat and saturated fat standards but are subject to the trans fat, calorie and sodium standards. * * * * * (i) Calorie and sodium content for snack items and side dishes sold as competitive foods. Snack items and side dishes sold as competitive foods must have not more than 200 calories and 200 mg of sodium per item as packaged or served, including the calories and sodium contained in any added accompaniments such as butter, cream cheese, salad dressing, etc., and must meet all of the other nutrient standards in this section. * * * (j) Calorie and sodium content for ´ entree items sold as competitive foods. ´ Entree items sold as competitive foods, other than those exempt from the competitive food nutrition standards in paragraph (c)(3)(i) of this section, must have not more than 350 calories and 480 mg of sodium per item as packaged or served, including the calories and PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 50151 sodium contained in any added accompaniments such as butter, cream cheese, salad dressing, etc., and must meet all of the other nutrient standards in this section. * * * * * § 210.11a ■ [Removed] 3. Section 210.11a is removed. Appendix B to Part 210 [Removed] ■ 4. Appendix B to part 210 is removed. PART 220—SCHOOL BREAKFAST PROGRAM 5. The authority citation for 7 CFR part 220 continues to read as follows: ■ Authority: 42 U.S.C. 1773, 1779, unless otherwise noted. § 220.12a ■ [Removed] 6. Remove § 220.12a. Appendix B to Part 220 [Removed and Reserved] 7. Remove and reserve Appendix B to part 220. ■ Dated: June 21, 2016. Kevin W. Concannon, Under Secretary, Food, Nutrition, and Consumer Services. [FR Doc. 2016–17227 Filed 7–28–16; 8:45 am] BILLING CODE 3410–30–P DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 210 and 220 [FNS–2014–0010] RIN 0584–AE25 Local School Wellness Policy Implementation Under the Healthy, Hunger-Free Kids Act of 2010 Food and Nutrition Service, USDA. ACTION: Final rule. AGENCY: This final rule requires all local educational agencies that participate in the National School Lunch and School Breakfast Programs to meet expanded local school wellness policy requirements consistent with the requirements set forth in section 204 of the Healthy, Hunger-Free Kids Act of 2010. The final rule requires each local educational agency to establish minimum content requirements for the local school wellness policies, ensure stakeholder participation in the development and updates of such policies, and periodically assess and disclose to the public schools’ SUMMARY: E:\FR\FM\29JYR2.SGM 29JYR2 50152 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES compliance with the local school wellness policies. These regulations are expected to result in local school wellness policies that strengthen the ability of a local educational agency to create a school nutrition environment that promotes students’ health, wellbeing, and ability to learn. In addition, these regulations will increase transparency for the public with regard to school wellness policies and contribute to integrity in the school nutrition program. DATES: This rule is effective August 29, 2016. Compliance with the provisions of this rule must begin August 29, 2016. FOR FURTHER INFORMATION CONTACT: Tina Namian, School Programs Branch, Policy and Program Development Division, Food and Nutrition Service, at (703) 305–2590. SUPPLEMENTARY INFORMATION: I. Background The Healthy, Hunger-Free Kids Act of 2010 (HHFKA), Public Law 111–296, required significant changes in the Child Nutrition Programs to give eligible children access to nutrition benefits, improve children’s diets and reduce childhood obesity, and strengthen integrity in the Child Nutrition Programs. Section 204 of the HHFKA added a new section 9A to the Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1758b) to expand the scope of wellness policies; bring additional stakeholders into the development, implementation, and review of local school wellness policies; and require periodic assessment and public updates on the implementation of the wellness policies. The local school wellness policies are an important tool for parents, local educational agencies (LEAs), and school districts in promoting student wellness and academic success through the National School Lunch Program (NSLP) and School Breakfast Program (SBP). The local wellness policy requirement was established by the Child Nutrition and WIC Reauthorization Act of 2004, and further strengthened by the HHFKA. As of school year (SY) 2006– 2007, all LEAs participating in the NSLP and/or SBP were required to establish a local school wellness policy to promote the health of students and address the growing problem of childhood obesity. The responsibility for developing a local school wellness policy was placed at the LEA level so the unique needs of each school under the jurisdiction of the LEA can be addressed. By SY 2010, 99 percent of students in public schools were enrolled in a district that had a wellness policy in place. However, far VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 fewer students were in a district that specifically required all five wellness policy elements: Nutrition education, school meals, physical activity, implementation and evaluation, and competitive foods.1 HHFKA authorized the United States Department of Agriculture (USDA) Food and Nutrition Service (FNS) to consult with the Departments of Education (ED) and Health and Human Services (HHS), acting through the Centers for Disease Control and Prevention (CDC), to provide information and technical assistance to local educational agencies, school food authorities, and State educational agencies for use in establishing healthy school environments that are intended to promote student health and wellness. FNS worked with other Federal agencies and national partners to conduct several needs assessment activities with stakeholders and create a comprehensive school nutrition environment and wellness resources Web site available at http:// healthymeals.nal.usda.gov/schoolwellness-resources-2. FNS also developed a customizable model local school wellness policy template, published a resource featuring stories from schools that have put wellness policies into action, and issued a joint statement of collaboration with over two dozen national associations and organizations in support of local school wellness policies, and more. FNS will update existing technical assistance materials with the final regulatory changes and continue to work with partners to provide technical assistance that is consistent with the specific needs of local educational agencies. FNS issued a proposed rule (79 FR 10693) on February 26, 2014, seeking to amend the NSLP and SBP regulations to expand the wellness policy requirements consistent with amendments made to the NSLA by the HHFKA. The rule proposed specific content for the local school wellness policies. At a minimum, policies were required to include: • Specific goals for nutrition promotion and education, physical activity, and other school-based activities that promote student wellness and rely on evidence-based strategies. • Standards and nutrition guidelines for all foods and beverages available for sale on the school campus during the school day consistent with applicable Federal meal pattern and competitive food regulations. 1 http://www.bridgingthegapresearch.org/_asset/ 13s2jm/WP_2013_report.pdf. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 • Standards for all other foods and beverages available on campus, but not sold, such as those provided at classroom parties and school celebrations and as rewards and incentives. The proposed rule also required LEAs to establish, at a minimum, wellness policy leadership of one or more LEA and/or school official(s) who have the authority and responsibility to ensure each school complies with the policy. It also proposed stakeholder participation in the development of such policies, periodic assessment of local school wellness policy compliance, and public updates on the progress toward achieving the goals of the local wellness policy. II. Summary of Changes to Proposed Rule As discussed in more detail below, following publication of the proposed rule, FNS considered commenters’ concerns and suggestions on the proposal. The following is a summary of the changes and clarifications being made in this final rule at 7 CFR part 210. Administrative Reviews The final rule requires the State agency to ensure that the LEA complies with the local school wellness policy requirements. This provision was proposed at § 210.18(h)(7), but will be codified at § 210.18(h)(8). Nutrition Guidelines for All Foods The final rule clarifies that, in addition to including nutrition guidelines for all foods offered to students for sale that are consistent with the meal pattern requirements and nutrition standards for competitive foods, the local school wellness policy also must include standards for other, non-sold foods and beverages made available on the school campus during the school day. See § 210.30(c)(2) and § 210.30(c)(3). Policies for Food and Beverage Marketing The final rule clarifies that in-school marketing of food and beverage items must meet competitive foods standards. See § 210.30(c)(3). Additionally, the final rule clarifies what is and is not subject to policies for food and beverage marketing in schools. See § 210.30(c)(3). Implementation, Assessments and Updates The final rule requires each LEA to assess compliance with its local school wellness policy and make this E:\FR\FM\29JYR2.SGM 29JYR2 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations assessment available to the public at least once every three years, but removes the requirement for LEAs to annually report progress of local school wellness policies. See § 210.30(e)(2). Recordkeeping The final rule establishes that records retained by LEAs must include, at a minimum, the written local school wellness policy, documentation demonstrating compliance with community involvement requirements, documentation of the triennial assessment, and documentation to demonstrate compliance with the public notification requirements in § 210.30(f). asabaliauskas on DSK3SPTVN1PROD with RULES Implementation Timeline The final rule requires LEAs to begin developing a revised local school wellness policy by August 29, 2016. LEAs must fully comply with the requirements of the final rule by June 30, 2017. III. Public Comments The proposed rule was published in the Federal Register on February 26, 2014 (79 FR 10693). The rule was posted for comment on www.regulations.gov, and the public had the opportunity to submit comments on the proposal during a 60day comment period that ended on April 28, 2014. FNS appreciates the valuable comments provided by stakeholders and the public. FNS received 57,838 public comments that included 546 distinct submissions, 57,285 form letters that were submitted through four large letter campaigns and four small letter campaigns, and 7 duplicate submissions. Although not all commenters identified their group affiliation or commenter category, commenters included: • School districts—7. • Associations (national, State, local and others)—30. • State and/or local agencies—11. • Advocacy groups (national and State levels)—52. • Non-profit organizations—36. Overall, approximately 57,420 comments voiced support for the proposal and 130 comments expressed opposition. The remaining 288 did not expressly state support or opposition. Supporters stated that local school wellness policies reinforce existing Federal regulations established to promote healthy eating in schools and help create learning environments free from unhealthy commercial influences. They affirmed that strengthening local school wellness policies improves accountability and public transparency VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 with parents, students, and the community. Many organizations commended FNS for developing strong, comprehensive policies that will strengthen the existing regulation and lead to more effective leadership, implementation, and stakeholder involvement. Proponents noted that childhood obesity is an ongoing concern, and that most children fail to meet not only the Dietary Guidelines for Americans, but also recommendations for daily physical activity. As a result of the high childhood obesity rates, nearly all of the commenters supported local wellness policies that promote healthy eating and physical activity. Commenters also stated that strong, comprehensive school wellness policies are especially important to low-income children who often have inadequate access to healthy food and physical activity and who rely heavily on their schools to fill these gaps. FNS agrees that schools play a powerful role in preparing students for a successful future, and believes that the guidance outlined in this final rule will further support efforts to create a school environment that teaches, supports and encourages students to develop lifelong healthy habits. Opponents generally expressed concern about the potential for misunderstanding of specific provisions. All comments were considered and, in cases of misunderstandings, clarifications are being made in this final rule. Many of the opponents expressed concern about Federal overreach and others indicated that the proposal could create operational and financial hardship for LEAs. Some commenters questioned FNS’s legal and constitutional authority to regulate nutrition standards for all foods available in schools, and others suggested this requirement is an unfunded mandate. In response to these comments, FNS notes that the HHFKA amended the NSLA to require that local school wellness policies address nutrition guidelines for all foods available to children on the school campus during the school day. USDA provides cash and donated food assistance to States and schools participating in the NSLP and SBP to manage and operate school nutrition programs for children. In exchange, State agencies and participating LEAs agree to comply with the regulations set forth in 7 CFR parts 210, 220, and 245. Other commenters were not clearly in favor of or opposed to the proposal but requested clarification on specific provisions. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 50153 FNS considered all comments in the development of this final rule. FNS greatly appreciates the public comments submitted as they have been essential in developing a final rule that is expected to result in stronger local wellness policies and school environments that support student wellness and achievement. Given the volume and complexity of comments on the proposed rule, FNS developed a comprehensive comment summary and analysis which includes detailed information on the comments, including the source of the comments. The comprehensive comment summary and analysis is available at http:// www.fns.usda.gov/school-meals/localschool-wellness-policy. This preamble focuses on general comment themes, most frequent comments, and those that influenced revisions to the proposed rule. The preamble also discusses modifications made to the proposed regulatory text, including paragraph numbering, in response to public input. To view all public comments received on the proposed rule, go to www.regulations.gov and search for public submissions under docket number FNS–2014–0010. Once the search results populate, click on the blue text titled, ‘‘Open Docket Folder.’’ The following is a summary of the public comments on the key provisions. Administrative Reviews Proposed Rule: The proposed rule at § 210.18(h)(7) would require State agencies to ensure school food authorities (SFAs) comply with local school wellness policy requirements as part of the general areas of the administrative review. State agencies conduct administrative reviews of LEAs at least once every three years. Public Comments: Sixty commenters addressed the administrative review provision in the proposed rule. Fifty commenters supported the proposed requirement and stated that incorporating compliance with local school wellness policies into the administrative review will promote more effective implementation of the policies. Ten commenters expressed their opposition to the proposed monitoring and oversight requirements stating it will reduce the ability of staff to provide technical assistance to schools and places an undue burden on State nutrition program staff. A coalition of school districts and five individuals recommended placing the responsibility for compliance on the LEA, rather than the SFA, since the food service department does not have the authority E:\FR\FM\29JYR2.SGM 29JYR2 asabaliauskas on DSK3SPTVN1PROD with RULES 50154 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations to control all elements of the wellness policies. Some commenters asked FNS to explain the enforcement strategy and the documents needed to show compliance with the requirements. FNS response: FNS recognizes that the first few years of implementation may be a period of transition as strengthening local school wellness policies may involve significant changes for some LEAs. During this transition period, State agencies are expected to focus on providing guidance and technical assistance to help LEAs move toward compliance. State agencies should work closely with LEAs experiencing challenges to help them resolve unique issues. In order to assist LEAs in implementing these requirements, FNS will continue to provide support to States. This will include identifying best practices and success stories and sharing other technical assistance materials that will assist LEAs in developing, updating, and assessing their policies. FNS also recognizes that local school wellness policy compliance must be the responsibility of the LEA, since the provisions of the NSLA, as amended by HHFKA, place responsibility for all other aspects of local school wellness policy implementation on the LEA. Accordingly, this final rule clarifies that the responsibility is at the LEA level rather than the SFA level and codifies the State agency’s monitoring responsibilities in § 210.18(h)(8). Pursuant to provisions of the NSLA amended by HHFKA, State agencies conduct administrative reviews at least once every three years. When program responsibilities fall to entities outside of school food service, the State agency must assess the compliance of the LEA’s program responsibilities. FNS recognizes that LEAs will need time to fully develop their updated policies. During administrative reviews conducted in SY 2016–2017, State agencies should focus on providing technical assistance on the development and implementation of new local wellness policies. Full compliance will be expected by June 30, 2017, and therefore, will be assessed in administrative reviews conducted during SY 2017–2018. Information on the content of the review and methods States can use to assess compliance with local school wellness policies will be provided through an update to the Administrative Review Manual and related tools and forms for SY 2017– 2018. As part of the general areas of review, the State agency is expected to examine records, including: • A copy of the current Local School Wellness Policy; VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 • Documentation demonstrating the Local School Wellness Policy has been made available to the public; • Documentation of efforts to review and update the Local School Wellness Policy, including an indication of who is involved in the update and methods the district uses to make stakeholders aware of their ability to participate; • The most recent assessment on the implementation of the Local School Wellness Policy; and • Documentation demonstrating the most recent assessment on the implementation of the Local School Wellness Policy has been made available to the public. Most of these comments were submitted as part of several form letter campaigns. Commenters encouraged FNS to include specific definitions of local school wellness policy, nutrition promotion and education, physical activity, physical education, and food and beverage marketing. Some commenters expressed concerns that the proposed rule failed to direct schools to include efforts to expand participation in the healthy school meals programs and suggested including definitions of ‘‘student wellness’’ and ‘‘other school based activities to promote wellness.’’ Forty commenters, including advocacy groups, education associations, and individuals, Definitions recommended that additional terms be Proposed Rule: FNS proposed in defined in the final rule and provided § 210.30(b) to use the definitions for the suggested model language to define terms school campus and school day those terms. The recommended terms codified in the competitive foods include: Brand, copycat snacks, regulations at § 210.11(a) for the designated local education or school purpose of the local school wellness official(s), family engagement, policies. School campus is defined as all commercial entity, student wellness, areas of the property under the and healthy eating. Commenters also jurisdiction of the school that are suggested defining all foods served at accessible to students during the school school during the day as competitive day. School day is defined as the period foods. from the midnight before to 30 minutes FNS Response: After careful after the end of the official school day. consideration, this final rule maintains Public Comments: The definitions in the definitions of school campus and the proposed rule were addressed by school day from § 210.11(a) and does 2,434 commenters, and some not include additional definitions in commenters provided suggested § 210.30. FNS acknowledges that alternative model language. Most of additional definitions may increase these comments were submitted as part consistency across LEAs and schools of several form letter campaigns. A State implementing the local school wellness department of education commenter policies. However, defining additional recommended the definitions for school terms would add to existing campus and school day be included in requirements and limit decision-making the rule rather than cross-referencing at the local level. The ability of LEAs § 210.11(a). A health research and and schools to establish additional policy organization expressed support standards, including their own for the proposed definition of school definitions or terms, that do not conflict campus while an individual commenter with Federal requirements is consistent suggested the definition of school with the intent of the HHFKA and with campus be limited to areas where the operation of the Federal school meal breakfast and lunch are served. programs in general. That local Several commenters were concerned discretion also provides an appropriate with the proposed definitions. An level of flexibility to LEAs and schools individual commenter was concerned in crafting policies that reflect their that the proposed definition of school particular circumstances. As noted above, a few commenters day was too narrow and would force their school’s weekend meal program to recommended changes to the current terminate because the meals do not meet definitions of school campus and school day. As proposed, the school campus competitive foods standards. Some definition ensures that the local commenters suggested the definition of wellness policy addresses locations that school day be expanded to apply to are accessible to students. The extracurricular activities, to ensure that timeframe for the school day definition students are provided healthy options starting the ‘‘midnight before’’ ensures during after-school events including that the local wellness policy would athletic events. apply before school starts to ensure Approximately 2,420 commenters foods and beverages offered during a stated that other terms should be variety of before-school programs are defined in § 210.30(b) of the final also addressed. In addition, these terms regulations and provided suggested were previously defined in the model language to define those terms. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\29JYR2.SGM 29JYR2 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations competitive foods interim final rule at § 210.11(a) and, if modified, would result in inconsistencies when operating the child nutrition programs. Accordingly, this final rule codifies the definitions for school campus and school day in § 210.30(b), without change. Establishing a Local School Wellness Policy asabaliauskas on DSK3SPTVN1PROD with RULES Local School Wellness Policy Leadership Proposed Rule: FNS proposed in § 210.30(e)(1) that each LEA must designate one or more LEA or school official(s) to ensure each participating school complies with the local school wellness policy and proposed in § 210.30(c)(3) that local wellness policies must identify the position of the LEA or school official(s) responsible for oversight of the local school wellness policy to ensure each school’s compliance. Public Comments: The proposed requirements related to local school wellness policy leadership were addressed by approximately 54,800 commenters; 54,790 of these commenters were supportive of the leadership requirement. The majority of these commenters submitted comments as part of several large form letter campaigns. Approximately 60 commenters suggested requiring that LEAs publish the name, position title, and contact information for the designated official. A health advocacy organization recommended that the designated official’s private contact information remain confidential. One association and two individuals opposed the proposed requirements stating that they would be unfunded and overly burdensome. Several commenters, including advocacy organizations and nutrition and education associations, addressed who should be designated responsible for overseeing the wellness policies. Many of these commenters stated that the designated official should be in a position of administrative leadership, preferably the superintendent or the principal. Others recommended that the designated official(s) should be a committee of officials, a district leader, or someone with authority to make decisions and recommendations. Many commenters suggested more than one person should be appointed to assist the designated official. FNS Response: The final rule requires LEAs to identify only the position title of the LEA or school official(s) responsible for oversight. FNS agrees that the community should be able to VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 easily access the designated official(s) to provide suggestions and for accountability purposes, but that LEA’s should not be required to publicize an individual’s private contact information. However, we strongly encourage LEAs to provide a means of contacting the LEA or school official(s) responsible for oversight by designating an LEA or school-based phone number and/or email address for this purpose. In response to comments regarding who should be designated responsible for overseeing the wellness policies, this final rule allows LEA discretion. The LEA is most qualified to identify the best candidate for local school wellness policy leadership as size, resources, and needs vary greatly among LEAs and schools. Accordingly, this final rule codifies in § 210.30(c)(4) the leadership requirements proposed in § 210.30(e)(1) and § 210.30(c)(3). Public Involvement in Local School Wellness Policy Development Proposed Rule: FNS proposed in § 210.30(d)(1) that each LEA must allow parents, students, representatives of the SFA, teachers of physical education, school health professionals, the school board, school administrators, and the general public to participate in the development, implementation, and periodic review and update of the local school wellness policy, and in § 210.30(c)(4) that LEAs include in the written local school wellness policy a plan for involving those stakeholders. Public Comments: The public involvement provisions in § 210.30(d)(1) and § 210.30(c)(4) of the proposed rule were addressed by approximately 54,900 commenters. The majority of these commenters submitted comments as part of several large form letter campaigns. Approximately 54,840 commenters stated support for the proposed rule’s requirements related to community and public involvement in local school wellness policy development. Commenters provided the following reasons for supporting the public involvement requirements: • Broad stakeholder involvement ensures coordination across the school environment and throughout the community. • Transparency and inclusion are important aspects of the implementation process. • No single department or group has all of the necessary information to develop comprehensive policies. • Parents spend the most time with their children and best understand their children’s food habits and choices. Nine commenters expressed their opposition to public involvement PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 50155 stating the requirements would be overly burdensome. Many of them recommended that FNS require, rather than encourage, LEAs to make wellness committee member’s names, position titles, and relationship to the school available to the public, but not their contact information. Several commenters suggested that FNS require, rather than permit, involvement from specific categories of stakeholders on local school wellness policy committees. Most of those commenters also suggested that FNS require parent involvement on the committees. Several commenters expressed concern that the language of the proposed rule was too vague and could allow LEAs and schools to hand select participants or reduce parent participation. Ten commenters provided additional categories of stakeholders they wanted FNS to either specifically identify in the final rule or encourage LEAs and schools to consider, such as student representatives, paraprofessionals, and classroom teachers to name a few. FNS Response: In response to commenters’ concerns about omitting important stakeholders, this final rule requires LEAs to allow parents, students, SFA representatives, teachers of physical education, school health professionals, the school board, school administrators, and members of the general public to participate in the development, implementation, and periodic review and update of the local school wellness policy. LEAs are also encouraged to include Supplemental Nutrition Assistance Program Education (SNAP–ED) coordinators or educators on the local school wellness policy committee, as appropriate. However, LEAs have discretion in exactly how they implement this requirement. While FNS expects LEAs to actively seek members for the local school wellness policy committee that represent the categories described in the statute, and to the extent practicable, allow them to participate, there are a variety of factors to consider when seeking the right combination of representatives. Each LEA is best suited to determine the distinctive needs of the community it serves. For example, school health professionals may include a health education teacher, school health services staff, or a social services staff. An example of the general public may include a local dietitian, business representative, health care professional or community or civil leader interested in children, nutrition, education, health, and physical activity. Once members of the local school wellness policy committee are identified, the LEA is encouraged to E:\FR\FM\29JYR2.SGM 29JYR2 50156 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations make available to the public and school community, a list of names and position titles (or relationship to the school) of individuals who are a part of the wellness policy committee; as well as the name, position title, and schoolbased contact information of the lead individual(s) or coordinator(s) for the LEA, and for each school as applicable. Committee members can be identified on the LEA or school’s Web site, in parent newsletters, or in other regular channels of communication that the LEA utilizes. Accordingly, this final rule codifies in § 210.30(d)(1) the requirement that LEAs allow certain stakeholders to participate in the development, implementation, and periodic review and updating of the local school wellness policy. The rule also codifies in § 210.30(c)(5) the requirement proposed in § 210.30(c)(3) that LEAs include in the written local school wellness policy a plan for involving the required stakeholders. asabaliauskas on DSK3SPTVN1PROD with RULES Content of the Local School Wellness Policy Nutrition Promotion and Education, Physical Activity, and Other SchoolBased Activities Proposed Rule: Under proposed § 210.30(c)(1), local school wellness policies must include specific goals for nutrition promotion and education, physical activity, and other schoolbased activities that promote student wellness. In developing these goals, LEAs must review and consider evidence-based strategies and techniques. Public Comments: Approximately 54,700 commenters addressed the proposed content of the local school wellness policy. The majority of these commenters submitted comments as part of several large form letter campaigns. Only two commenters, including a coalition of school districts and an individual, generally opposed the proposal, while the majority of commenters stated support. Approximately 200 commenters stated specific support for the inclusion of nutrition promotion and education components in local school wellness policies. Most of these comments were submitted as part of two form letter campaigns. Commenters suggested that FNS include a recommended amount of nutrition education. An advocacy organization suggested 30–50 hours per year and an association suggested 50 hours per year. Commenters also suggested activities for nutrition education that were not included in the proposal, including cooking with children, social marketing for members VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 of the school community, educating students about food systems, utilizing school gardens and farm-to-school programs as vehicles for nutrition education, and inviting parents to participate in physical activity opportunities and school meals. Approximately 2,700 commenters mentioned they were in favor of including a physical activity component in local school wellness policies. Most of these comments were submitted as part of two form letter campaigns. Approximately 80 commenters submitted other comments related to the inclusion of a physical activity component and many of these commenters stated that shared use of facilities is an important way to foster physical activity opportunities. Some commenters, including education associations, health associations and advocacy organizations, suggested that FNS require, rather than recommend, 60 minutes of physical activity per day. Several commenters suggested requiring other minimum daily times for physical activity including 50 minutes a day, at least 30 minutes a day, and at least 15 minutes for every 1.5 hours of classroom instruction. A health advocacy organization also recommended that FNS require moderate to vigorous physical activity during 50 percent or more of physical education class time. In addition to comments on physical activity, 20 commenters recommended including a physical education component as a required goal in local school wellness policies. Other comments addressed class frequency and size, teacher qualifications, teacher training, and benefits of physical education. Approximately 150 commenters stated support for including an educational component related to school-based activities other than nutrition education and promotion, and physical activity in local school wellness policies. Most of these comments were submitted as part of a form letter campaign. Two advocacy organizations and a local department of health suggested that FNS include in the final rule examples of other schoolbased activities and programs that promote a healthy school environment. These commenters also recommended specific examples including Smarter Lunchrooms, farm to school, recess before lunch, the HealthierUS School Challenge, and others. A commenter also recommended that FNS require goals ensuring students have adequate time to eat. Five commenters, including State departments of education and an advocacy organization, stated support PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 for, and a State department of education expressed opposition to, the proposed requirement that LEAs consider evidence-based strategies and techniques in establishing goals for nutrition promotion and education, physical activity and other school-based activities that promote student wellness. The opponent raised concerns about LEAs having the resources or capacity to review evidence-based strategies in establishing goals. Two commenters, an advocacy organization and a department of health, encouraged FNS to require LEAs to review Smarter Lunchroom tools and strategies to incorporate some of the low- and no-cost strategies in the wellness policies. FNS Response: This final rule requires the local school wellness policy to include measurable goals for nutrition promotion and education, physical activity, and other schoolbased activities that promote student wellness. In developing these goals, LEAs must review and consider evidence-based strategies and techniques. Nutrition education teaches behaviorfocused skills and may be offered as part of a comprehensive, standards-based program designed to provide students with the knowledge and skills necessary to safeguard their health and make positive choices regarding food and nutrition. A standards-based program is a system of instruction, assessment, grading, and reporting based on students demonstrating understanding of the knowledge and skills they are expected to learn. FNS does not recommend a specific number of hours for nutrition education, but instead that nutrition education is part of comprehensive health education curricula as well as integrated into other core subjects, such as math, science, language arts, and social sciences. FNS’ Team Nutrition initiative has standardsbased lesson plans and curricula for prekindergarten through Grade 8, available free of charge for schools that participate in Federal child nutrition programs (http://www.fns.usda.gov/tn/ resource-library). The amount of time recommended for nutrition education is dependent on many factors including expected results, content of curriculum, and quality of instruction. Local school wellness policy goals related to nutrition education may include activities such as integrating nutrition education into other academic subjects, including nutrition education as part of health education classes and/or standalone courses for all grade-levels, and any other activities that are appropriate such as those suggested above by commenters. E:\FR\FM\29JYR2.SGM 29JYR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations Although FNS sets the standards for the operation of school meal programs, FNS does not have the authority to require a minimum time for physical activity during the school day. The Richard B. Russell National School Lunch Act, section 12(c), 42 U.S.C. 1760(c), prohibits USDA from imposing any requirement in relation to curriculum and methods of instruction. This includes prohibiting USDA from imposing a specific instruction time requirement for the nutrition education component. USDA has long adhered to the position that the intent of the provision is to allow LEAs to retain the primary authority to manage their school day, but understands commenters’ concerns related to physical activity and appreciates recommendations for a daily requirement. FNS agrees with commenters that 60 minutes of physical activity is important for students to achieve and maintain optimal health. The Centers for Disease Control and Prevention (CDC) recommends 60 minutes of physical activity each day for children and adolescents.2 While it may be difficult for schools to meet the recommended requirement due to other demands, FNS strongly encourages schools to offer time for students to meet the 60 minute goal since children spend many hours of their day at school. Some recommendations for fitting physical activity into the school day include outdoor and indoor recess, classroombased physical activity breaks, and opportunities for physical activity before and after school to increase focus or teach academic content via physical movement. Physical education was not included as a required element of the local school wellness policy in the proposed rule. However, FNS agrees that physical education opportunities complement a healthy school environment by instilling an understanding of the shortterm and long-term benefits of a physically active and healthy lifestyle and FNS encourages LEAs and schools to offer physical education for every grade level. FNS appreciates comments and suggestions for other school-based activities supporting nutrition and health, and encourages LEAs to consider commenters’ suggestions when developing or updating their local school wellness policies. Local school 2 U.S. Department of Health and Human Services. 2008 Physical Activity Guidelines for Americans. Washington (DC): U.S. Department of Health and Human Services; 2008. ODPHP Publication No. U0036. Available at: http://www.health.gov/ paguidelines. VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 wellness policies could include the availability of safe facilities and equipment in sufficient quantities for all students to be active (including the frequency of inspections and replacements, as necessary); the community use of school grounds/ facilities for physical activity outside of school hours; and strategies/events to promote safe, active routes to school (for example, ‘‘walk to school day,’’ crossing guards stationed around the school, and bicycle parking). Further examples of other school-based activities that may be included into the local school wellness policy could include offering staff wellness activities and professional development opportunities related to health and nutrition, applying for or being awarded a Healthier US School Challenge, Smarter Lunchrooms recognition, sponsoring health fairs, offering a TV turnoff week, and promoting family wellness activities. Local school wellness policies also may include the development and/or promotion of farm to school activities, such as school gardens, nutrition, culinary, and agriculture education, and use of local foods in child nutrition programs (for more information, see www.fns.usda.gov/farmtoschool). While nutrition education and promotion and physical activity are critical components in providing a healthy school nutrition environment, other school activities supporting nutrition and health are equally important. Wellness policy activities can and should be integrated across the entire school setting rather than limited to the cafeteria, other food and beverage venues, and school physical activity facilities. An LEA can take a coordinated approach to developing and implementing a wellness policy by addressing nutrition and physical activity through health education, physical education, school nutrition services, the physical environment, such as school gardens, family engagement, community involvement, health services, and social services.3 Under the final rule at § 210.30(c)(1), LEAs are also required to review and consider evidence-based strategies and techniques in establishing goals for nutrition promotion and education, physical activity, and other school based activities that promote student wellness. At a minimum, FNS expects LEAs to review ‘‘Smarter Lunchroom’’ tools and strategies, which are evidencebased, simple, low-cost or no-cost changes that are shown to improve student participation in the school 3 http://www.cdc.gov/healthyyouth/wscc/ index.htm. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 50157 meals program while encouraging consumption of more whole grains, fruits, vegetables, and legumes, and decreasing plate waste (for more information, see https:// healthymeals.nal.usda.gov/healthierusschool-challenge-resources/smarterlunchrooms). The following are examples of evidence-based strategies that have been shown to improve the likelihood that children will make the healthier choice: using creative names for fruits and vegetables and targeted entrees, training staff to prompt students to select fruits and vegetables, placing unflavored milk in front of other beverage choices, and bundling ‘‘grab and go’’ meals that include fruit and vegetable items. Accordingly, this final rule codifies § 210.30(c)(1) to include goals for nutrition promotion and education, physical activity, and other schoolbased activities that promote student wellness. In developing these goals, LEAs must review and consider evidence-based strategies and techniques. Nutrition Guidelines for All Foods Proposed Rule: The proposed rule would require in § 210.30(c)(2) that the local school wellness policy include nutrition guidelines for all foods and beverages available to students on each participating school campus under the LEA during the school day. This requirement, consistent with HHFKA, ensures that policies include guidance about foods and beverages available for sale that is consistent with the regulations governing school meals and competitive foods for sale in schools (Smart Snacks in Schools), and also encourages districts to establish standards for foods made available, but not sold, during the school day on school campuses. Public Comments: Approximately 55,000 commenters stated support for wellness policies including nutrition guidelines for all foods available in schools. The majority of these commenters submitted comments as part of several large form letter campaigns. Only four individuals generally opposed the proposed requirement. Other comments opposed application of the nutrition guidelines in certain specific settings or under specific circumstances. Approximately 20 commenters specifically opposed requiring that local school wellness policies containing nutrition guidelines for food sold during school fundraisers be consistent with the competitive food standards established in § 210.11. An additional 30 commenters opposed the requirement that food and beverages E:\FR\FM\29JYR2.SGM 29JYR2 asabaliauskas on DSK3SPTVN1PROD with RULES 50158 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations served during classroom parties be consistent with competitive food standards. Approximately 60 commenters generally addressed the requirement that local wellness policies include nutrition guidelines for foods that are available but not sold on school campuses during the school day. Most of those commenters expressed general support and five commenters generally opposed the requirement. Others suggested that FNS encourage, but not require, that the wellness policies contain guidelines that are consistent with the competitive foods standards for foods available, but not sold on school campuses. A few commenters expressed support but many commenters opposed requiring foods served during classroom parties and school celebrations to be consistent with competitive food standards. Most commenters opposed to the requirement, stated that telling parents what they can and cannot bring to school for classroom parties is overreach by the Federal Government. Commenters also specifically addressed policies governing food-related rewards and incentives, and several commented that foods used as rewards and incentives should not have to meet competitive food standards. FNS Response: Section 9A(b)(2)(A) of the NSLA, 42 U.S.C. 1758b(b)(2)(A) requires that each local school wellness policy must include nutrition guidelines for all foods and beverages available for sale on the school campus during the school day to ensure they are consistent with the statutory and regulatory provisions governing school meals (§§ 220.8 and 220.10) and competitive foods (§ 210.11) as applicable. HHFKA also requires that the policy address standards for foods and beverages available on the school campus during the school day that are not sold (for example, foods provided at classroom parties and school celebrations and food offered as rewards and incentives). Standards included in the local school wellness policy for sold and non-sold foods could include information on the types of foods and beverages available on the school campus during the school day, and as appropriate and applicable, the general or specific nutrient profile of those foods and beverages. FNS encourages LEAs to support lifelong healthy eating habits as well as consider the nutrition and energy needs of children when establishing standards for these foods and beverages. It is important to remember that the Federal competitive food standards are minimum standards. State agencies and LEAs have discretion to adopt more VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 stringent standards for the types of food and beverages allowed to be sold and also may limit the frequency of fundraisers that may include foods that do not meet Federal competitive foods standards. A local school wellness policy can be an excellent tool for establishing LEA-specific standards and communicating them to students, parents, and other stakeholders. Further, local school wellness policies can serve as a vehicle to explain to the public and the school community the nutrition standards for school meals as well as other State or local policies related to school meals, other foods available in schools, and broader wellness policies. Neither the proposed rule nor this final rule would require schools to apply competitive food standards to foods and beverages that are simply available but not sold in school during the school day. Foods sold must meet competitive foods and meal pattern requirements, unless exempted under law or regulations, but foods available for classroom parties or provided as a reward to students are not required to meet those same standards. LEAs simply need to have a policy in place that addresses foods provided in school, but not made available for sale. Because local governments are in the best position to make individual food choices for their communities, FNS agrees that decisions about foods available in school during the school day should be made at the LEA or school level with community input. The proposed rule did not delineate the standards LEAs were required to use when developing policies for foods and beverages provided on campus, but not available for sale. Instead, FNS provided examples of policies that LEAs may want to address, including those related to classroom parties or school celebrations that involve food, foodrelated rewards or incentives, and other State or local policies or nutrition standards for foods and beverages available that promote student health and reduce childhood obesity. This rule does not require LEAs to address standards for food brought from home for individual consumption. To clarify the difference in requirements between all foods sold and all foods provided, but not sold, during the school day, FNS has separated these provisions in the final rule. The final rule requires that the local school wellness policy include standards and nutrition guidelines for all foods sold in schools and requires that those guidelines are consistent with the applicable Federal school meal requirements and competitive foods standards, as defined by statute and PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 regulation. In addition, the final rule requires that local school wellness policies include standards for all foods provided, but not sold, in schools during the school day. However, the final rule does not require that local school wellness policy standards for foods provided in schools during the school day but not available for sale conform to the school meal requirements or the competitive foods standards. Again, it should be noted that with regard to foods provided, but not sold, in schools, local jurisdictions have the discretion to adopt standards that conform to Federal school meal and competitive food standards or to adopt more or less stringent standards. Accordingly, this final rule codifies in § 210.30(c)(2) a provision requiring that local school wellness policies include a local jurisdictions’ own standards for all foods and beverages provided, but not sold, during the school day on each participating school campus In addition, this final rule includes a new paragraph § 210.30(c)(3) that incorporates the proposed provision requiring local school wellness policies to include nutrition guidelines for all foods sold under the jurisdiction of the local educational agency that are consistent with the applicable school meal requirements and competitive food standards. Policies for Food and Beverage Marketing Proposed Rule: FNS proposed in § 210.30(c)(2)(iii) that local school wellness policies permit marketing on the school campus during the school day of only those foods and beverages that meet the competitive foods requirements. Public Comments: The proposed requirement that local school wellness policies restrict food and beverage marketing in schools was addressed by approximately 57,300 commenters. Most of those comments were submitted as part of several large form letter campaigns. Most of the commenters expressed support for the proposed requirement, while only eight commenters generally opposed the requirement that local school wellness policies include a component restricting food and beverage marketing. A few commenters questioned USDA’s authority to regulate food and beverage marketing in schools while one commenter stated the proposed limitations on marketing did not go far enough. A school district and an individual suggested the restriction would be a burden to schools. Eighty commenters who were generally supportive of the proposed E:\FR\FM\29JYR2.SGM 29JYR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations food and beverage marketing restrictions stated that the competitive food nutrition standards should be the minimum standard for food and beverage marketing policies. Most of these commenters further stated that LEAs should be assured that they are free to implement stronger standards for marketing, including extending the marketing standards beyond the school day, using local or State competitive food standards if those local or State standards go beyond the Federal competitive food standards, or restricting all marketing of food and beverages in schools. Seven commenters recommended that FNS should allow in-school marketing of food and beverage items that fit within the NSLP and SBP nutrition standards. Approximately 200 commenters stated that there should be a prohibition against brand marketing unless every food and beverage product manufactured, sold, or distributed under the brand name meets the competitive foods nutrition standards or the school’s more stringent competitive food standards. Most of those comments were submitted as part of two form letter campaigns. Two advocacy organizations also addressed the issue of copycat products, where a company reformulates one product in a brand’s otherwise unhealthy product portfolio to meet school nutrition standards. These commenters stated that the marketing of such products should be explicitly prohibited by local school wellness policies because they undermine school nutrition education efforts and overall healthy eating. Commenters provided examples of other types of food and beverage marketing that should be prohibited or otherwise restricted by the final rule including incentive programs and other corporate-sponsored programs; advertisements on school-owned, leased, operated, or used buildings, equipment, supplies, etc.; market research activities; free samples; and corporate-sponsored scholarships. Additionally, most of those commenters urged FNS to clarify that materials developed for academic settings such as curricula, textbooks, Web sites, and radio and television content sponsored by companies, should all be covered by the policy. Commenters also provided examples of other types of food and beverage marketing that should not be prohibited or otherwise restricted by the final rule. A large number of those commenters said that materials used for educational purposes, with incidental marketing, should not be prohibited. VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 Several commenters suggested that corporate-sponsored activities where there is only an incidental or unintentional advertising impact should be exempt from the marketing restriction. A commenter asked FNS to clarify that the regulation is intended to address only communications intentionally directed to the school environment as opposed to communications that may incidentally reach the school environment. Another commenter sought clarification as to whether partnerships with community restaurants who sponsor fundraising nights where a portion of the restaurant’s profits that night go to the school would be considered food and beverage marketing, and therefore prohibited by the rule. FNS Response: For purposes of this final rule, marketing is defined as advertising and other promotions in schools. Food marketing commonly includes oral, written, or graphic statements made for the purpose of promoting the sale of a food or beverage product made by the producer, manufacturer, seller, or any other entity with a commercial interest in the product.4 Food and beverage marketing are commonly present in areas of the school campus that are owned or leased by the school and used at any time for school-related activities such as the school building or on the school campus, including on the outside of the school building, areas adjacent to the school building, school buses or other vehicles used to transport students, athletic fields and stadiums (e.g., on scoreboards, coolers, cups, and water bottles), or parking lots. FNS agrees with the majority of commenters who support permitting marketing on the school campus during the school day of only those foods and beverages that meet competitive foods standards. Food and beverage marketing is prevalent in schools, and the majority of foods and beverages marketed to children are low in nutritional value and high in fat and sodium.5 Many of the foods and beverages that are heavily marketed to children contribute to poor diet quality, high calorie intake, and 4 National Policy & Legal Analysis Network to Prevent Childhood Obesity. District Policy Restricting Food and Beverage Advertising on School Grounds. Available from: http:// changelabsolutions.org/publications/district-policyschool-food-ads. 5 Federal Trade Commission. A Review of Food Marketing to Children and Adolescents: Follow Up Report, 2012. https://www.ftc.gov/sites/default/ files/documents/reports/review-food-marketingchildren-and-adolescents-follow-report/ 121221foodmarketingreport.pdf. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 50159 excess weight gain.6 However, the majority of schools do not have policies restricting food and beverage marketing to children. Therefore, in this final rule, for those LEAs that choose to allow marketing of food and beverages to students, the LEAs are required to include in their local school wellness plans policies that allow the marketing of only those foods and beverages that may be sold on the school campus during the school day (i.e., that meet the competitive foods standards). The marketing of products on the exterior of vending machines, through posters, menu boards, coolers, trash cans, and other food service equipment, as well as cups used for beverage dispensing are all subject to local school wellness policy standards. Under these standards, the logos and products marketed in these areas and items are required to meet the competitive foods standards for foods sold in schools. Although the Federal Local Wellness policy standards for marketing do not apply to marketing that occurs at events outside of school hours such as after school sporting or any other events, including school fundraising events, LEAs have discretion to enact broader policies that address these situations. The rule does not require schools to immediately replace menu boards, coolers, tray liners, beverage cups, and other food service equipment with depictions of noncompliant products or logos to comply with new local school wellness policy standards. This final rule also is not intended to require that an LEA must remove or replace an existing scoreboard on a sports field or in a gymnasium in order to comply with this requirement. However, as the school nutrition services review/ consider new contracts and as scoreboards or other such durable equipment are replaced or updated over time, replacement and purchasing decisions should reflect the applicable marketing guidelines established by the LEA in the wellness policy. This final rule does not require local school wellness policies to include standards that establish limits on personal expression, opinions, or products. For example, this regulation would not apply to clothing or personal items used by students or staff, or the packaging of products brought from home for personal consumption. In addition, the requirements of the final rule for local school wellness policies do not apply to materials used for 6 Cheyne A, Mejia P, Nixon L, Dorfman L. Food and Beverage Marketing to Youth. Current Obesity Reports. 2014. http://www.bmsg.org/sites/default/ files/bmsg_food_and_bev_mktg_to_youth.pdf. E:\FR\FM\29JYR2.SGM 29JYR2 50160 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES educational purposes in the classroom, such as teachers’ use of soda advertisements as a media education tool; or when implementing a health or nutrition education curriculum. It is also not intended to imply that schools must allow food or beverage marketing on campus. This regulation requires local school wellness plans to establish only minimum standards for food and beverage marketing restrictions. State agencies and LEAs may choose to adopt more stringent policies for food and beverage marketing. FNS would like to respond to the recommendation that the final rule allow in-school marketing of foods and beverages that meet the NSLP and SBP meal pattern standards. School meals are considered a unit that is comprised of several food components. Alternatively, competitive foods standards look at the nutrition standards of an individual food item. Because school meal programs do not have standards for individual food items, it would be difficult, and even inconsistent, to allow marketing of foods and beverages that ‘‘meet the school meal patterns.’’ Regarding brand marketing and copycat products, FNS understands commenters’ concerns with companies advertising brands that market unhealthy foods in addition to healthy food products. The final rule provides discretion enabling LEAs to determine what is in the best interest of their respective school communities. LEAs may choose to include a more stringent marketing standard for brand marketing and copycat products in their local school wellness policy; they may simply eliminate advertising of all brands that market unhealthy foods; or they may allow both brand marketing and copycat products to be marketed in schools as long as food and beverages to be marketed in schools as long as they meet competitive foods standards. Accordingly, this final rule codifies proposed § 210.30(c)(3)(iii) and permits marketing on the school campus during the school day of only those foods and beverages that meet competitive foods standards in § 210.11. Public Notification Proposed Rule: The proposed rule would require in § 210.30(d)(2) that LEAs inform the public about the content of the local school wellness policy and make the local school wellness policy and any updates to the policy available to the public on an annual basis. Public Comments: General support for the proposed requirement was expressed by approximately 57,200 VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 commenters. Most comments were submitted as parts of several large form letter campaigns. Only a local school nutrition association and a State department of education generally opposed the requirement, stating that it would be an administrative burden on school districts. Approximately 80 of the commenters, including numerous national associations and advocacy organizations, numerous individuals and an institutional investment center, who expressed general support for the proposed requirement that LEAs inform and update the wellness policy specifically expressed support for the proposed requirement that LEAs actively notify households regarding local school wellness policies. Nine commenters also provided suggestions as to how LEAs and schools can inform the public about the wellness policy and provide as much information as possible about the school nutrition environment. An advocacy organization recommended that FNS require local school wellness policies be posted at the school site, such as in the front office or main entrance. An education association suggested that LEAs be required to post local school wellness policies on the parent or family pages of the LEA or school Web site. Two advocacy organizations also suggested FNS require LEAs to ensure that the local wellness policy and any public announcement related to the policy, is available in the languages that represent the school community. FNS Response: This final rule retains the requirement in the proposed rule that LEAs or schools must notify households on an annual basis of the availability of the local school wellness policy information and provide information that would enable interested households to obtain additional details. FNS strongly encourages LEAs to provide as much information as possible to their communities about the school nutrition environment. While FNS agrees that sharing the local school wellness policy in many locations is useful in notifying families about the content and implementation of the policy, FNS recognizes that LEAs are best-suited to determine specific methods for publicizing the information, since LEAs communicate with households using various methods. This final rule, therefore, provides LEAs flexibility to determine the most effective method of providing this notification within their communities. For example, LEAs could post the local school wellness policy on the school or LEA’s Web site and send a message to families notifying them of how they may PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 obtain a copy or otherwise access the policy. In addition to the online posting option, a copy of the local school wellness policy could be posted at each physical school site, such as in the front office or main entrance. Furthermore, the LEA could present the information during a meeting with the Parent Teacher Association/Organization, school board, district superintendent, school/district health and wellness committee, or other interested groups or stakeholders. Other examples of methods for public information sharing with the larger community include notifications through local newspapers or the media that link to a Web page on the school or LEA’s Web site. FNS strongly recommends LEAs make concerted efforts to ensure that the local school wellness policy and any public announcement related to the policy is available in the languages that represent the school community. LEAs are also required to make available to the public the results of the triennial assessment, and actively notify households of the availability of the assessment results. Accordingly, this final rule codifies in § 210.30(d)(2), the proposed requirement that LEAs inform the public about the content of the local school wellness policy and make the local school wellness policy and any updates to the policy available to the public on an annual basis. Implementation, Assessments and Updates Proposed Rule: Under proposed § 210.30(e)(2) and (e)(3), LEAs must: • Annually report on each of its schools’ progress toward meeting the local school wellness policy goals over the previous school year; • Assess compliance with local school wellness policies at least once every three years; and • Make appropriate updates or modifications to the local school wellness policies based on the triennial assessments and annual reports. Public Comments Approximately 54,700 commenters addressed the proposed requirements related to implementation, assessments, and updates and most of those commenters stated general support for the proposed requirements. Most of those commenters submitted comments as part of several large form letter campaigns. Twelve commenters, including State departments of education, a school district, and nutrition services departments, stated opposition due to concerns regarding administrative burden and redundancy. E:\FR\FM\29JYR2.SGM 29JYR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations Specifically, commenters expressed concern about the monitoring and reporting burden the proposed rule would place on large school districts. Noting the administrative burden to districts of requiring each individual school to annually report on their wellness policies, an individual commenter recommended that all reporting should be done at the district level. To reduce the burden on LEAs, a State department of education recommended annually reporting progress for the LEA and a representative sample of schools under its jurisdiction. Commenters also suggested FNS provide additional information on how the annual progress report differs from the triennial assessment. FNS also received comments on the contents and format of annual reports as proposed in § 210.30(e)(2). Commenters recommended including how implementation will be tracked and measured across all schools in each State, as well as how successful implementation will be defined. A local health department suggested collecting Body Mass Index (BMI) data of students to measure outcomes of local school wellness policies. A coalition of advocacy organizations suggested FNS identify specific data elements that should be included in these reports. Several commenters stated the school wellness report card format would be useful for the annual reports, and one commenter suggested FNS require in the final rule that LEAs create an annual school wellness report card and specify the contents of the report card. Another commenter recommended FNS allow districts to use existing data collection methods in order to reduce burden. In response to FNS’ inquiry regarding annual reporting of progress on achieving goals, nine commenters said that the annual frequency of progress reporting would be overly burdensome. They specifically noted that monitoring, reporting, preparing, and publishing progress reports annually would be overly burdensome, especially in a large LEA, and would require significant resources. A commenter, while agreeing that the public should be informed, stated that annual reporting would increase staffing needs. In contrast, a commenter recommended the frequency of progress reports should be at least twice per school year as a means to hold schools accountable. Commenters also addressed the minimum content requirements of the triennial assessment. Three commenters expressed concern that requiring an LEA to assess each of its schools triennially will be overly burdensome. VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 One State department of education suggested establishing a single standard State model local school wellness policy that all LEAs in the State measure against to ensure consistency in a State. One commenter also recommended FNS issue guidance that provides examples of acceptable model wellness policies. In response to FNS’ inquiry as to whether the three-year frequency would keep the community informed without being overly burdensome to LEAs, a State department of education and a school district nutrition services department indicated it would be too burdensome for small districts, and another commenter agreed the frequency is appropriate. In contrast, one State department of education and one individual stated that three years is too long to wait for feedback and may not be sufficient to ensure schools are on target with their goals. FNS Response: The final rule eliminates the requirement for LEAs to annually report progress made toward meeting local school wellness policy goals, which was included in the proposed rule. However, this final rule retains the requirement in the proposed rule that each LEA assess, at least once every three years (triennially), compliance with the local wellness policy. LEAs are also required to annually notify the public about the content of the local school wellness policy and any updates to the policy. The intent of these public updates and policy assessment requirements is to promote public transparency and ensure families, including new school enrollees, have regular and easy access to information about the wellness environment of the school their child attends. In developing the final rule, FNS recognized it was important to balance the need to inform families and the community about the implementation of the local school wellness policy with the potential burden of assessing compliance, particularly for LEAs with a large number of schools. Therefore, this final rule requires, at § 210.30(d)(2), that LEAs inform families and the public each school year of basic information about the local school wellness policy including its content and implementation. LEAs may determine the optimal time for providing the information, although FNS recommends that the information be provided early in the school year. In the proposed rule, FNS specifically requested commenters’ input regarding the frequency of both the annual reporting and assessments, in order to assess and limit the burden for LEAs. As noted above, commenters stated that the PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 50161 annual frequency of progress reporting in addition to triennial assessments would be overly burdensome. FNS agrees and has removed from the final rule the requirement for LEAs to annually report progress of local school wellness policy implementation. This final rule requires at § 210.30(e)(2) an assessment of the local school wellness policy to be conducted, at a minimum, every three years. However, LEAs can choose to assess their policies more frequently to ensure goals and objectives are being met and to refine the policy as needed. The results of this assessment must be made available to the public to showcase the wellness efforts being made by the LEA with indications about how each school under the jurisdiction of the LEA is in compliance with the LEAs’ wellness policy. While some commenters also suggested that the triennial assessments would be burdensome, FNS determined there would be less burden for LEAs and schools because the annual reporting requirements have been omitted from the final rule. Additionally, removing the annual reporting requirement eliminates the concern that there would be redundancy in conducting both an annual report and triennial assessment. For LEAs as a whole, eliminating the proposed annual reporting requirement removes an estimated 83,432 hours of burden associated with public disclosure of the proposed report. There are a variety of methods an LEA may employ to assess compliance by schools and determine progress toward benchmarks, objectives, and goals. Developing a wellness policy with measurable objectives, and realistic annual benchmarks will help when it is time to evaluate progress. Additionally, the local school wellness policy team and leadership can be assets in conducting periodic assessments. Various resources have already been identified or developed to support LEAs with the wellness policy process. These resources can be accessed at USDA’s School Nutrition Environment and Wellness Resources Web site (http:// healthymeals.nal.usda.gov/schoolwellness-resources), including resources to support LEAs with assessing implementation of their local school wellness policy (http:// healthymeals.nal.usda.gov/localwellness-policy-resources/local-schoolwellness-policy-process/assessmentmonitoring-and) and model wellness policies (http://www.fns.usda.gov/ school-meals/local-school-wellnesspolicy). States are welcome to develop their own models for LEAs within their E:\FR\FM\29JYR2.SGM 29JYR2 50162 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES jurisdiction. FNS will continue to work with ED and HHS to identify and update resources and provide technical assistance in this area. While annual progress reporting has been removed from the final rule, it is important to note that under § 210.30(d)(2), the annual public notification requirement is still in place. LEAs or schools must notify households of the availability of the local school wellness policy information, including the Web site address or other information that would enable interested households to obtain additional information. FNS strongly encourages LEAs to provide as much information as possible to their communities about the school nutrition environment. As discussed previously in this final rule, at a minimum LEAs must annually inform and update the public about the content and implementation of the local school wellness policy. LEAs must also provide the position title of the designated local agency official(s) or school official(s) leading/coordinating the school wellness policy committee. FNS encourages LEAs or schools to include a summary of each school’s events or activities related to local school wellness policy implementation, the name and contact information of the designated local agency official(s) or school official(s) leading/coordinating the school wellness policy committee, and information on how the public can get involved with the school wellness policy committee. Accordingly, the final rule codifies the triennial assessment requirement in § 210.30(e)(2) and removes the proposed requirements related to the annual progress reports, including provisions that would have required informing the public about progress toward meeting the goals of the local school wellness policy (proposed § 210.30(d)(3)), annual reporting (proposed § 210.30(e)(2)), making updates or modifications based on annual progress reports (proposed § 210.30(e)(4)), and retaining documentation of annual progress reports for recordkeeping (proposed § 210.30(f)(4)). Recordkeeping Requirement Proposed Rule: Under proposed § 210.30(f), each LEA must maintain records to document compliance with local school wellness policy requirements. These records include but are not limited to: • The written local school wellness policy; • Documentation demonstrating compliance with community involvement requirements, including VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 requirements to make the local school wellness policy, annual progress reports, and triennial assessments available to the public; • Documentation of the triennial assessment of the local school wellness policy for each school under its jurisdiction; and • Documentation of annual local school wellness policy progress reports for each school under its jurisdiction. Public Comments: Approximately 55 commenters addressed the proposed requirement, and of these, 50 commenters expressed support for the proposed recordkeeping requirements. These commenters included various stakeholders, including 28 participants in a form letter campaign. To avoid additional burden on schools, commenters recommended FNS clarify that the annual progress reports and the triennial assessments may be used to meet the recordkeeping requirement. Two individual commenters stated that the proposed recordkeeping requirements are unnecessary to ensure each LEA has an effective wellness policy. One commenter expressed concern that as a result of the administrative burden, some LEAs may withdraw from the school meal programs. FNS Response: This final rule establishes that each LEA must retain records to document compliance with the local school wellness policy requirements. FNS recognizes schools have many responsibilities and agrees with commenters that it is important to avoid additional burden on schools. However, it is important to remember that schools already maintain records for their existing local school wellness policies; these records are important for the administrative review of programs because they help document LEA activities regarding the local school wellness policy. Having recordkeeping documents already on file will satisfy administrative review requirements as well as allow the review process to go smoothly, which may ultimately reduce the burden schools face. Based on the number of supportive comments and the reduction in the administrative burden in this final rule due to the elimination of the annual reporting requirement, FNS disagrees that LEAs will withdraw from the school meal program due to the administrative burden associated with local wellness policies. Accordingly, this final rule retains the proposed recordkeeping provision, with the exception of documentation of annual progress reports; records retained by LEAs must include: • The written local school wellness policy; PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 • Documentation demonstrating compliance with community involvement requirements; • Documentation of the triennial assessment of the local school wellness policy; and • Documentation to demonstrate compliance with the annual public notification requirements. Documentation demonstrating compliance with community involvement requirements may include, for example, a copy of the solicitation on the LEA/school Web site or school newsletter. Documentation to demonstrate compliance with the public notification requirements may include, for example, a copy of the LEA/school Web page where the local school wellness policy has been posted or a copy of the school newsletter or local newspaper. FNS will work with State agencies to prove technical assistance on documentation requirements and address questions that may arise during implementation. In addition, FNS will continue working with partners to clarify any implementation issues that may impact participation in the NSLP and SBP. Accordingly, the final rule codifies in § 210.30(f), the proposed requirement that each local educational agency must retain records to document compliance with the requirements of this section. Related Information Timeline for Implementation Proposed Rule: The local school wellness policy proposed rule did not propose a date by which LEAs would need to comply with the proposed requirements. Public Comments: The timeline for implementing the requirements was addressed by approximately 55,000 commenters. The majority of those comments were submitted as part of several large form letter campaigns. In general, commenters expressed support for establishing a timeline for implementation and most of the comments urged FNS to finalize the rule quickly and to work with schools to ensure full implementation. Many commenters recommended that FNS require implementation between one and two years after the rule is finalized. A department of education explained that the one to two year requirement would provide LEAs with one year of planning time, which would be needed to develop the new infrastructure, and additional time for implementation. Several commenters, including two health associations and a coalition of school districts, recommended that FNS require implementation within one year E:\FR\FM\29JYR2.SGM 29JYR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations to provide schools adequate preparation time and also ensure that children benefit quickly. A health association suggested implementation during the 2015–16 school year because it would most effectively protect children’s health and would provide FNS and schools sufficient time to prepare and implement the standards. A health advocacy organization suggested specifying the date FNS will release the model policies and best practices, and include a deadline for LEAs to publish their wellness policies. Three commenters recommended the timeline be flexible, allowing LEAs and schools sufficient time to adjust to required changes and to account for the variability in existing wellness policies. A school district suggested that school districts will need multiple years to develop and transition to the proposed assessment system, especially if no new funding is available. Six individual commenters suggested that FNS require LEAs to implement the policies within one to three years following the date the rule is finalized. Two school food service staff expressed concern over the amount of recent regulations and suggested an extended period for implementation. One of the school food service staff urged FNS to wait until schools have had sufficient time to implement competitive foods nutrition standards and suggested waiting two or more years prior to implementation. Three commenters addressed potential timelines for implementing the proposed marketing requirements. One of the commenters requested that FNS provide significant time, while another recommended FNS ensure the implementation timeline does not impact current contracts between LEAs and vendors. Another of the commenters suggested a three year timeline stating that it will be a challenge for schools to implement wellness policies concurrently with other requirements. FNS Response: In response to commenters’ concerns, this final rule becomes effective on August 29, 2016. By that date, LEAs must begin developing a revised local school wellness policy. LEAs must fully comply with the requirements of the final rule by June 30, 2017. By SY 2017– 2018, LEAs must complete a triennial assessment. FNS acknowledges the first few years of implementation may be challenging as new groups work together to establish a healthy school nutrition environment. FNS also recognizes that LEAs need planning time to develop the infrastructure and ensure all parties are well informed and trained to meet the VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 new requirements. State agencies and FNS will assist LEAs in the transition to these new requirements by the focusing on technical assistance during administrative reviews to facilitate implementation of the local school wellness policy requirements. It is important to understand that 99 percent of students in public schools are enrolled in districts that already have wellness policies in place. LEAs and schools have been implementing local school wellness policies since school year 2006, pursuant to Federal requirements. As discussed in the Regulatory Impact Analysis, most schools have local school wellness policies that meet at least some of the requirements under the Child Nutrition Act, and many have incorporated elements that were newly required under HHFKA. However, many LEAs will likely need to update their wellness policies to be in full compliance with this final rule. LEAs may begin or continue implementing these provisions prior to the effective date provided in this final rule. FNS currently has available more than 100 tools and resources on the School Nutrition Environment and Wellness Resources Web site, which LEAs and schools may consult for information and resources on implementing, enhancing, and maintaining local school wellness policies. In addition, FNS continues to regularly offer presentations and webinars to various audiences detailing the requirements of the local school wellness policy. Accordingly, this final rule is effective on August 29, 2016, as specified in the DATES section of this preamble. IV. Implementation Resources Healthy eating, physical activity, and wellness among children and adolescents are the goals of several government agencies. In an effort to combine efforts and resources, FNS convened a workgroup including ED and HHS, acting through CDC, in April 2011. This workgroup conducted several needs assessment activities to help determine the training and technical assistance needs of LEAs in implementing the local school wellness policy requirements. Based on this assessment, the workgroup developed a five-year technical assistance plan. The workgroup has identified best practices and success stories for local school wellness policy implementation as well as other technical assistance resources that will support LEAs in developing, updating and assessing their policies. To assist with implementation of the local school wellness policies, FNS has established a Web site (http:// PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 50163 www.fns.usda.gov/tn/local-schoolwellness-policy) that provides information about the Federal requirements, local process, technical assistance, tools and resources, monitoring, and funding a local school wellness policy. Tools and resources available on this Web site include materials to design, implement, promote, disseminate, and evaluate local school wellness policies, as well as overcome barriers to adoption of local school wellness policies. Furthermore, FNS’ Team Nutrition initiative has standards-based lessons plans and curricula for pre-kindergarten through Grade 8, classroom-based lesson plans, recipes, guidance to improve the quality of school meals, and other materials for nutrition education and promotion, including songs, games, posters, videos, event-planning booklet, wellness communication toolkit, school garden activities, and a graphics library. These resources and materials are available free of charge for schools that participate in Federal child nutrition programs (http://www.fns.usda.gov/tn/ resource-library). These materials also are available to the general public for download at no cost. In addition, the ‘‘School Nutrition Environment and Wellness Resources’’ Web site, operated by USDA National Agricultural Library’s Healthy Meals Resource System (Team Nutrition’s training and technical assistance component), helps LEAs find the resources they need to meet the local school wellness policy requirements and recommendations to establish a healthier school nutrition environment (http://healthymeals.nal.usda.gov/ school-wellness-resources). The ‘‘School Nutrition Environment and Wellness Resources’’ Web site has information and resources on: • Local School Wellness Policy Process steps to put the policy into action; • Required Wellness Policy Elements to meet the Federal requirements; • Healthy School Nutrition Environment improvements related to food and physical activity; • Samples, Stories, and Guidance ideas for schools including sample model wellness policies, and State school health policies and resources; • Research Reports on school wellness; and • Grants and funding opportunities related to child nutrition and physical activity. FNS and CDC have made available a collection of stories from a diverse group of schools that succeeded in improving students’ nutritional and physical activity status through their E:\FR\FM\29JYR2.SGM 29JYR2 50164 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations local school wellness policy. LEAs can read each story to gather implementation ideas on the steps and strategies other schools have used to implement wellness policies, including activities in key areas such as improving school meals and increasing physical activity levels among students. Best practice stories and strategies are available on the ‘‘School Nutrition Environment and Wellness Resources’’ Web site at http://healthymealsu.nal.usda.gov/local-wellness-policyresources/samples-stories-andguidance/success-storiesbest-practices. LEAs can use the Model Local School Wellness Policy to help create their local school wellness policy and meet the minimum Federal requirements for local school wellness policy implementation. This model local school wellness policy template was developed by the Alliance for a Healthier Generation, has been thoroughly reviewed by the FNS, and is in compliance with the statutory requirements for local school wellness policies, as well as this final regulation. This model wellness policy will be revised by the Alliance for a Healthier Generation to be consistent with this final regulation and reviewed by FNS to confirm compliance. Once completed, it will be made available, along with other sample wellness policies, on the ‘‘School Nutrition Environment and Wellness Resources’’ Web site at http:// healthymeals.nal.usda.gov/localwellness-policy-resources/modelwellness-policies. FNS will continue to identify, develop, and post resources to the Team Nutrition and ‘‘School Nutrition Environment and Wellness Resources’’ Web sites including guidance materials, Frequently Asked Questions, sample and model local school wellness policies that will help LEAs assess the extent to which the local school wellness policy compares to model local school wellness policies, as required under the triennial assessment. In addition, best practices and other technical assistance will be provided by FNS as needed to develop, implement, assess, and report on local school wellness policies that promote healthy school nutrition environments. asabaliauskas on DSK3SPTVN1PROD with RULES Procedural Matters Executive Order 12866 and Executive Order 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 VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 (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 designated a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget. Regulatory Impact Analysis Summary As required for all rules that have been designated significant by the Office of Management and Budget, a Regulatory Impact Analysis (RIA) was developed for this proposal. A summary is presented below. The complete RIA is included in the docket for this rule at www.regulations.gov. Need for Action The final rule updates the regulations governing the administration of USDA’s Child Nutrition Programs in response to statutory changes made by The Healthy, Hunger-Free Kids Act of 2010.7 Section 204 of the Healthy, Hunger-Free Kids Act of 2010 added section 9A to the Richard B. Russell National School Lunch Act. This new section requires local educational agencies (LEAs) to establish local wellness policies and expands the scope of existing wellness policies; brings additional stakeholders into the development, implementation, and review of local school wellness policies; and requires public updates on the content and implementation of the wellness policies. Benefits The 2004 legislation placed the responsibility for developing a local school wellness policy at the local level, so the unique needs of each school under the jurisdiction of the LEA could be addressed. Each LEA was required to establish a local school wellness policy that set goals for nutrition education, physical activity, and other schoolbased activities designed to promote student wellness, and to include nutrition guidelines for all foods available on the school campus during the school day. The legislation tasked the Secretary with developing regulations providing the framework and guidelines for LEA’s local school wellness policies, including minimum goals, nutrition guidelines, and requirements. PO 00000 7 Public Law 111–296. Frm 00034 Fmt 4701 Sfmt 4700 The final rule expands the scope of existing wellness policies, bringing additional stakeholders into the development, implementation, and review of local school wellness policies, and it also requires public updates on the content and implementation of the wellness policies. Specifically, it provides guidelines for local educational agencies and the Department regarding their roles in these policies, as required by the Healthy, Hunger-Free Kids Act of 2010. As documented in the Bridging the Gap study,8 there is substantial variability in local wellness policies, in the strength of those policies, and in policy enforcement, meaning that not all school children are benefitting from the policies in their schools. The final rule strengthens the requirements for the local wellness policies. Under the final rule, LEAs and schools are encouraged to identify specific, measurable objectives with attention to both long- and short-term goals. The wellness committee responsibilities have also been expanded to include oversight on policy implementation. LEAs must now designate at least one LEA official to be responsible for periodically determining the extent to which schools are in compliance with their wellness policies and the extent to which the policy compares with model policy. The final rule also includes a provision requiring that LEA local school wellness policies include standards that limit in-school marketing to only those foods and beverages that meet the standards in the Smart Snacks in Schools final rule. The new marketing requirement for local school wellness policies will mean that children are presented with images and signs that promote healthier foods and beverages and that the products that are marketed will match the snack foods and beverages that will be available in schools. Under the final rule, schools must also inform and update the public about 8 Chriqui JF, Resnick EA, Schneider L, Schermbeck R, Adcock T, Carrion V, Chaloupka FJ. School District Wellness Policies: Evaluating Progress and Potential for Improving Children’s Health Five Years after the Federal Mandate. School Years 2006–07 through 2010–11. Volume 3. Chicago, IL: Bridging the Gap Program, Health Policy Center, Institute for Health Research and Policy, University of Illinois at Chicago, 2013, www.bridgingthegapresearch.org. The Bridging the Gap study examined hard copies of written wellness policies from nationally representative samples of between 579 and 679 public school districts for each school year from SY 2006–2007 through SY2010–2011. Response rates in all years exceeded 90 percent. See p. 45 of the Bridging the Gap study for additional methodological information. E:\FR\FM\29JYR2.SGM 29JYR2 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations the content of their policies and the status of policy implementation. LEAs must also formally assess their policies to ensure that goals and objectives are being met. With greater transparency on the effectiveness of these policies, parents and other community stakeholders will be better informed and positioned to improve the school nutrition and wellness environment. As cited in Bridging the Gap, increasing numbers of peer-reviewed studies demonstrate the correlation between healthy nutrition and physical activity on the one hand and improved academic performance and improved classroom behavior on the other.9 A recent Institute of Medicine report found that ‘‘increasing physical activity and physical fitness may improve academic performance and that time in the school day dedicated to recess, physical education class, and physical activity in the classroom may also facilitate academic performance. . . . Available evidence suggests that mathematics and reading are the academic topics that are most influenced by physical activity. These topics depend on efficient and effective executive function, which has been linked to physical activity and physical fitness.’’ 10 Similar correlations between better fitness and better academic performance have been found in Texas among students in grades 3–12, among Massachusetts middle school students, and among Illinois 3rd and 5th graders.11 A literature review of 33 peerreviewed papers (including six studies using large, nationally representative studies) finds increasing evidence supporting the idea that schools’ policies on foods, beverages, and physical activity are correlated with calories consumed and expended by school age children, and even to children’s body mass indexes.12 Consequently, we believe that strengthening local wellness policies will have real positive effects on the health outcomes for students, though these benefits cannot be quantified nationally with precision using existing data given the lack of baseline or ongoing data about student health status. Finally, the rule requires LEAs to give increased attention to their implementation of the new school meal pattern requirements and the Smart Snacks in Schools requirements. As described in the regulatory impact analysis published with the school meals rule,13 the benefits of the new school meal pattern requirements 50165 include improved nutrition and diets to students and likely improved health outcomes. Furthermore, as described in the regulatory impact analysis published with the Smart Snacks in Schools rule, the benefits of the Smart Snacks in Schools rule likely include decreased consumption of solid fats and added sugars and decreased obesity rates. Costs/Administrative Impact There are no transfers as a result of this rule, and we estimate that there is no quantifiable economic impact beyond the new administrative, recordkeeping, and reporting requirements for LEAs established as a result of this rule. LEAs will face increased administrative, recordkeeping, and reporting burdens in order to conduct triennial assessments of wellness policies and policy implementation and retain documentation of these assessments. We estimate these costs to be approximately $4 million per year across the entire United States and note that they are attributable to statutory requirements, rather than discretionary regulatory requirements. A summary table of the estimated costs of the final rule is provided below. RECORD AND REPORTING REQUIREMENT COSTS FOR LOCAL SCHOOL WELLNESS POLICIES Fiscal year (millions) Administrative burden on LEAs 2016 2017 2018 2019 2020 Total Additional Reporting Burden on LEAs LEA must establish and/or update local wellness policies for all schools participating in NSLP ..................................... LEA must inform the public annually about the content and implementation of the local school wellness policy and any updates .......................................... LEA must conduct triennial assessments of schools’ compliance with the local school wellness policy and inform public about progress ................................. $2.6 $2.7 $2.8 $2.9 $13.6 0.5 0.5 0.5 0.6 0.6 2.7 0.9 0.9 0.9 0.9 1.0 4.5 3.9 Total Estimated Reporting Burden ... $2.6 4.0 4.2 4.3 4.4 20.9 0.1 0.1 0.7 Additional Recordkeeping Burden on LEAs asabaliauskas on DSK3SPTVN1PROD with RULES SFA/LEA must retain records to document compliance with the local school wellness policy requirements ............... 9 Chriqui 0.1 et al., 2013, p. 4. on Physical Activity and Physical Education in the School Environment, Food and Nutrition Board, Institute of Medicine, Educating the Student Body: Taking Physical Activity and Physical Education to School, edited by Kohl and Cook HD (Washington, DC: National Academies Press, 2013), available online at http:// www.ncbi.nlm.nih.gov/books/NBK201501/. 10 Committee VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 0.1 0.1 11 Troust, SG, Active Living Research, ‘‘Active education: physical education, physical activity, and academic performance.’’ Available online at http://activelivingresearch.org/files/ALR_Brief_ ActiveEducation_Summer2009.pdf. 12 Chriqui et al., 2013, p. 4. Chriqui FJ, Healthy Eating Research, Bridging the Gap, ‘‘Influence of competitive food and beverage policies on children’s diets and childhood obesity,’’ p. 6. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 Available online at http:// healthyeatingresearch.org/wp-content/uploads/ 2013/12/Competitive_Foods_Research_Review_ HER_BTG_7-2012.pdf. 13 Federal Register, Vol. 77, No. 17, pp. 4088– 4167. E:\FR\FM\29JYR2.SGM 29JYR2 50166 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations RECORD AND REPORTING REQUIREMENT COSTS FOR LOCAL SCHOOL WELLNESS POLICIES—Continued Fiscal year (millions) Administrative burden on LEAs 2016 Total Additional Administrative Burden on LEAs ................................. 2017 4.1 2018 4.2 2019 4.3 2020 4.4 Total 4.6 21.6 * The BLS, FY2014 employer cost for State and local government public administration employee wage rate is used in this estimate and inflated on a fiscal year basis by State and Local Price Index used in PB2016. asabaliauskas on DSK3SPTVN1PROD with RULES Regulatory Flexibility Act Summary This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601–612). It has been certified that this rule will have a significant impact on a substantial number of small entities. A summary is presented below. The complete RFA is included in the docket for this rule at www.regulations.gov. The requirements established by this final rule will apply to LEAs which meet the definitions of ‘‘small governmental jurisdiction’’ and ‘‘small entity’’ in the Regulatory Flexibility Act. The regulatory flexibility analysis considers the impact of the final rule on small businesses. The final rule has the potential to affect approximately 20,000 local educational agencies and some 105,000 schools operating in the U.S. We estimate that the administrative cost for schools will be on average about $41 per school per year. The marketing limitations in the final rule could affect vending machine operators and marketing companies as they change existing marketing to meet the requirements. Because of the changes in products available in schools due to the Smart Snacks in Schools interim rule, we believe that much of that change will already have occurred, but there may still be some labor costs associated with changing the marketing campaigns. It is expected that marketing in schools will not decrease; it will be updated to promote healthier foods and beverages. 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 2016 inflation; GDP deflator source: Table 1.1.9 at VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 http://www.bea.gov/iTable) 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. A school district and six individuals submitted comments asserting that the proposed rule represents an unfunded mandate. One individual commenter noted that this additional duty should not be placed on child nutrition directors without additional funding. The school district stated that FNS is estimating implementation costs to be quite low so that the Unfunded Mandates Reform Act does not apply. The other individual commenters made general statements that this rule results in an unfunded mandate. The provisions in this regulation are statutory requirements, not discretionary. Furthermore, FNCS has provided flexibilities for LEAs. For example, the rule allows the LEA to choose the appropriate LEA or school official responsible for oversight of the local wellness policy. Schools were previously required to have local wellness policies in place, the effort required to update local wellness policies to bring them into compliance with the requirements of this rule is estimated to be less than $5 million dollars per year. This is well below the $146 million threshold that triggers the cost benefit analysis required for unfunded mandates. The cost estimates for this rule are discussed in more detail above and in the complete Regulatory Impact Analysis included in the docket for this rule at www.regulations.gov. Based on these cost estimates, FNS has determined that 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. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 Executive Order 12372 The National School Lunch Program (NSLP), School Breakfast Program (SBP), State Administrative Expenses (SAE), Special Milk Program (SMP), Child and Adult Care Food Program (CACFP), and Summer Food Service Program (SFSP) are listed in the Catalog of Federal Domestic Assistance Programs under NSLP No. 10.555, SBP No. 10.553, SAE No. 10.560, SMP No. 10.556, CACFP No. 10.558, and SFSP No. 10.559, respectively and are subject to Executive Order 12372 which requires intergovernmental consultation with State and local officials (See 2 CFR chapter IV). The Child Nutrition Programs are federally funded programs administered at the State level. The Department headquarters and regional office staff engage in ongoing formal and informal discussions with State and local officials regarding program operational issues. This structure of the Child Nutrition Programs allows State and local agencies to provide feedback that forms the basis for any discretionary decisions made in this and other rules. Executive Order 13132 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. USDA has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a federalism summary impact statement is not required. Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have E:\FR\FM\29JYR2.SGM 29JYR2 50167 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation, however, FNS is not aware of any specific situations in which this would occur. This rule is not intended to have retroactive effect unless specified in the DATES section of the final rule. Prior to any judicial challenge to the provisions of this rule or the application of its provisions all applicable administrative procedures in § 210.18(q) or § 235.11(f) must be exhausted. Civil Rights Impact Analysis FNS has reviewed this rule in accordance with Departmental Regulations 4300–4, ‘‘Civil Rights Impact Analysis,’’ and 1512–1, ‘‘Regulatory Decision Making Requirements.’’ After a careful review of the rule’s intent and provisions, FNS has determined that this rule is not intended to limit or reduce in any way the ability of protected classes of individuals to receive benefits on the basis of their race, color, national origin, sex, age or disability nor is it intended to have a differential impact on minority owned or operated business establishments and woman-owned or operated business establishments that participate in the Child Nutrition Programs. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public 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. This rule contains information collection requirements subject to approval by OMB. A 60-day notice was embedded into the proposed rule, ‘‘7 CFR parts 210 and 220 Local School Wellness Policy Implementation Under the Healthy, Hunger-Free Kids Act of 2010,’’ published in the Federal Register at 79 FR 10693 on February 26, 2014, which provided the public an opportunity to submit comments on the information collection burden resulting from this rule. One commenter stated that this rule adds significant paperwork to already overworked Food Service Directors nationwide, specifically noting that the current three-year review cycle takes a month for preparation. The majority of the estimated burden for this final rule is in establishing local school wellness polices as required by the HHFKA. This is a one-time occurrence, but comprises an estimated 99,110 hours (63 percent) of the total estimated 156,923 hours. It is likely that the majority of LEAS have already established these policies; however, the burden needs to be accounted for in this final rule. Once every three years, a triennial assessment is required by the HHFKA and accounts for an estimated 33,035 hours annually (21 percent). Annually, the HHFKA required that LEAs inform the public and make any updates available to the public and this accounts 12.6 percent of the total burden. Retaining records accounts for an estimated 3 percent of the total burden. The burden associated with the Administrative Review, occurring every three years, is not part of this final rule. Another commenter suggested that the workload burden at the LEA level would be greater than USDA’s anticipated burden for larger districts. Based on comments received, FNS has removed from the final rule the proposed 210.30(e)(2) which would have required annual reporting of each school’s progress in meeting policy goals. Eliminating the proposed annual reporting requirement caused a significant reduction of 83,432 responses and 83,432 burden hours for public disclosure of the proposed report. The final rule clarifies that only LEAs are required to establish local school wellness policies, not each individual school which decreased the number of responses by 83,432; however, the estimated hours per response were increased accordingly to respond to comments regarding burden hours to ensure no decrease in the burden hours for this provision. In response to these comments, the changes between the proposed burden and the burden for the final rule resulted in an overall decrease of 63,565 hours for public disclosure and a decrease of 21,117 hours for recordkeeping. This is a new collection. The provisions in this final rule create new burden which will be merged into a currently approved information collection titled ‘‘National School Lunch Program’’ (NSLP), OMB Number 0584–0006, which expires on April 30, 2016. In accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with this final rule, which were filed under 0584–0592, have been submitted for approval to OMB. When OMB notifies FNS of its decision, FNS will publish a notice in the Federal Register of the action. FNS is requesting an estimated 151,967 hours for LEAs to publicly disclose local school wellness policies and their triennial assessment results. FNS is requesting an estimated 4,956 hours for recordkeeping requirements for LEAs. The following table reflects estimated burden associated with the new information collection requirements: ESTIMATED ANNUAL BURDEN FOR 0584–0592, LOCAL WELLNESS POLICY IMPLEMENTATION UNDER THE HEALTHY, HUNGER—FREE KIDS ACT OF 2010 [7 CFR Parts 210 and 220] Affected public 7 CFR reference Estimated number of respondents Frequency of response Total annual responses Estimated hours per response Estimated annual burden hours asabaliauskas on DSK3SPTVN1PROD with RULES Reporting Each LEA must update local wellness policies for all participating schools. LEAs must inform the public annually about the local wellness policy and make any updates available to the public. VerDate Sep<11>2014 19:58 Jul 28, 2016 210.30(a), 210.30(c)(5). 19,822 1 19,822 5 99,110 210.30(d)(2), 220.7 .. 19,822 1 19,822 1 19,822 Jkt 238001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\29JYR2.SGM 29JYR2 50168 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations ESTIMATED ANNUAL BURDEN FOR 0584–0592, LOCAL WELLNESS POLICY IMPLEMENTATION UNDER THE HEALTHY, HUNGER—FREE KIDS ACT OF 2010—Continued [7 CFR Parts 210 and 220] Affected public 7 CFR reference LEAs are required to conduct triennial assessments and make assessment results and any updates available to public. Total Estimated Burden. Reporting Estimated number of respondents 210.30(d)(3), (e)(2), (e)(3). Frequency of response Total annual responses Estimated hours per response Estimated annual burden hours 6,607 6,607 5 33,035 19,822 .................................. 1 2.3333 46,251 3.2857 151,967 Recordkeeping LEAs must retain records to document compliance with local school wellness policy requirements. Total Estimated keeping Burden. Record- 210.15(b)(9), 210.30(f). 19,822 1 19,822 0.25 4,955.5 .................................. 19,822 1 19,822 0.25 4,955.5 Total of Reporting and Recordkeeping Reporting ...................................... Recordkeeping ............................... .................................. .................................. 19,822 19,822 2.3333 1 46,251 19,822 3.2857 0.25 151,967 4,955.5 Total ........................................ .................................. 19,822 3.3333 66,073 2.375 156,923 TOTAL NO. RESPONDENTS ............................................................................................................................................................. AVERAGE NO. RESPONSES PER RESPONDENT .......................................................................................................................... TOTAL ANNUAL RESPONSES .......................................................................................................................................................... AVERAGE HOURS PER RESPONSE ................................................................................................................................................ 19,822 3.3333 19,822 2.375 TOTAL NEW BURDEN REQUESTED WITH NEW RULE .......................................................................................................... *156,923 SUMMARY OF BURDEN (OMB #0584–0592) * Upon approval by OMB these 156,923 hours will be merged with OMB #0584–0006. asabaliauskas on DSK3SPTVN1PROD with RULES E-Government Act Compliance The Food and Nutrition Service is committed to complying with the EGovernment 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. This rule promotes use of Internet for posting policy content and making implementation and updates transparent to public. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments This rule has been reviewed in accordance with the requirements of Executive Order 13175, ‘‘Consultation and Coordination with Indian Tribal Governments.’’ Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a governmentto-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have VerDate Sep<11>2014 21:12 Jul 28, 2016 Jkt 238001 substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The Food and Nutrition Service has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, the Food and Nutrition Service will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress. List of Subjects 7 CFR Part 210 Grant programs—education; Grant programs—health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs; Surplus agricultural commodities. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 7 CFR Part 220 Grant programs—education; Grant programs—health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs. Accordingly, for the reasons set forth in the preamble, 7 CFR parts 210 and 220 are amended as follows: PART 210—NATIONAL SCHOOL LUNCH ACT 1. The authority citation for part 210 continues to read as follows: ■ Authority: 42 U.S.C. 1751–1760, 1779. 2. In § 210.12, revise the section heading and add paragraph (e) to read as follows: ■ § 210.12 Student, parent, and community involvement. * * * * * (e) Local school wellness policies. Local educational agencies must comply with the provisions of § 210.30(d) regarding student, parent, and community involvement in the development, implementation, and E:\FR\FM\29JYR2.SGM 29JYR2 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations periodic review and update of the local school wellness policy. ■ 3. In § 210.15, add paragraph (b)(9) to read as follows: § 210.15 Reporting and recordkeeping. * * * * * (b) * * * (9) Records to document compliance with the local school wellness policy requirements as set forth in § 210.30(f). ■ 4. In § 210.18, add paragraph (h)(8) to read as follows: § 210.18 Administrative reviews. * * * * * (h) * * * (8) Local school wellness. The State agency must ensure the local educational agency complies with the local school wellness requirements set forth in § 210.30. * * * * * § 210.30, 210.31, and 210.32 [Redesignated as §§ 210.31, 210.32, and 210.33] 5. Redesignate §§ 210.30, 210.31, and 210.32 as §§ 210.31, 210.32, and 210.33 respectively. ■ 6. Add a new § 210.30 to read as follows: ■ asabaliauskas on DSK3SPTVN1PROD with RULES § 210.30 Local school wellness policy. (a) General. Each local educational agency must establish a local school wellness policy for all schools participating in the National School Lunch Program and/or School Breakfast Program under the jurisdiction of the local educational agency. The local school wellness policy is a written plan that includes methods to promote student wellness, prevent and reduce childhood obesity, and provide assurance that school meals and other food and beverages sold and otherwise made available on the school campus during the school day are consistent with applicable minimum Federal standards. (b) Definitions. For the purposes of this section: (1) School campus means the term as defined in § 210.11(a)(4). (2) School day means the term as defined in § 210.11(a)(5). (c) Content of the plan. At a minimum, local school wellness policies must contain: (1) Specific goals for nutrition promotion and education, physical activity, and other school-based activities that promote student wellness. In developing these goals, local educational agencies must review and consider evidence-based strategies and techniques; (2) Standards for all foods and beverages provided, but not sold, to VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 students during the school day on each participating school campus under the jurisdiction of the local educational agency; (3) Standards and nutrition guidelines for all foods and beverages sold to students during the school day on each participating school campus under the jurisdiction of the local educational agency that; (i) Are consistent with applicable requirements set forth under §§ 210.10 and 220.8 of this chapter; (ii) Are consistent with the nutrition standards set forth under § 210.11; (iii) Permit marketing on the school campus during the school day of only those foods and beverages that meet the nutrition standards under § 210.11; and (iv) Promote student health and reduce childhood obesity. (4) Identification of the position of the LEA or school official(s) or school official(s) responsible for the implementation and oversight of the local school wellness policy to ensure each school’s compliance with the policy; (5) A description of the manner in which parents, students, representatives of the school food authority, teachers of physical education, school health professionals, the school board, school administrators, and the general public are provided an opportunity to participate in the development, implementation, and periodic review and update of the local school wellness policy; and (6) A description of the plan for measuring the implementation of the local school wellness policy, and for reporting local school wellness policy content and implementation issues to the public, as required in paragraphs (d) and (e) of this section. (d) Public involvement and public notification. Each local educational agency must: (1) Permit parents, students, representatives of the school food authority, teachers of physical education, school health professionals, the school board, school administrators, and the general public to participate in the development, implementation, and periodic review and update of the local school wellness policy; (2) Inform the public about the content and implementation of the local school wellness policy, and make the policy and any updates to the policy available to the public on an annual basis; (3) Inform the public about progress toward meeting the goals of the local school wellness policy and compliance with the local school wellness policy by making the triennial assessment, as PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 50169 required in paragraph (e)(2) of this section, available to the public in an accessible and easily understood manner. (e) Implementation assessments and updates. Each local educational agency must: (1) Designate one or more local educational agency officials or school officials to ensure that each participating school complies with the local school wellness policy; (2) At least once every three years, assess schools’ compliance with the local school wellness policy, and make assessment results available to the public. The assessment must measure the implementation of the local school wellness policy, and include: (i) The extent to which schools under the jurisdiction of the local educational agency are in compliance with the local school wellness policy; (ii) The extent to which the local educational agency’s local school wellness policy compares to model local school wellness policies; and (iii) A description of the progress made in attaining the goals of the local school wellness policy. (3) Make appropriate updates or modifications to the local school wellness policy, based on the triennial assessment. (f) Recordkeeping requirement. Each local educational agency must retain records to document compliance with the requirements of this section. These records include but are not limited to: (1) The written local school wellness policy; (2) Documentation demonstrating compliance with community involvement requirements, including requirements to make the local school wellness policy and triennial assessments available to the public as required in paragraph (e) of this section; and (3) Documentation of the triennial assessment of the local school wellness policy for each school under its jurisdiction. PART 220—SCHOOL BREAKFAST PROGRAM 7. The authority citation for part 220 continues to read as follows: ■ Authority: 42 U.S.C. 1773, 1779, unless otherwise noted. 8. In § 220.7, add paragraph (h) to read as follows: ■ § 220.7 Requirements for participation. * * * * * (h) Local educational agencies must comply with the provisions of § 210.30 of this chapter regarding the E:\FR\FM\29JYR2.SGM 29JYR2 50170 Federal Register / Vol. 81, No. 146 / Friday, July 29, 2016 / Rules and Regulations development, implementation, periodic review and update, and public notification of the local school wellness policy. Dated: June 21, 2016. Kevin W. Concannon, Under Secretary, Food, Nutrition, and Consumer Services. [FR Doc. 2016–17230 Filed 7–28–16; 8:45 am] BILLING CODE 3410–30–P DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 210, 215, 220 and 235 [FNS 2014–0011] RIN 0584–AE30 Administrative Reviews in the School Nutrition Programs Food and Nutrition Service, USDA. ACTION: Final rule. AGENCY: As required by the Healthy, Hunger-Free Kids Act of 2010, this final rule revises the State agency’s administrative review process in the National School Lunch Program and School Breakfast Program to establish a unified accountability system designed to ensure that school food authorities offering school meals comply with program requirements. The updated administrative review process includes new procedures, retains key existing requirements from the Coordinated Review Effort and the School Meals Initiative, provides new review flexibilities and efficiencies for State agencies, and simplifies fiscal action procedures. In addition to establishing a unified administrative review process, this rule requires State Agencies public disclosure of a summary of the administrative review results. These changes are expected to strengthen program integrity through a more robust, effective, and transparent process for monitoring school nutrition program operations. DATES: This rule is effective September 27, 2016. FOR FURTHER INFORMATION CONTACT: Sarah Smith-Holmes, Child Nutrition Monitoring and Operations Support Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302; telephone: (703) 605–3223. SUPPLEMENTARY INFORMATION: asabaliauskas on DSK3SPTVN1PROD with RULES SUMMARY: I. Background Federally supported school nutrition programs are operated in 56 State VerDate Sep<11>2014 19:58 Jul 28, 2016 Jkt 238001 Agencies (SAs) with more than 100,000 schools and Residential Child Care Institutions participating. Ensuring that the programs are carried out in the manner prescribed in statute and regulation is a key administrative responsibility at every level. Federal, State, and local program staff share in the responsibility to ensure that all aspects of the programs are conducted with integrity and that taxpayer dollars are being used as intended. Improving program integrity and reducing improper payments has been a long-standing priority for the Department of Agriculture (USDA). Periodic program evaluations, including the Access, Participation, Eligibility and Certification (APEC) studies, show that improper payments result from errors made in the processes used to determine eligibility for free or reduced price meals, as well as from errors made during daily program operations and meal service. USDA and its SA partners have devoted significant time and effort in making system improvements and process reforms over the last several years, which are expected to improve integrity and deliver long-term reductions in error rates. These efforts include on-going technical assistance and implementation of reforms made by Public Law 111–296, the Healthy, Hunger-Free Kids Act of 2010 (HHFKA). Along with provisions aimed at improving program access and delivering healthier school meals, HHFKA reforms support program integrity through strengthening the use of direct certification, providing for community eligibility, establishing professional standards for school nutrition directors and staff, targeting a second review of applications in districts with high rates of application processing errors, and other provisions. USDA has already implemented the majority of these provisions through separate rulemaking. USDA has also established a new Office of Program Integrity for Child Nutrition Programs within the Food and Nutrition Service. SAs that administer the school meal programs play a primary role in ensuring school food authorities (SFAs) are properly operating the programs. In addition to providing training and technical assistance, SAs are responsible for regularly monitoring SFA operations. Nearly 25 years ago, in 1991 and 1992, USDA established regulations in 7 CFR 210.18 for an administrative review process to ensure SFAs complied with National School Lunch Program (NSLP) requirements. The process, known as Coordinated Review Effort (CRE), required SAs to conduct on-site PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 administrative reviews of SFAs once every five years, and covered critical and general areas of review. The CRE review focused primarily on benefit eligibility, meal counting and claiming procedures, meal pattern and other general areas of compliance. In 1995, SAs began to evaluate the nutritional quality of school meals under USDA’s School Meals Initiative (SMI). A key component of the SMI review was the SA’s nutrient analysis of the weekly school meals to determine compliance with Recommended Dietary Allowances for protein, calcium, iron and vitamins A and C; recommended minimum calorie levels; and the Dietary Guidelines for Americans. More recently, section 207 of the HHFKA amended section 22 of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1769c, to make five changes to the administrative review requirements. The first three were implemented through the final rule, Nutrition Standards in the National School Lunch and School Breakfast Programs (77 FR 4088), which was issued January 26, 2012. Those changes involved: (1) including both NSLP and School Breakfast Program (SBP) in the administrative review; (2) confirming that the weekly meals offered meet meal patterns and dietary specifications, which made the SMI obsolete; and (3) implementing a new 3year review cycle, as opposed to the former 5-year cycle. This rule does not make changes to these three previously promulgated provisions, but instead updates the administrative review procedures to reflect these changes. This final rule implements the remaining two statutory provisions from section 207 of HHFKA, requiring that: 1. The administrative review process be a unified accountability system in which schools in each local education agency (LEA) are selected for review based on criteria established by the Secretary; and 2. When any SFA is reviewed under this section, ensure that the final results of the review by the SA are posted and otherwise made available to the public on request in an accessible, easily understood manner in accordance with guidelines promulgated by the Secretary. This final rule largely reflects the updated administrative review process developed by the School Meals Administrative Review Reinvention Team (SMARRT), a 26-member team consisting of staff from Food and Nutrition Service (FNS) Headquarters, the seven Regional Offices, and SA staff from Kansas, Michigan, New York, North Carolina, Oregon, Pennsylvania E:\FR\FM\29JYR2.SGM 29JYR2

Agencies

[Federal Register Volume 81, Number 146 (Friday, July 29, 2016)]
[Rules and Regulations]
[Pages 50151-50170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17230]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

[FNS-2014-0010]
RIN 0584-AE25


Local School Wellness Policy Implementation Under the Healthy, 
Hunger-Free Kids Act of 2010

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule requires all local educational agencies that 
participate in the National School Lunch and School Breakfast Programs 
to meet expanded local school wellness policy requirements consistent 
with the requirements set forth in section 204 of the Healthy, Hunger-
Free Kids Act of 2010. The final rule requires each local educational 
agency to establish minimum content requirements for the local school 
wellness policies, ensure stakeholder participation in the development 
and updates of such policies, and periodically assess and disclose to 
the public schools'

[[Page 50152]]

compliance with the local school wellness policies. These regulations 
are expected to result in local school wellness policies that 
strengthen the ability of a local educational agency to create a school 
nutrition environment that promotes students' health, well-being, and 
ability to learn. In addition, these regulations will increase 
transparency for the public with regard to school wellness policies and 
contribute to integrity in the school nutrition program.

DATES: This rule is effective August 29, 2016. Compliance with the 
provisions of this rule must begin August 29, 2016.

FOR FURTHER INFORMATION CONTACT: Tina Namian, School Programs Branch, 
Policy and Program Development Division, Food and Nutrition Service, at 
(703) 305-2590.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Healthy, Hunger-Free Kids Act of 2010 (HHFKA), Public Law 111-
296, required significant changes in the Child Nutrition Programs to 
give eligible children access to nutrition benefits, improve children's 
diets and reduce childhood obesity, and strengthen integrity in the 
Child Nutrition Programs. Section 204 of the HHFKA added a new section 
9A to the Richard B. Russell National School Lunch Act (NSLA) (42 
U.S.C. 1758b) to expand the scope of wellness policies; bring 
additional stakeholders into the development, implementation, and 
review of local school wellness policies; and require periodic 
assessment and public updates on the implementation of the wellness 
policies. The local school wellness policies are an important tool for 
parents, local educational agencies (LEAs), and school districts in 
promoting student wellness and academic success through the National 
School Lunch Program (NSLP) and School Breakfast Program (SBP).
    The local wellness policy requirement was established by the Child 
Nutrition and WIC Reauthorization Act of 2004, and further strengthened 
by the HHFKA. As of school year (SY) 2006-2007, all LEAs participating 
in the NSLP and/or SBP were required to establish a local school 
wellness policy to promote the health of students and address the 
growing problem of childhood obesity. The responsibility for developing 
a local school wellness policy was placed at the LEA level so the 
unique needs of each school under the jurisdiction of the LEA can be 
addressed. By SY 2010, 99 percent of students in public schools were 
enrolled in a district that had a wellness policy in place. However, 
far fewer students were in a district that specifically required all 
five wellness policy elements: Nutrition education, school meals, 
physical activity, implementation and evaluation, and competitive 
foods.\1\
---------------------------------------------------------------------------

    \1\ http://www.bridgingthegapresearch.org/_asset/13s2jm/WP_2013_report.pdf.
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    HHFKA authorized the United States Department of Agriculture (USDA) 
Food and Nutrition Service (FNS) to consult with the Departments of 
Education (ED) and Health and Human Services (HHS), acting through the 
Centers for Disease Control and Prevention (CDC), to provide 
information and technical assistance to local educational agencies, 
school food authorities, and State educational agencies for use in 
establishing healthy school environments that are intended to promote 
student health and wellness. FNS worked with other Federal agencies and 
national partners to conduct several needs assessment activities with 
stakeholders and create a comprehensive school nutrition environment 
and wellness resources Web site available at http://healthymeals.nal.usda.gov/school-wellness-resources-2. FNS also 
developed a customizable model local school wellness policy template, 
published a resource featuring stories from schools that have put 
wellness policies into action, and issued a joint statement of 
collaboration with over two dozen national associations and 
organizations in support of local school wellness policies, and more. 
FNS will update existing technical assistance materials with the final 
regulatory changes and continue to work with partners to provide 
technical assistance that is consistent with the specific needs of 
local educational agencies.
    FNS issued a proposed rule (79 FR 10693) on February 26, 2014, 
seeking to amend the NSLP and SBP regulations to expand the wellness 
policy requirements consistent with amendments made to the NSLA by the 
HHFKA. The rule proposed specific content for the local school wellness 
policies. At a minimum, policies were required to include:
     Specific goals for nutrition promotion and education, 
physical activity, and other school-based activities that promote 
student wellness and rely on evidence-based strategies.
     Standards and nutrition guidelines for all foods and 
beverages available for sale on the school campus during the school day 
consistent with applicable Federal meal pattern and competitive food 
regulations.
     Standards for all other foods and beverages available on 
campus, but not sold, such as those provided at classroom parties and 
school celebrations and as rewards and incentives.
    The proposed rule also required LEAs to establish, at a minimum, 
wellness policy leadership of one or more LEA and/or school official(s) 
who have the authority and responsibility to ensure each school 
complies with the policy. It also proposed stakeholder participation in 
the development of such policies, periodic assessment of local school 
wellness policy compliance, and public updates on the progress toward 
achieving the goals of the local wellness policy.

II. Summary of Changes to Proposed Rule

    As discussed in more detail below, following publication of the 
proposed rule, FNS considered commenters' concerns and suggestions on 
the proposal. The following is a summary of the changes and 
clarifications being made in this final rule at 7 CFR part 210.

Administrative Reviews

    The final rule requires the State agency to ensure that the LEA 
complies with the local school wellness policy requirements. This 
provision was proposed at Sec.  210.18(h)(7), but will be codified at 
Sec.  210.18(h)(8).

Nutrition Guidelines for All Foods

    The final rule clarifies that, in addition to including nutrition 
guidelines for all foods offered to students for sale that are 
consistent with the meal pattern requirements and nutrition standards 
for competitive foods, the local school wellness policy also must 
include standards for other, non-sold foods and beverages made 
available on the school campus during the school day. See Sec.  
210.30(c)(2) and Sec.  210.30(c)(3).

Policies for Food and Beverage Marketing

    The final rule clarifies that in-school marketing of food and 
beverage items must meet competitive foods standards. See Sec.  
210.30(c)(3).
    Additionally, the final rule clarifies what is and is not subject 
to policies for food and beverage marketing in schools. See Sec.  
210.30(c)(3).

Implementation, Assessments and Updates

    The final rule requires each LEA to assess compliance with its 
local school wellness policy and make this

[[Page 50153]]

assessment available to the public at least once every three years, but 
removes the requirement for LEAs to annually report progress of local 
school wellness policies. See Sec.  210.30(e)(2).

Recordkeeping

    The final rule establishes that records retained by LEAs must 
include, at a minimum, the written local school wellness policy, 
documentation demonstrating compliance with community involvement 
requirements, documentation of the triennial assessment, and 
documentation to demonstrate compliance with the public notification 
requirements in Sec.  210.30(f).

Implementation Timeline

    The final rule requires LEAs to begin developing a revised local 
school wellness policy by August 29, 2016. LEAs must fully comply with 
the requirements of the final rule by June 30, 2017.

III. Public Comments

    The proposed rule was published in the Federal Register on February 
26, 2014 (79 FR 10693). The rule was posted for comment on 
www.regulations.gov, and the public had the opportunity to submit 
comments on the proposal during a 60-day comment period that ended on 
April 28, 2014.
    FNS appreciates the valuable comments provided by stakeholders and 
the public. FNS received 57,838 public comments that included 546 
distinct submissions, 57,285 form letters that were submitted through 
four large letter campaigns and four small letter campaigns, and 7 
duplicate submissions. Although not all commenters identified their 
group affiliation or commenter category, commenters included:
     School districts--7.
     Associations (national, State, local and others)--30.
     State and/or local agencies--11.
     Advocacy groups (national and State levels)--52.
     Non-profit organizations--36.
    Overall, approximately 57,420 comments voiced support for the 
proposal and 130 comments expressed opposition. The remaining 288 did 
not expressly state support or opposition. Supporters stated that local 
school wellness policies reinforce existing Federal regulations 
established to promote healthy eating in schools and help create 
learning environments free from unhealthy commercial influences. They 
affirmed that strengthening local school wellness policies improves 
accountability and public transparency with parents, students, and the 
community. Many organizations commended FNS for developing strong, 
comprehensive policies that will strengthen the existing regulation and 
lead to more effective leadership, implementation, and stakeholder 
involvement.
    Proponents noted that childhood obesity is an ongoing concern, and 
that most children fail to meet not only the Dietary Guidelines for 
Americans, but also recommendations for daily physical activity. As a 
result of the high childhood obesity rates, nearly all of the 
commenters supported local wellness policies that promote healthy 
eating and physical activity. Commenters also stated that strong, 
comprehensive school wellness policies are especially important to low-
income children who often have inadequate access to healthy food and 
physical activity and who rely heavily on their schools to fill these 
gaps. FNS agrees that schools play a powerful role in preparing 
students for a successful future, and believes that the guidance 
outlined in this final rule will further support efforts to create a 
school environment that teaches, supports and encourages students to 
develop lifelong healthy habits.
    Opponents generally expressed concern about the potential for 
misunderstanding of specific provisions. All comments were considered 
and, in cases of misunderstandings, clarifications are being made in 
this final rule. Many of the opponents expressed concern about Federal 
overreach and others indicated that the proposal could create 
operational and financial hardship for LEAs.
    Some commenters questioned FNS's legal and constitutional authority 
to regulate nutrition standards for all foods available in schools, and 
others suggested this requirement is an unfunded mandate. In response 
to these comments, FNS notes that the HHFKA amended the NSLA to require 
that local school wellness policies address nutrition guidelines for 
all foods available to children on the school campus during the school 
day. USDA provides cash and donated food assistance to States and 
schools participating in the NSLP and SBP to manage and operate school 
nutrition programs for children. In exchange, State agencies and 
participating LEAs agree to comply with the regulations set forth in 7 
CFR parts 210, 220, and 245.
    Other commenters were not clearly in favor of or opposed to the 
proposal but requested clarification on specific provisions.
    FNS considered all comments in the development of this final rule. 
FNS greatly appreciates the public comments submitted as they have been 
essential in developing a final rule that is expected to result in 
stronger local wellness policies and school environments that support 
student wellness and achievement. Given the volume and complexity of 
comments on the proposed rule, FNS developed a comprehensive comment 
summary and analysis which includes detailed information on the 
comments, including the source of the comments. The comprehensive 
comment summary and analysis is available at http://www.fns.usda.gov/school-meals/local-school-wellness-policy.
    This preamble focuses on general comment themes, most frequent 
comments, and those that influenced revisions to the proposed rule. The 
preamble also discusses modifications made to the proposed regulatory 
text, including paragraph numbering, in response to public input. To 
view all public comments received on the proposed rule, go to 
www.regulations.gov and search for public submissions under docket 
number FNS-2014-0010. Once the search results populate, click on the 
blue text titled, ``Open Docket Folder.''
    The following is a summary of the public comments on the key 
provisions.

Administrative Reviews

    Proposed Rule: The proposed rule at Sec.  210.18(h)(7) would 
require State agencies to ensure school food authorities (SFAs) comply 
with local school wellness policy requirements as part of the general 
areas of the administrative review. State agencies conduct 
administrative reviews of LEAs at least once every three years.
    Public Comments: Sixty commenters addressed the administrative 
review provision in the proposed rule. Fifty commenters supported the 
proposed requirement and stated that incorporating compliance with 
local school wellness policies into the administrative review will 
promote more effective implementation of the policies.
    Ten commenters expressed their opposition to the proposed 
monitoring and oversight requirements stating it will reduce the 
ability of staff to provide technical assistance to schools and places 
an undue burden on State nutrition program staff. A coalition of school 
districts and five individuals recommended placing the responsibility 
for compliance on the LEA, rather than the SFA, since the food service 
department does not have the authority

[[Page 50154]]

to control all elements of the wellness policies. Some commenters asked 
FNS to explain the enforcement strategy and the documents needed to 
show compliance with the requirements.
    FNS response: FNS recognizes that the first few years of 
implementation may be a period of transition as strengthening local 
school wellness policies may involve significant changes for some LEAs. 
During this transition period, State agencies are expected to focus on 
providing guidance and technical assistance to help LEAs move toward 
compliance. State agencies should work closely with LEAs experiencing 
challenges to help them resolve unique issues. In order to assist LEAs 
in implementing these requirements, FNS will continue to provide 
support to States. This will include identifying best practices and 
success stories and sharing other technical assistance materials that 
will assist LEAs in developing, updating, and assessing their policies.
    FNS also recognizes that local school wellness policy compliance 
must be the responsibility of the LEA, since the provisions of the 
NSLA, as amended by HHFKA, place responsibility for all other aspects 
of local school wellness policy implementation on the LEA. Accordingly, 
this final rule clarifies that the responsibility is at the LEA level 
rather than the SFA level and codifies the State agency's monitoring 
responsibilities in Sec.  210.18(h)(8).
    Pursuant to provisions of the NSLA amended by HHFKA, State agencies 
conduct administrative reviews at least once every three years. When 
program responsibilities fall to entities outside of school food 
service, the State agency must assess the compliance of the LEA's 
program responsibilities. FNS recognizes that LEAs will need time to 
fully develop their updated policies. During administrative reviews 
conducted in SY 2016-2017, State agencies should focus on providing 
technical assistance on the development and implementation of new local 
wellness policies. Full compliance will be expected by June 30, 2017, 
and therefore, will be assessed in administrative reviews conducted 
during SY 2017-2018. Information on the content of the review and 
methods States can use to assess compliance with local school wellness 
policies will be provided through an update to the Administrative 
Review Manual and related tools and forms for SY 2017-2018. As part of 
the general areas of review, the State agency is expected to examine 
records, including:
     A copy of the current Local School Wellness Policy;
     Documentation demonstrating the Local School Wellness 
Policy has been made available to the public;
     Documentation of efforts to review and update the Local 
School Wellness Policy, including an indication of who is involved in 
the update and methods the district uses to make stakeholders aware of 
their ability to participate;
     The most recent assessment on the implementation of the 
Local School Wellness Policy; and
     Documentation demonstrating the most recent assessment on 
the implementation of the Local School Wellness Policy has been made 
available to the public.

Definitions

    Proposed Rule: FNS proposed in Sec.  210.30(b) to use the 
definitions for the terms school campus and school day codified in the 
competitive foods regulations at Sec.  210.11(a) for the purpose of the 
local school wellness policies. School campus is defined as all areas 
of the property under the jurisdiction of the school that are 
accessible to students during the school day. School day is defined as 
the period from the midnight before to 30 minutes after the end of the 
official school day.
    Public Comments: The definitions in the proposed rule were 
addressed by 2,434 commenters, and some commenters provided suggested 
alternative model language. Most of these comments were submitted as 
part of several form letter campaigns. A State department of education 
commenter recommended the definitions for school campus and school day 
be included in the rule rather than cross-referencing Sec.  210.11(a). 
A health research and policy organization expressed support for the 
proposed definition of school campus while an individual commenter 
suggested the definition of school campus be limited to areas where 
breakfast and lunch are served.
    Several commenters were concerned with the proposed definitions. An 
individual commenter was concerned that the proposed definition of 
school day was too narrow and would force their school's weekend meal 
program to terminate because the meals do not meet competitive foods 
standards. Some commenters suggested the definition of school day be 
expanded to apply to extracurricular activities, to ensure that 
students are provided healthy options during after-school events 
including athletic events.
    Approximately 2,420 commenters stated that other terms should be 
defined in Sec.  210.30(b) of the final regulations and provided 
suggested model language to define those terms. Most of these comments 
were submitted as part of several form letter campaigns. Commenters 
encouraged FNS to include specific definitions of local school wellness 
policy, nutrition promotion and education, physical activity, physical 
education, and food and beverage marketing. Some commenters expressed 
concerns that the proposed rule failed to direct schools to include 
efforts to expand participation in the healthy school meals programs 
and suggested including definitions of ``student wellness'' and ``other 
school based activities to promote wellness.''
    Forty commenters, including advocacy groups, education 
associations, and individuals, recommended that additional terms be 
defined in the final rule and provided suggested model language to 
define those terms. The recommended terms include: Brand, copycat 
snacks, designated local education or school official(s), family 
engagement, commercial entity, student wellness, and healthy eating. 
Commenters also suggested defining all foods served at school during 
the day as competitive foods.
    FNS Response: After careful consideration, this final rule 
maintains the definitions of school campus and school day from Sec.  
210.11(a) and does not include additional definitions in Sec.  210.30. 
FNS acknowledges that additional definitions may increase consistency 
across LEAs and schools implementing the local school wellness 
policies. However, defining additional terms would add to existing 
requirements and limit decision-making at the local level. The ability 
of LEAs and schools to establish additional standards, including their 
own definitions or terms, that do not conflict with Federal 
requirements is consistent with the intent of the HHFKA and with the 
operation of the Federal school meal programs in general. That local 
discretion also provides an appropriate level of flexibility to LEAs 
and schools in crafting policies that reflect their particular 
circumstances.
    As noted above, a few commenters recommended changes to the current 
definitions of school campus and school day. As proposed, the school 
campus definition ensures that the local wellness policy addresses 
locations that are accessible to students. The timeframe for the school 
day definition starting the ``midnight before'' ensures that the local 
wellness policy would apply before school starts to ensure foods and 
beverages offered during a variety of before-school programs are also 
addressed. In addition, these terms were previously defined in the

[[Page 50155]]

competitive foods interim final rule at Sec.  210.11(a) and, if 
modified, would result in inconsistencies when operating the child 
nutrition programs. Accordingly, this final rule codifies the 
definitions for school campus and school day in Sec.  210.30(b), 
without change.

Establishing a Local School Wellness Policy

Local School Wellness Policy Leadership
    Proposed Rule: FNS proposed in Sec.  210.30(e)(1) that each LEA 
must designate one or more LEA or school official(s) to ensure each 
participating school complies with the local school wellness policy and 
proposed in Sec.  210.30(c)(3) that local wellness policies must 
identify the position of the LEA or school official(s) responsible for 
oversight of the local school wellness policy to ensure each school's 
compliance.
    Public Comments: The proposed requirements related to local school 
wellness policy leadership were addressed by approximately 54,800 
commenters; 54,790 of these commenters were supportive of the 
leadership requirement. The majority of these commenters submitted 
comments as part of several large form letter campaigns. Approximately 
60 commenters suggested requiring that LEAs publish the name, position 
title, and contact information for the designated official. A health 
advocacy organization recommended that the designated official's 
private contact information remain confidential. One association and 
two individuals opposed the proposed requirements stating that they 
would be unfunded and overly burdensome.
    Several commenters, including advocacy organizations and nutrition 
and education associations, addressed who should be designated 
responsible for overseeing the wellness policies. Many of these 
commenters stated that the designated official should be in a position 
of administrative leadership, preferably the superintendent or the 
principal. Others recommended that the designated official(s) should be 
a committee of officials, a district leader, or someone with authority 
to make decisions and recommendations. Many commenters suggested more 
than one person should be appointed to assist the designated official.
    FNS Response: The final rule requires LEAs to identify only the 
position title of the LEA or school official(s) responsible for 
oversight. FNS agrees that the community should be able to easily 
access the designated official(s) to provide suggestions and for 
accountability purposes, but that LEA's should not be required to 
publicize an individual's private contact information. However, we 
strongly encourage LEAs to provide a means of contacting the LEA or 
school official(s) responsible for oversight by designating an LEA or 
school-based phone number and/or email address for this purpose.
    In response to comments regarding who should be designated 
responsible for overseeing the wellness policies, this final rule 
allows LEA discretion. The LEA is most qualified to identify the best 
candidate for local school wellness policy leadership as size, 
resources, and needs vary greatly among LEAs and schools. Accordingly, 
this final rule codifies in Sec.  210.30(c)(4) the leadership 
requirements proposed in Sec.  210.30(e)(1) and Sec.  210.30(c)(3).
Public Involvement in Local School Wellness Policy Development
    Proposed Rule: FNS proposed in Sec.  210.30(d)(1) that each LEA 
must allow parents, students, representatives of the SFA, teachers of 
physical education, school health professionals, the school board, 
school administrators, and the general public to participate in the 
development, implementation, and periodic review and update of the 
local school wellness policy, and in Sec.  210.30(c)(4) that LEAs 
include in the written local school wellness policy a plan for 
involving those stakeholders.
    Public Comments: The public involvement provisions in Sec.  
210.30(d)(1) and Sec.  210.30(c)(4) of the proposed rule were addressed 
by approximately 54,900 commenters. The majority of these commenters 
submitted comments as part of several large form letter campaigns. 
Approximately 54,840 commenters stated support for the proposed rule's 
requirements related to community and public involvement in local 
school wellness policy development. Commenters provided the following 
reasons for supporting the public involvement requirements:
     Broad stakeholder involvement ensures coordination across 
the school environment and throughout the community.
     Transparency and inclusion are important aspects of the 
implementation process.
     No single department or group has all of the necessary 
information to develop comprehensive policies.
     Parents spend the most time with their children and best 
understand their children's food habits and choices.
    Nine commenters expressed their opposition to public involvement 
stating the requirements would be overly burdensome. Many of them 
recommended that FNS require, rather than encourage, LEAs to make 
wellness committee member's names, position titles, and relationship to 
the school available to the public, but not their contact information. 
Several commenters suggested that FNS require, rather than permit, 
involvement from specific categories of stakeholders on local school 
wellness policy committees. Most of those commenters also suggested 
that FNS require parent involvement on the committees. Several 
commenters expressed concern that the language of the proposed rule was 
too vague and could allow LEAs and schools to hand select participants 
or reduce parent participation. Ten commenters provided additional 
categories of stakeholders they wanted FNS to either specifically 
identify in the final rule or encourage LEAs and schools to consider, 
such as student representatives, paraprofessionals, and classroom 
teachers to name a few.
    FNS Response: In response to commenters' concerns about omitting 
important stakeholders, this final rule requires LEAs to allow parents, 
students, SFA representatives, teachers of physical education, school 
health professionals, the school board, school administrators, and 
members of the general public to participate in the development, 
implementation, and periodic review and update of the local school 
wellness policy. LEAs are also encouraged to include Supplemental 
Nutrition Assistance Program Education (SNAP-ED) coordinators or 
educators on the local school wellness policy committee, as 
appropriate.
    However, LEAs have discretion in exactly how they implement this 
requirement. While FNS expects LEAs to actively seek members for the 
local school wellness policy committee that represent the categories 
described in the statute, and to the extent practicable, allow them to 
participate, there are a variety of factors to consider when seeking 
the right combination of representatives. Each LEA is best suited to 
determine the distinctive needs of the community it serves. For 
example, school health professionals may include a health education 
teacher, school health services staff, or a social services staff. An 
example of the general public may include a local dietitian, business 
representative, health care professional or community or civil leader 
interested in children, nutrition, education, health, and physical 
activity.
    Once members of the local school wellness policy committee are 
identified, the LEA is encouraged to

[[Page 50156]]

make available to the public and school community, a list of names and 
position titles (or relationship to the school) of individuals who are 
a part of the wellness policy committee; as well as the name, position 
title, and school-based contact information of the lead individual(s) 
or coordinator(s) for the LEA, and for each school as applicable. 
Committee members can be identified on the LEA or school's Web site, in 
parent newsletters, or in other regular channels of communication that 
the LEA utilizes.
    Accordingly, this final rule codifies in Sec.  210.30(d)(1) the 
requirement that LEAs allow certain stakeholders to participate in the 
development, implementation, and periodic review and updating of the 
local school wellness policy. The rule also codifies in Sec.  
210.30(c)(5) the requirement proposed in Sec.  210.30(c)(3) that LEAs 
include in the written local school wellness policy a plan for 
involving the required stakeholders.

Content of the Local School Wellness Policy

Nutrition Promotion and Education, Physical Activity, and Other School-
Based Activities
    Proposed Rule: Under proposed Sec.  210.30(c)(1), local school 
wellness policies must include specific goals for nutrition promotion 
and education, physical activity, and other school-based activities 
that promote student wellness. In developing these goals, LEAs must 
review and consider evidence-based strategies and techniques.
    Public Comments: Approximately 54,700 commenters addressed the 
proposed content of the local school wellness policy. The majority of 
these commenters submitted comments as part of several large form 
letter campaigns. Only two commenters, including a coalition of school 
districts and an individual, generally opposed the proposal, while the 
majority of commenters stated support.
    Approximately 200 commenters stated specific support for the 
inclusion of nutrition promotion and education components in local 
school wellness policies. Most of these comments were submitted as part 
of two form letter campaigns. Commenters suggested that FNS include a 
recommended amount of nutrition education. An advocacy organization 
suggested 30-50 hours per year and an association suggested 50 hours 
per year. Commenters also suggested activities for nutrition education 
that were not included in the proposal, including cooking with 
children, social marketing for members of the school community, 
educating students about food systems, utilizing school gardens and 
farm-to-school programs as vehicles for nutrition education, and 
inviting parents to participate in physical activity opportunities and 
school meals.
    Approximately 2,700 commenters mentioned they were in favor of 
including a physical activity component in local school wellness 
policies. Most of these comments were submitted as part of two form 
letter campaigns. Approximately 80 commenters submitted other comments 
related to the inclusion of a physical activity component and many of 
these commenters stated that shared use of facilities is an important 
way to foster physical activity opportunities. Some commenters, 
including education associations, health associations and advocacy 
organizations, suggested that FNS require, rather than recommend, 60 
minutes of physical activity per day. Several commenters suggested 
requiring other minimum daily times for physical activity including 50 
minutes a day, at least 30 minutes a day, and at least 15 minutes for 
every 1.5 hours of classroom instruction. A health advocacy 
organization also recommended that FNS require moderate to vigorous 
physical activity during 50 percent or more of physical education class 
time. In addition to comments on physical activity, 20 commenters 
recommended including a physical education component as a required goal 
in local school wellness policies. Other comments addressed class 
frequency and size, teacher qualifications, teacher training, and 
benefits of physical education.
    Approximately 150 commenters stated support for including an 
educational component related to school-based activities other than 
nutrition education and promotion, and physical activity in local 
school wellness policies. Most of these comments were submitted as part 
of a form letter campaign. Two advocacy organizations and a local 
department of health suggested that FNS include in the final rule 
examples of other school-based activities and programs that promote a 
healthy school environment. These commenters also recommended specific 
examples including Smarter Lunchrooms, farm to school, recess before 
lunch, the HealthierUS School Challenge, and others. A commenter also 
recommended that FNS require goals ensuring students have adequate time 
to eat.
    Five commenters, including State departments of education and an 
advocacy organization, stated support for, and a State department of 
education expressed opposition to, the proposed requirement that LEAs 
consider evidence-based strategies and techniques in establishing goals 
for nutrition promotion and education, physical activity and other 
school-based activities that promote student wellness. The opponent 
raised concerns about LEAs having the resources or capacity to review 
evidence-based strategies in establishing goals. Two commenters, an 
advocacy organization and a department of health, encouraged FNS to 
require LEAs to review Smarter Lunchroom tools and strategies to 
incorporate some of the low- and no-cost strategies in the wellness 
policies.
    FNS Response: This final rule requires the local school wellness 
policy to include measurable goals for nutrition promotion and 
education, physical activity, and other school-based activities that 
promote student wellness. In developing these goals, LEAs must review 
and consider evidence-based strategies and techniques.
    Nutrition education teaches behavior-focused skills and may be 
offered as part of a comprehensive, standards-based program designed to 
provide students with the knowledge and skills necessary to safeguard 
their health and make positive choices regarding food and nutrition. A 
standards-based program is a system of instruction, assessment, 
grading, and reporting based on students demonstrating understanding of 
the knowledge and skills they are expected to learn. FNS does not 
recommend a specific number of hours for nutrition education, but 
instead that nutrition education is part of comprehensive health 
education curricula as well as integrated into other core subjects, 
such as math, science, language arts, and social sciences. FNS' Team 
Nutrition initiative has standards-based lesson plans and curricula for 
pre-kindergarten through Grade 8, available free of charge for schools 
that participate in Federal child nutrition programs (http://www.fns.usda.gov/tn/resource-library). The amount of time recommended 
for nutrition education is dependent on many factors including expected 
results, content of curriculum, and quality of instruction. Local 
school wellness policy goals related to nutrition education may include 
activities such as integrating nutrition education into other academic 
subjects, including nutrition education as part of health education 
classes and/or stand-alone courses for all grade-levels, and any other 
activities that are appropriate such as those suggested above by 
commenters.

[[Page 50157]]

    Although FNS sets the standards for the operation of school meal 
programs, FNS does not have the authority to require a minimum time for 
physical activity during the school day. The Richard B. Russell 
National School Lunch Act, section 12(c), 42 U.S.C. 1760(c), prohibits 
USDA from imposing any requirement in relation to curriculum and 
methods of instruction. This includes prohibiting USDA from imposing a 
specific instruction time requirement for the nutrition education 
component. USDA has long adhered to the position that the intent of the 
provision is to allow LEAs to retain the primary authority to manage 
their school day, but understands commenters' concerns related to 
physical activity and appreciates recommendations for a daily 
requirement.
    FNS agrees with commenters that 60 minutes of physical activity is 
important for students to achieve and maintain optimal health. The 
Centers for Disease Control and Prevention (CDC) recommends 60 minutes 
of physical activity each day for children and adolescents.\2\ While it 
may be difficult for schools to meet the recommended requirement due to 
other demands, FNS strongly encourages schools to offer time for 
students to meet the 60 minute goal since children spend many hours of 
their day at school. Some recommendations for fitting physical activity 
into the school day include outdoor and indoor recess, classroom-based 
physical activity breaks, and opportunities for physical activity 
before and after school to increase focus or teach academic content via 
physical movement.
---------------------------------------------------------------------------

    \2\ U.S. Department of Health and Human Services. 2008 Physical 
Activity Guidelines for Americans. Washington (DC): U.S. Department 
of Health and Human Services; 2008. ODPHP Publication No. U0036. 
Available at: http://www.health.gov/paguidelines.
---------------------------------------------------------------------------

    Physical education was not included as a required element of the 
local school wellness policy in the proposed rule. However, FNS agrees 
that physical education opportunities complement a healthy school 
environment by instilling an understanding of the short-term and long-
term benefits of a physically active and healthy lifestyle and FNS 
encourages LEAs and schools to offer physical education for every grade 
level.
    FNS appreciates comments and suggestions for other school-based 
activities supporting nutrition and health, and encourages LEAs to 
consider commenters' suggestions when developing or updating their 
local school wellness policies. Local school wellness policies could 
include the availability of safe facilities and equipment in sufficient 
quantities for all students to be active (including the frequency of 
inspections and replacements, as necessary); the community use of 
school grounds/facilities for physical activity outside of school 
hours; and strategies/events to promote safe, active routes to school 
(for example, ``walk to school day,'' crossing guards stationed around 
the school, and bicycle parking). Further examples of other school-
based activities that may be included into the local school wellness 
policy could include offering staff wellness activities and 
professional development opportunities related to health and nutrition, 
applying for or being awarded a Healthier US School Challenge, Smarter 
Lunchrooms recognition, sponsoring health fairs, offering a TV turnoff 
week, and promoting family wellness activities. Local school wellness 
policies also may include the development and/or promotion of farm to 
school activities, such as school gardens, nutrition, culinary, and 
agriculture education, and use of local foods in child nutrition 
programs (for more information, see www.fns.usda.gov/farmtoschool).
    While nutrition education and promotion and physical activity are 
critical components in providing a healthy school nutrition 
environment, other school activities supporting nutrition and health 
are equally important. Wellness policy activities can and should be 
integrated across the entire school setting rather than limited to the 
cafeteria, other food and beverage venues, and school physical activity 
facilities. An LEA can take a coordinated approach to developing and 
implementing a wellness policy by addressing nutrition and physical 
activity through health education, physical education, school nutrition 
services, the physical environment, such as school gardens, family 
engagement, community involvement, health services, and social 
services.\3\
---------------------------------------------------------------------------

    \3\ http://www.cdc.gov/healthyyouth/wscc/index.htm.
---------------------------------------------------------------------------

    Under the final rule at Sec.  210.30(c)(1), LEAs are also required 
to review and consider evidence-based strategies and techniques in 
establishing goals for nutrition promotion and education, physical 
activity, and other school based activities that promote student 
wellness. At a minimum, FNS expects LEAs to review ``Smarter 
Lunchroom'' tools and strategies, which are evidence-based, simple, 
low-cost or no-cost changes that are shown to improve student 
participation in the school meals program while encouraging consumption 
of more whole grains, fruits, vegetables, and legumes, and decreasing 
plate waste (for more information, see https://healthymeals.nal.usda.gov/healthierus-school-challenge-resources/smarter-lunchrooms). The following are examples of evidence-based 
strategies that have been shown to improve the likelihood that children 
will make the healthier choice: using creative names for fruits and 
vegetables and targeted entrees, training staff to prompt students to 
select fruits and vegetables, placing unflavored milk in front of other 
beverage choices, and bundling ``grab and go'' meals that include fruit 
and vegetable items.
    Accordingly, this final rule codifies Sec.  210.30(c)(1) to include 
goals for nutrition promotion and education, physical activity, and 
other school-based activities that promote student wellness. In 
developing these goals, LEAs must review and consider evidence-based 
strategies and techniques.
Nutrition Guidelines for All Foods
    Proposed Rule: The proposed rule would require in Sec.  
210.30(c)(2) that the local school wellness policy include nutrition 
guidelines for all foods and beverages available to students on each 
participating school campus under the LEA during the school day. This 
requirement, consistent with HHFKA, ensures that policies include 
guidance about foods and beverages available for sale that is 
consistent with the regulations governing school meals and competitive 
foods for sale in schools (Smart Snacks in Schools), and also 
encourages districts to establish standards for foods made available, 
but not sold, during the school day on school campuses.
    Public Comments: Approximately 55,000 commenters stated support for 
wellness policies including nutrition guidelines for all foods 
available in schools. The majority of these commenters submitted 
comments as part of several large form letter campaigns. Only four 
individuals generally opposed the proposed requirement. Other comments 
opposed application of the nutrition guidelines in certain specific 
settings or under specific circumstances. Approximately 20 commenters 
specifically opposed requiring that local school wellness policies 
containing nutrition guidelines for food sold during school fundraisers 
be consistent with the competitive food standards established in Sec.  
210.11. An additional 30 commenters opposed the requirement that food 
and beverages

[[Page 50158]]

served during classroom parties be consistent with competitive food 
standards.
    Approximately 60 commenters generally addressed the requirement 
that local wellness policies include nutrition guidelines for foods 
that are available but not sold on school campuses during the school 
day. Most of those commenters expressed general support and five 
commenters generally opposed the requirement. Others suggested that FNS 
encourage, but not require, that the wellness policies contain 
guidelines that are consistent with the competitive foods standards for 
foods available, but not sold on school campuses.
    A few commenters expressed support but many commenters opposed 
requiring foods served during classroom parties and school celebrations 
to be consistent with competitive food standards. Most commenters 
opposed to the requirement, stated that telling parents what they can 
and cannot bring to school for classroom parties is overreach by the 
Federal Government. Commenters also specifically addressed policies 
governing food-related rewards and incentives, and several commented 
that foods used as rewards and incentives should not have to meet 
competitive food standards.
    FNS Response: Section 9A(b)(2)(A) of the NSLA, 42 U.S.C. 
1758b(b)(2)(A) requires that each local school wellness policy must 
include nutrition guidelines for all foods and beverages available for 
sale on the school campus during the school day to ensure they are 
consistent with the statutory and regulatory provisions governing 
school meals (Sec. Sec.  220.8 and 220.10) and competitive foods (Sec.  
210.11) as applicable. HHFKA also requires that the policy address 
standards for foods and beverages available on the school campus during 
the school day that are not sold (for example, foods provided at 
classroom parties and school celebrations and food offered as rewards 
and incentives). Standards included in the local school wellness policy 
for sold and non-sold foods could include information on the types of 
foods and beverages available on the school campus during the school 
day, and as appropriate and applicable, the general or specific 
nutrient profile of those foods and beverages. FNS encourages LEAs to 
support lifelong healthy eating habits as well as consider the 
nutrition and energy needs of children when establishing standards for 
these foods and beverages.
    It is important to remember that the Federal competitive food 
standards are minimum standards. State agencies and LEAs have 
discretion to adopt more stringent standards for the types of food and 
beverages allowed to be sold and also may limit the frequency of 
fundraisers that may include foods that do not meet Federal competitive 
foods standards. A local school wellness policy can be an excellent 
tool for establishing LEA-specific standards and communicating them to 
students, parents, and other stakeholders. Further, local school 
wellness policies can serve as a vehicle to explain to the public and 
the school community the nutrition standards for school meals as well 
as other State or local policies related to school meals, other foods 
available in schools, and broader wellness policies.
    Neither the proposed rule nor this final rule would require schools 
to apply competitive food standards to foods and beverages that are 
simply available but not sold in school during the school day. Foods 
sold must meet competitive foods and meal pattern requirements, unless 
exempted under law or regulations, but foods available for classroom 
parties or provided as a reward to students are not required to meet 
those same standards. LEAs simply need to have a policy in place that 
addresses foods provided in school, but not made available for sale. 
Because local governments are in the best position to make individual 
food choices for their communities, FNS agrees that decisions about 
foods available in school during the school day should be made at the 
LEA or school level with community input. The proposed rule did not 
delineate the standards LEAs were required to use when developing 
policies for foods and beverages provided on campus, but not available 
for sale. Instead, FNS provided examples of policies that LEAs may want 
to address, including those related to classroom parties or school 
celebrations that involve food, food-related rewards or incentives, and 
other State or local policies or nutrition standards for foods and 
beverages available that promote student health and reduce childhood 
obesity. This rule does not require LEAs to address standards for food 
brought from home for individual consumption.
    To clarify the difference in requirements between all foods sold 
and all foods provided, but not sold, during the school day, FNS has 
separated these provisions in the final rule. The final rule requires 
that the local school wellness policy include standards and nutrition 
guidelines for all foods sold in schools and requires that those 
guidelines are consistent with the applicable Federal school meal 
requirements and competitive foods standards, as defined by statute and 
regulation. In addition, the final rule requires that local school 
wellness policies include standards for all foods provided, but not 
sold, in schools during the school day. However, the final rule does 
not require that local school wellness policy standards for foods 
provided in schools during the school day but not available for sale 
conform to the school meal requirements or the competitive foods 
standards. Again, it should be noted that with regard to foods 
provided, but not sold, in schools, local jurisdictions have the 
discretion to adopt standards that conform to Federal school meal and 
competitive food standards or to adopt more or less stringent 
standards.
    Accordingly, this final rule codifies in Sec.  210.30(c)(2) a 
provision requiring that local school wellness policies include a local 
jurisdictions' own standards for all foods and beverages provided, but 
not sold, during the school day on each participating school campus In 
addition, this final rule includes a new paragraph Sec.  210.30(c)(3) 
that incorporates the proposed provision requiring local school 
wellness policies to include nutrition guidelines for all foods sold 
under the jurisdiction of the local educational agency that are 
consistent with the applicable school meal requirements and competitive 
food standards.
Policies for Food and Beverage Marketing
    Proposed Rule: FNS proposed in Sec.  210.30(c)(2)(iii) that local 
school wellness policies permit marketing on the school campus during 
the school day of only those foods and beverages that meet the 
competitive foods requirements.
    Public Comments: The proposed requirement that local school 
wellness policies restrict food and beverage marketing in schools was 
addressed by approximately 57,300 commenters. Most of those comments 
were submitted as part of several large form letter campaigns. Most of 
the commenters expressed support for the proposed requirement, while 
only eight commenters generally opposed the requirement that local 
school wellness policies include a component restricting food and 
beverage marketing. A few commenters questioned USDA's authority to 
regulate food and beverage marketing in schools while one commenter 
stated the proposed limitations on marketing did not go far enough. A 
school district and an individual suggested the restriction would be a 
burden to schools.
    Eighty commenters who were generally supportive of the proposed

[[Page 50159]]

food and beverage marketing restrictions stated that the competitive 
food nutrition standards should be the minimum standard for food and 
beverage marketing policies. Most of these commenters further stated 
that LEAs should be assured that they are free to implement stronger 
standards for marketing, including extending the marketing standards 
beyond the school day, using local or State competitive food standards 
if those local or State standards go beyond the Federal competitive 
food standards, or restricting all marketing of food and beverages in 
schools. Seven commenters recommended that FNS should allow in-school 
marketing of food and beverage items that fit within the NSLP and SBP 
nutrition standards.
    Approximately 200 commenters stated that there should be a 
prohibition against brand marketing unless every food and beverage 
product manufactured, sold, or distributed under the brand name meets 
the competitive foods nutrition standards or the school's more 
stringent competitive food standards. Most of those comments were 
submitted as part of two form letter campaigns. Two advocacy 
organizations also addressed the issue of copycat products, where a 
company reformulates one product in a brand's otherwise unhealthy 
product portfolio to meet school nutrition standards. These commenters 
stated that the marketing of such products should be explicitly 
prohibited by local school wellness policies because they undermine 
school nutrition education efforts and overall healthy eating.
    Commenters provided examples of other types of food and beverage 
marketing that should be prohibited or otherwise restricted by the 
final rule including incentive programs and other corporate-sponsored 
programs; advertisements on school-owned, leased, operated, or used 
buildings, equipment, supplies, etc.; market research activities; free 
samples; and corporate-sponsored scholarships. Additionally, most of 
those commenters urged FNS to clarify that materials developed for 
academic settings such as curricula, textbooks, Web sites, and radio 
and television content sponsored by companies, should all be covered by 
the policy.
    Commenters also provided examples of other types of food and 
beverage marketing that should not be prohibited or otherwise 
restricted by the final rule. A large number of those commenters said 
that materials used for educational purposes, with incidental 
marketing, should not be prohibited.
    Several commenters suggested that corporate-sponsored activities 
where there is only an incidental or unintentional advertising impact 
should be exempt from the marketing restriction. A commenter asked FNS 
to clarify that the regulation is intended to address only 
communications intentionally directed to the school environment as 
opposed to communications that may incidentally reach the school 
environment. Another commenter sought clarification as to whether 
partnerships with community restaurants who sponsor fundraising nights 
where a portion of the restaurant's profits that night go to the school 
would be considered food and beverage marketing, and therefore 
prohibited by the rule.
    FNS Response: For purposes of this final rule, marketing is defined 
as advertising and other promotions in schools. Food marketing commonly 
includes oral, written, or graphic statements made for the purpose of 
promoting the sale of a food or beverage product made by the producer, 
manufacturer, seller, or any other entity with a commercial interest in 
the product.\4\ Food and beverage marketing are commonly present in 
areas of the school campus that are owned or leased by the school and 
used at any time for school-related activities such as the school 
building or on the school campus, including on the outside of the 
school building, areas adjacent to the school building, school buses or 
other vehicles used to transport students, athletic fields and stadiums 
(e.g., on scoreboards, coolers, cups, and water bottles), or parking 
lots.
---------------------------------------------------------------------------

    \4\ National Policy & Legal Analysis Network to Prevent 
Childhood Obesity. District Policy Restricting Food and Beverage 
Advertising on School Grounds. Available from: http://changelabsolutions.org/publications/district-policy-school-food-ads.
---------------------------------------------------------------------------

    FNS agrees with the majority of commenters who support permitting 
marketing on the school campus during the school day of only those 
foods and beverages that meet competitive foods standards. Food and 
beverage marketing is prevalent in schools, and the majority of foods 
and beverages marketed to children are low in nutritional value and 
high in fat and sodium.\5\ Many of the foods and beverages that are 
heavily marketed to children contribute to poor diet quality, high 
calorie intake, and excess weight gain.\6\ However, the majority of 
schools do not have policies restricting food and beverage marketing to 
children. Therefore, in this final rule, for those LEAs that choose to 
allow marketing of food and beverages to students, the LEAs are 
required to include in their local school wellness plans policies that 
allow the marketing of only those foods and beverages that may be sold 
on the school campus during the school day (i.e., that meet the 
competitive foods standards).
---------------------------------------------------------------------------

    \5\ Federal Trade Commission. A Review of Food Marketing to 
Children and Adolescents: Follow Up Report, 2012. https://www.ftc.gov/sites/default/files/documents/reports/review-food-marketing-children-and-adolescents-follow-report/121221foodmarketingreport.pdf.
    \6\ Cheyne A, Mejia P, Nixon L, Dorfman L. Food and Beverage 
Marketing to Youth. Current Obesity Reports. 2014. http://www.bmsg.org/sites/default/files/bmsg_food_and_bev_mktg_to_youth.pdf.
---------------------------------------------------------------------------

    The marketing of products on the exterior of vending machines, 
through posters, menu boards, coolers, trash cans, and other food 
service equipment, as well as cups used for beverage dispensing are all 
subject to local school wellness policy standards. Under these 
standards, the logos and products marketed in these areas and items are 
required to meet the competitive foods standards for foods sold in 
schools.
    Although the Federal Local Wellness policy standards for marketing 
do not apply to marketing that occurs at events outside of school hours 
such as after school sporting or any other events, including school 
fundraising events, LEAs have discretion to enact broader policies that 
address these situations.
    The rule does not require schools to immediately replace menu 
boards, coolers, tray liners, beverage cups, and other food service 
equipment with depictions of noncompliant products or logos to comply 
with new local school wellness policy standards. This final rule also 
is not intended to require that an LEA must remove or replace an 
existing scoreboard on a sports field or in a gymnasium in order to 
comply with this requirement. However, as the school nutrition services 
review/consider new contracts and as scoreboards or other such durable 
equipment are replaced or updated over time, replacement and purchasing 
decisions should reflect the applicable marketing guidelines 
established by the LEA in the wellness policy.
    This final rule does not require local school wellness policies to 
include standards that establish limits on personal expression, 
opinions, or products. For example, this regulation would not apply to 
clothing or personal items used by students or staff, or the packaging 
of products brought from home for personal consumption. In addition, 
the requirements of the final rule for local school wellness policies 
do not apply to materials used for

[[Page 50160]]

educational purposes in the classroom, such as teachers' use of soda 
advertisements as a media education tool; or when implementing a health 
or nutrition education curriculum. It is also not intended to imply 
that schools must allow food or beverage marketing on campus. This 
regulation requires local school wellness plans to establish only 
minimum standards for food and beverage marketing restrictions. State 
agencies and LEAs may choose to adopt more stringent policies for food 
and beverage marketing.
    FNS would like to respond to the recommendation that the final rule 
allow in-school marketing of foods and beverages that meet the NSLP and 
SBP meal pattern standards. School meals are considered a unit that is 
comprised of several food components. Alternatively, competitive foods 
standards look at the nutrition standards of an individual food item. 
Because school meal programs do not have standards for individual food 
items, it would be difficult, and even inconsistent, to allow marketing 
of foods and beverages that ``meet the school meal patterns.''
    Regarding brand marketing and copycat products, FNS understands 
commenters' concerns with companies advertising brands that market 
unhealthy foods in addition to healthy food products. The final rule 
provides discretion enabling LEAs to determine what is in the best 
interest of their respective school communities. LEAs may choose to 
include a more stringent marketing standard for brand marketing and 
copycat products in their local school wellness policy; they may simply 
eliminate advertising of all brands that market unhealthy foods; or 
they may allow both brand marketing and copycat products to be marketed 
in schools as long as food and beverages to be marketed in schools as 
long as they meet competitive foods standards.
    Accordingly, this final rule codifies proposed Sec.  
210.30(c)(3)(iii) and permits marketing on the school campus during the 
school day of only those foods and beverages that meet competitive 
foods standards in Sec.  210.11.
Public Notification
    Proposed Rule: The proposed rule would require in Sec.  
210.30(d)(2) that LEAs inform the public about the content of the local 
school wellness policy and make the local school wellness policy and 
any updates to the policy available to the public on an annual basis.
    Public Comments: General support for the proposed requirement was 
expressed by approximately 57,200 commenters. Most comments were 
submitted as parts of several large form letter campaigns. Only a local 
school nutrition association and a State department of education 
generally opposed the requirement, stating that it would be an 
administrative burden on school districts. Approximately 80 of the 
commenters, including numerous national associations and advocacy 
organizations, numerous individuals and an institutional investment 
center, who expressed general support for the proposed requirement that 
LEAs inform and update the wellness policy specifically expressed 
support for the proposed requirement that LEAs actively notify 
households regarding local school wellness policies.
    Nine commenters also provided suggestions as to how LEAs and 
schools can inform the public about the wellness policy and provide as 
much information as possible about the school nutrition environment. An 
advocacy organization recommended that FNS require local school 
wellness policies be posted at the school site, such as in the front 
office or main entrance. An education association suggested that LEAs 
be required to post local school wellness policies on the parent or 
family pages of the LEA or school Web site. Two advocacy organizations 
also suggested FNS require LEAs to ensure that the local wellness 
policy and any public announcement related to the policy, is available 
in the languages that represent the school community.
    FNS Response: This final rule retains the requirement in the 
proposed rule that LEAs or schools must notify households on an annual 
basis of the availability of the local school wellness policy 
information and provide information that would enable interested 
households to obtain additional details. FNS strongly encourages LEAs 
to provide as much information as possible to their communities about 
the school nutrition environment. While FNS agrees that sharing the 
local school wellness policy in many locations is useful in notifying 
families about the content and implementation of the policy, FNS 
recognizes that LEAs are best-suited to determine specific methods for 
publicizing the information, since LEAs communicate with households 
using various methods.
    This final rule, therefore, provides LEAs flexibility to determine 
the most effective method of providing this notification within their 
communities. For example, LEAs could post the local school wellness 
policy on the school or LEA's Web site and send a message to families 
notifying them of how they may obtain a copy or otherwise access the 
policy. In addition to the online posting option, a copy of the local 
school wellness policy could be posted at each physical school site, 
such as in the front office or main entrance. Furthermore, the LEA 
could present the information during a meeting with the Parent Teacher 
Association/Organization, school board, district superintendent, 
school/district health and wellness committee, or other interested 
groups or stakeholders. Other examples of methods for public 
information sharing with the larger community include notifications 
through local newspapers or the media that link to a Web page on the 
school or LEA's Web site. FNS strongly recommends LEAs make concerted 
efforts to ensure that the local school wellness policy and any public 
announcement related to the policy is available in the languages that 
represent the school community. LEAs are also required to make 
available to the public the results of the triennial assessment, and 
actively notify households of the availability of the assessment 
results.
    Accordingly, this final rule codifies in Sec.  210.30(d)(2), the 
proposed requirement that LEAs inform the public about the content of 
the local school wellness policy and make the local school wellness 
policy and any updates to the policy available to the public on an 
annual basis.
Implementation, Assessments and Updates
    Proposed Rule: Under proposed Sec.  210.30(e)(2) and (e)(3), LEAs 
must:
     Annually report on each of its schools' progress toward 
meeting the local school wellness policy goals over the previous school 
year;
     Assess compliance with local school wellness policies at 
least once every three years; and
     Make appropriate updates or modifications to the local 
school wellness policies based on the triennial assessments and annual 
reports.
Public Comments
    Approximately 54,700 commenters addressed the proposed requirements 
related to implementation, assessments, and updates and most of those 
commenters stated general support for the proposed requirements. Most 
of those commenters submitted comments as part of several large form 
letter campaigns. Twelve commenters, including State departments of 
education, a school district, and nutrition services departments, 
stated opposition due to concerns regarding administrative burden and 
redundancy.

[[Page 50161]]

    Specifically, commenters expressed concern about the monitoring and 
reporting burden the proposed rule would place on large school 
districts. Noting the administrative burden to districts of requiring 
each individual school to annually report on their wellness policies, 
an individual commenter recommended that all reporting should be done 
at the district level. To reduce the burden on LEAs, a State department 
of education recommended annually reporting progress for the LEA and a 
representative sample of schools under its jurisdiction. Commenters 
also suggested FNS provide additional information on how the annual 
progress report differs from the triennial assessment.
    FNS also received comments on the contents and format of annual 
reports as proposed in Sec.  210.30(e)(2). Commenters recommended 
including how implementation will be tracked and measured across all 
schools in each State, as well as how successful implementation will be 
defined. A local health department suggested collecting Body Mass Index 
(BMI) data of students to measure outcomes of local school wellness 
policies. A coalition of advocacy organizations suggested FNS identify 
specific data elements that should be included in these reports. 
Several commenters stated the school wellness report card format would 
be useful for the annual reports, and one commenter suggested FNS 
require in the final rule that LEAs create an annual school wellness 
report card and specify the contents of the report card. Another 
commenter recommended FNS allow districts to use existing data 
collection methods in order to reduce burden.
    In response to FNS' inquiry regarding annual reporting of progress 
on achieving goals, nine commenters said that the annual frequency of 
progress reporting would be overly burdensome. They specifically noted 
that monitoring, reporting, preparing, and publishing progress reports 
annually would be overly burdensome, especially in a large LEA, and 
would require significant resources. A commenter, while agreeing that 
the public should be informed, stated that annual reporting would 
increase staffing needs. In contrast, a commenter recommended the 
frequency of progress reports should be at least twice per school year 
as a means to hold schools accountable.
    Commenters also addressed the minimum content requirements of the 
triennial assessment. Three commenters expressed concern that requiring 
an LEA to assess each of its schools triennially will be overly 
burdensome. One State department of education suggested establishing a 
single standard State model local school wellness policy that all LEAs 
in the State measure against to ensure consistency in a State. One 
commenter also recommended FNS issue guidance that provides examples of 
acceptable model wellness policies.
    In response to FNS' inquiry as to whether the three-year frequency 
would keep the community informed without being overly burdensome to 
LEAs, a State department of education and a school district nutrition 
services department indicated it would be too burdensome for small 
districts, and another commenter agreed the frequency is appropriate. 
In contrast, one State department of education and one individual 
stated that three years is too long to wait for feedback and may not be 
sufficient to ensure schools are on target with their goals.
    FNS Response: The final rule eliminates the requirement for LEAs to 
annually report progress made toward meeting local school wellness 
policy goals, which was included in the proposed rule. However, this 
final rule retains the requirement in the proposed rule that each LEA 
assess, at least once every three years (triennially), compliance with 
the local wellness policy. LEAs are also required to annually notify 
the public about the content of the local school wellness policy and 
any updates to the policy.
    The intent of these public updates and policy assessment 
requirements is to promote public transparency and ensure families, 
including new school enrollees, have regular and easy access to 
information about the wellness environment of the school their child 
attends. In developing the final rule, FNS recognized it was important 
to balance the need to inform families and the community about the 
implementation of the local school wellness policy with the potential 
burden of assessing compliance, particularly for LEAs with a large 
number of schools. Therefore, this final rule requires, at Sec.  
210.30(d)(2), that LEAs inform families and the public each school year 
of basic information about the local school wellness policy including 
its content and implementation. LEAs may determine the optimal time for 
providing the information, although FNS recommends that the information 
be provided early in the school year.
    In the proposed rule, FNS specifically requested commenters' input 
regarding the frequency of both the annual reporting and assessments, 
in order to assess and limit the burden for LEAs. As noted above, 
commenters stated that the annual frequency of progress reporting in 
addition to triennial assessments would be overly burdensome. FNS 
agrees and has removed from the final rule the requirement for LEAs to 
annually report progress of local school wellness policy 
implementation. This final rule requires at Sec.  210.30(e)(2) an 
assessment of the local school wellness policy to be conducted, at a 
minimum, every three years. However, LEAs can choose to assess their 
policies more frequently to ensure goals and objectives are being met 
and to refine the policy as needed. The results of this assessment must 
be made available to the public to showcase the wellness efforts being 
made by the LEA with indications about how each school under the 
jurisdiction of the LEA is in compliance with the LEAs' wellness 
policy. While some commenters also suggested that the triennial 
assessments would be burdensome, FNS determined there would be less 
burden for LEAs and schools because the annual reporting requirements 
have been omitted from the final rule. Additionally, removing the 
annual reporting requirement eliminates the concern that there would be 
redundancy in conducting both an annual report and triennial 
assessment. For LEAs as a whole, eliminating the proposed annual 
reporting requirement removes an estimated 83,432 hours of burden 
associated with public disclosure of the proposed report.
    There are a variety of methods an LEA may employ to assess 
compliance by schools and determine progress toward benchmarks, 
objectives, and goals. Developing a wellness policy with measurable 
objectives, and realistic annual benchmarks will help when it is time 
to evaluate progress. Additionally, the local school wellness policy 
team and leadership can be assets in conducting periodic assessments. 
Various resources have already been identified or developed to support 
LEAs with the wellness policy process. These resources can be accessed 
at USDA's School Nutrition Environment and Wellness Resources Web site 
(http://healthymeals.nal.usda.gov/school-wellness-resources), including 
resources to support LEAs with assessing implementation of their local 
school wellness policy (http://healthymeals.nal.usda.gov/local-wellness-policy-resources/local-school-wellness-policy-process/assessment-monitoring-and) and model wellness policies (http://www.fns.usda.gov/school-meals/local-school-wellness-policy). States are 
welcome to develop their own models for LEAs within their

[[Page 50162]]

jurisdiction. FNS will continue to work with ED and HHS to identify and 
update resources and provide technical assistance in this area.
    While annual progress reporting has been removed from the final 
rule, it is important to note that under Sec.  210.30(d)(2), the annual 
public notification requirement is still in place. LEAs or schools must 
notify households of the availability of the local school wellness 
policy information, including the Web site address or other information 
that would enable interested households to obtain additional 
information. FNS strongly encourages LEAs to provide as much 
information as possible to their communities about the school nutrition 
environment. As discussed previously in this final rule, at a minimum 
LEAs must annually inform and update the public about the content and 
implementation of the local school wellness policy. LEAs must also 
provide the position title of the designated local agency official(s) 
or school official(s) leading/coordinating the school wellness policy 
committee. FNS encourages LEAs or schools to include a summary of each 
school's events or activities related to local school wellness policy 
implementation, the name and contact information of the designated 
local agency official(s) or school official(s) leading/coordinating the 
school wellness policy committee, and information on how the public can 
get involved with the school wellness policy committee.
    Accordingly, the final rule codifies the triennial assessment 
requirement in Sec.  210.30(e)(2) and removes the proposed requirements 
related to the annual progress reports, including provisions that would 
have required informing the public about progress toward meeting the 
goals of the local school wellness policy (proposed Sec.  
210.30(d)(3)), annual reporting (proposed Sec.  210.30(e)(2)), making 
updates or modifications based on annual progress reports (proposed 
Sec.  210.30(e)(4)), and retaining documentation of annual progress 
reports for recordkeeping (proposed Sec.  210.30(f)(4)).
Recordkeeping Requirement
    Proposed Rule: Under proposed Sec.  210.30(f), each LEA must 
maintain records to document compliance with local school wellness 
policy requirements. These records include but are not limited to:
     The written local school wellness policy;
     Documentation demonstrating compliance with community 
involvement requirements, including requirements to make the local 
school wellness policy, annual progress reports, and triennial 
assessments available to the public;
     Documentation of the triennial assessment of the local 
school wellness policy for each school under its jurisdiction; and
     Documentation of annual local school wellness policy 
progress reports for each school under its jurisdiction.
    Public Comments: Approximately 55 commenters addressed the proposed 
requirement, and of these, 50 commenters expressed support for the 
proposed recordkeeping requirements. These commenters included various 
stakeholders, including 28 participants in a form letter campaign. To 
avoid additional burden on schools, commenters recommended FNS clarify 
that the annual progress reports and the triennial assessments may be 
used to meet the recordkeeping requirement.
    Two individual commenters stated that the proposed recordkeeping 
requirements are unnecessary to ensure each LEA has an effective 
wellness policy. One commenter expressed concern that as a result of 
the administrative burden, some LEAs may withdraw from the school meal 
programs.
    FNS Response: This final rule establishes that each LEA must retain 
records to document compliance with the local school wellness policy 
requirements. FNS recognizes schools have many responsibilities and 
agrees with commenters that it is important to avoid additional burden 
on schools. However, it is important to remember that schools already 
maintain records for their existing local school wellness policies; 
these records are important for the administrative review of programs 
because they help document LEA activities regarding the local school 
wellness policy. Having recordkeeping documents already on file will 
satisfy administrative review requirements as well as allow the review 
process to go smoothly, which may ultimately reduce the burden schools 
face. Based on the number of supportive comments and the reduction in 
the administrative burden in this final rule due to the elimination of 
the annual reporting requirement, FNS disagrees that LEAs will withdraw 
from the school meal program due to the administrative burden 
associated with local wellness policies. Accordingly, this final rule 
retains the proposed recordkeeping provision, with the exception of 
documentation of annual progress reports; records retained by LEAs must 
include:
     The written local school wellness policy;
     Documentation demonstrating compliance with community 
involvement requirements;
     Documentation of the triennial assessment of the local 
school wellness policy; and
     Documentation to demonstrate compliance with the annual 
public notification requirements.
    Documentation demonstrating compliance with community involvement 
requirements may include, for example, a copy of the solicitation on 
the LEA/school Web site or school newsletter. Documentation to 
demonstrate compliance with the public notification requirements may 
include, for example, a copy of the LEA/school Web page where the local 
school wellness policy has been posted or a copy of the school 
newsletter or local newspaper. FNS will work with State agencies to 
prove technical assistance on documentation requirements and address 
questions that may arise during implementation. In addition, FNS will 
continue working with partners to clarify any implementation issues 
that may impact participation in the NSLP and SBP.
    Accordingly, the final rule codifies in Sec.  210.30(f), the 
proposed requirement that each local educational agency must retain 
records to document compliance with the requirements of this section.

Related Information

Timeline for Implementation
    Proposed Rule: The local school wellness policy proposed rule did 
not propose a date by which LEAs would need to comply with the proposed 
requirements.
    Public Comments: The timeline for implementing the requirements was 
addressed by approximately 55,000 commenters. The majority of those 
comments were submitted as part of several large form letter campaigns.
    In general, commenters expressed support for establishing a 
timeline for implementation and most of the comments urged FNS to 
finalize the rule quickly and to work with schools to ensure full 
implementation. Many commenters recommended that FNS require 
implementation between one and two years after the rule is finalized. A 
department of education explained that the one to two year requirement 
would provide LEAs with one year of planning time, which would be 
needed to develop the new infrastructure, and additional time for 
implementation.
    Several commenters, including two health associations and a 
coalition of school districts, recommended that FNS require 
implementation within one year

[[Page 50163]]

to provide schools adequate preparation time and also ensure that 
children benefit quickly. A health association suggested implementation 
during the 2015-16 school year because it would most effectively 
protect children's health and would provide FNS and schools sufficient 
time to prepare and implement the standards.
    A health advocacy organization suggested specifying the date FNS 
will release the model policies and best practices, and include a 
deadline for LEAs to publish their wellness policies. Three commenters 
recommended the timeline be flexible, allowing LEAs and schools 
sufficient time to adjust to required changes and to account for the 
variability in existing wellness policies.
    A school district suggested that school districts will need 
multiple years to develop and transition to the proposed assessment 
system, especially if no new funding is available. Six individual 
commenters suggested that FNS require LEAs to implement the policies 
within one to three years following the date the rule is finalized. Two 
school food service staff expressed concern over the amount of recent 
regulations and suggested an extended period for implementation. One of 
the school food service staff urged FNS to wait until schools have had 
sufficient time to implement competitive foods nutrition standards and 
suggested waiting two or more years prior to implementation.
    Three commenters addressed potential timelines for implementing the 
proposed marketing requirements. One of the commenters requested that 
FNS provide significant time, while another recommended FNS ensure the 
implementation timeline does not impact current contracts between LEAs 
and vendors. Another of the commenters suggested a three year timeline 
stating that it will be a challenge for schools to implement wellness 
policies concurrently with other requirements.
    FNS Response: In response to commenters' concerns, this final rule 
becomes effective on August 29, 2016. By that date, LEAs must begin 
developing a revised local school wellness policy. LEAs must fully 
comply with the requirements of the final rule by June 30, 2017. By SY 
2017-2018, LEAs must complete a triennial assessment.
    FNS acknowledges the first few years of implementation may be 
challenging as new groups work together to establish a healthy school 
nutrition environment. FNS also recognizes that LEAs need planning time 
to develop the infrastructure and ensure all parties are well informed 
and trained to meet the new requirements. State agencies and FNS will 
assist LEAs in the transition to these new requirements by the focusing 
on technical assistance during administrative reviews to facilitate 
implementation of the local school wellness policy requirements.
    It is important to understand that 99 percent of students in public 
schools are enrolled in districts that already have wellness policies 
in place. LEAs and schools have been implementing local school wellness 
policies since school year 2006, pursuant to Federal requirements. As 
discussed in the Regulatory Impact Analysis, most schools have local 
school wellness policies that meet at least some of the requirements 
under the Child Nutrition Act, and many have incorporated elements that 
were newly required under HHFKA. However, many LEAs will likely need to 
update their wellness policies to be in full compliance with this final 
rule. LEAs may begin or continue implementing these provisions prior to 
the effective date provided in this final rule. FNS currently has 
available more than 100 tools and resources on the School Nutrition 
Environment and Wellness Resources Web site, which LEAs and schools may 
consult for information and resources on implementing, enhancing, and 
maintaining local school wellness policies. In addition, FNS continues 
to regularly offer presentations and webinars to various audiences 
detailing the requirements of the local school wellness policy.
    Accordingly, this final rule is effective on August 29, 2016, as 
specified in the DATES section of this preamble.

IV. Implementation Resources

    Healthy eating, physical activity, and wellness among children and 
adolescents are the goals of several government agencies. In an effort 
to combine efforts and resources, FNS convened a workgroup including ED 
and HHS, acting through CDC, in April 2011. This workgroup conducted 
several needs assessment activities to help determine the training and 
technical assistance needs of LEAs in implementing the local school 
wellness policy requirements. Based on this assessment, the workgroup 
developed a five-year technical assistance plan. The workgroup has 
identified best practices and success stories for local school wellness 
policy implementation as well as other technical assistance resources 
that will support LEAs in developing, updating and assessing their 
policies.
    To assist with implementation of the local school wellness 
policies, FNS has established a Web site (http://www.fns.usda.gov/tn/local-school-wellness-policy) that provides information about the 
Federal requirements, local process, technical assistance, tools and 
resources, monitoring, and funding a local school wellness policy. 
Tools and resources available on this Web site include materials to 
design, implement, promote, disseminate, and evaluate local school 
wellness policies, as well as overcome barriers to adoption of local 
school wellness policies. Furthermore, FNS' Team Nutrition initiative 
has standards-based lessons plans and curricula for pre-kindergarten 
through Grade 8, classroom-based lesson plans, recipes, guidance to 
improve the quality of school meals, and other materials for nutrition 
education and promotion, including songs, games, posters, videos, 
event-planning booklet, wellness communication toolkit, school garden 
activities, and a graphics library. These resources and materials are 
available free of charge for schools that participate in Federal child 
nutrition programs (http://www.fns.usda.gov/tn/resource-library). These 
materials also are available to the general public for download at no 
cost.
    In addition, the ``School Nutrition Environment and Wellness 
Resources'' Web site, operated by USDA National Agricultural Library's 
Healthy Meals Resource System (Team Nutrition's training and technical 
assistance component), helps LEAs find the resources they need to meet 
the local school wellness policy requirements and recommendations to 
establish a healthier school nutrition environment (http://healthymeals.nal.usda.gov/school-wellness-resources). The ``School 
Nutrition Environment and Wellness Resources'' Web site has information 
and resources on:
     Local School Wellness Policy Process steps to put the 
policy into action;
     Required Wellness Policy Elements to meet the Federal 
requirements;
     Healthy School Nutrition Environment improvements related 
to food and physical activity;
     Samples, Stories, and Guidance ideas for schools including 
sample model wellness policies, and State school health policies and 
resources;
     Research Reports on school wellness; and
     Grants and funding opportunities related to child 
nutrition and physical activity.
    FNS and CDC have made available a collection of stories from a 
diverse group of schools that succeeded in improving students' 
nutritional and physical activity status through their

[[Page 50164]]

local school wellness policy. LEAs can read each story to gather 
implementation ideas on the steps and strategies other schools have 
used to implement wellness policies, including activities in key areas 
such as improving school meals and increasing physical activity levels 
among students. Best practice stories and strategies are available on 
the ``School Nutrition Environment and Wellness Resources'' Web site at 
http://healthymeals-u.nal.usda.gov/local-wellness-policy-resources/samples-stories-and-guidance/success-storiesbest-practices.
    LEAs can use the Model Local School Wellness Policy to help create 
their local school wellness policy and meet the minimum Federal 
requirements for local school wellness policy implementation. This 
model local school wellness policy template was developed by the 
Alliance for a Healthier Generation, has been thoroughly reviewed by 
the FNS, and is in compliance with the statutory requirements for local 
school wellness policies, as well as this final regulation. This model 
wellness policy will be revised by the Alliance for a Healthier 
Generation to be consistent with this final regulation and reviewed by 
FNS to confirm compliance. Once completed, it will be made available, 
along with other sample wellness policies, on the ``School Nutrition 
Environment and Wellness Resources'' Web site at http://healthymeals.nal.usda.gov/local-wellness-policy-resources/model-wellness-policies.
    FNS will continue to identify, develop, and post resources to the 
Team Nutrition and ``School Nutrition Environment and Wellness 
Resources'' Web sites including guidance materials, Frequently Asked 
Questions, sample and model local school wellness policies that will 
help LEAs assess the extent to which the local school wellness policy 
compares to model local school wellness policies, as required under the 
triennial assessment. In addition, best practices and other technical 
assistance will be provided by FNS as needed to develop, implement, 
assess, and report on local school wellness policies that promote 
healthy school nutrition environments.

Procedural Matters

Executive Order 12866 and Executive Order 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 designated a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, the 
rule has been reviewed by the Office of Management and Budget.

Regulatory Impact Analysis Summary

    As required for all rules that have been designated significant by 
the Office of Management and Budget, a Regulatory Impact Analysis (RIA) 
was developed for this proposal. A summary is presented below. The 
complete RIA is included in the docket for this rule at 
www.regulations.gov.

Need for Action

    The final rule updates the regulations governing the administration 
of USDA's Child Nutrition Programs in response to statutory changes 
made by The Healthy, Hunger-Free Kids Act of 2010.\7\ Section 204 of 
the Healthy, Hunger-Free Kids Act of 2010 added section 9A to the 
Richard B. Russell National School Lunch Act. This new section requires 
local educational agencies (LEAs) to establish local wellness policies 
and expands the scope of existing wellness policies; brings additional 
stakeholders into the development, implementation, and review of local 
school wellness policies; and requires public updates on the content 
and implementation of the wellness policies.
---------------------------------------------------------------------------

    \7\ Public Law 111-296.
---------------------------------------------------------------------------

Benefits

    The 2004 legislation placed the responsibility for developing a 
local school wellness policy at the local level, so the unique needs of 
each school under the jurisdiction of the LEA could be addressed. Each 
LEA was required to establish a local school wellness policy that set 
goals for nutrition education, physical activity, and other school-
based activities designed to promote student wellness, and to include 
nutrition guidelines for all foods available on the school campus 
during the school day. The legislation tasked the Secretary with 
developing regulations providing the framework and guidelines for LEA's 
local school wellness policies, including minimum goals, nutrition 
guidelines, and requirements.
    The final rule expands the scope of existing wellness policies, 
bringing additional stakeholders into the development, implementation, 
and review of local school wellness policies, and it also requires 
public updates on the content and implementation of the wellness 
policies. Specifically, it provides guidelines for local educational 
agencies and the Department regarding their roles in these policies, as 
required by the Healthy, Hunger-Free Kids Act of 2010.
    As documented in the Bridging the Gap study,\8\ there is 
substantial variability in local wellness policies, in the strength of 
those policies, and in policy enforcement, meaning that not all school 
children are benefitting from the policies in their schools.
---------------------------------------------------------------------------

    \8\ Chriqui JF, Resnick EA, Schneider L, Schermbeck R, Adcock T, 
Carrion V, Chaloupka FJ. School District Wellness Policies: 
Evaluating Progress and Potential for Improving Children's Health 
Five Years after the Federal Mandate. School Years 2006-07 through 
2010-11. Volume 3. Chicago, IL: Bridging the Gap Program, Health 
Policy Center, Institute for Health Research and Policy, University 
of Illinois at Chicago, 2013, www.bridgingthegapresearch.org. The 
Bridging the Gap study examined hard copies of written wellness 
policies from nationally representative samples of between 579 and 
679 public school districts for each school year from SY 2006-2007 
through SY2010-2011. Response rates in all years exceeded 90 
percent. See p. 45 of the Bridging the Gap study for additional 
methodological information.
---------------------------------------------------------------------------

    The final rule strengthens the requirements for the local wellness 
policies. Under the final rule, LEAs and schools are encouraged to 
identify specific, measurable objectives with attention to both long- 
and short-term goals. The wellness committee responsibilities have also 
been expanded to include oversight on policy implementation. LEAs must 
now designate at least one LEA official to be responsible for 
periodically determining the extent to which schools are in compliance 
with their wellness policies and the extent to which the policy 
compares with model policy.
    The final rule also includes a provision requiring that LEA local 
school wellness policies include standards that limit in-school 
marketing to only those foods and beverages that meet the standards in 
the Smart Snacks in Schools final rule. The new marketing requirement 
for local school wellness policies will mean that children are 
presented with images and signs that promote healthier foods and 
beverages and that the products that are marketed will match the snack 
foods and beverages that will be available in schools.
    Under the final rule, schools must also inform and update the 
public about

[[Page 50165]]

the content of their policies and the status of policy implementation. 
LEAs must also formally assess their policies to ensure that goals and 
objectives are being met. With greater transparency on the 
effectiveness of these policies, parents and other community 
stakeholders will be better informed and positioned to improve the 
school nutrition and wellness environment.
    As cited in Bridging the Gap, increasing numbers of peer-reviewed 
studies demonstrate the correlation between healthy nutrition and 
physical activity on the one hand and improved academic performance and 
improved classroom behavior on the other.\9\ A recent Institute of 
Medicine report found that ``increasing physical activity and physical 
fitness may improve academic performance and that time in the school 
day dedicated to recess, physical education class, and physical 
activity in the classroom may also facilitate academic performance. . . 
. Available evidence suggests that mathematics and reading are the 
academic topics that are most influenced by physical activity. These 
topics depend on efficient and effective executive function, which has 
been linked to physical activity and physical fitness.'' \10\ Similar 
correlations between better fitness and better academic performance 
have been found in Texas among students in grades 3-12, among 
Massachusetts middle school students, and among Illinois 3rd and 5th 
graders.\11\
---------------------------------------------------------------------------

    \9\ Chriqui et al., 2013, p. 4.
    \10\ Committee on Physical Activity and Physical Education in 
the School Environment, Food and Nutrition Board, Institute of 
Medicine, Educating the Student Body: Taking Physical Activity and 
Physical Education to School, edited by Kohl and Cook HD 
(Washington, DC: National Academies Press, 2013), available online 
at http://www.ncbi.nlm.nih.gov/books/NBK201501/.
    \11\ Troust, SG, Active Living Research, ``Active education: 
physical education, physical activity, and academic performance.'' 
Available online at http://activelivingresearch.org/files/ALR_Brief_ActiveEducation_Summer2009.pdf.
---------------------------------------------------------------------------

    A literature review of 33 peer-reviewed papers (including six 
studies using large, nationally representative studies) finds 
increasing evidence supporting the idea that schools' policies on 
foods, beverages, and physical activity are correlated with calories 
consumed and expended by school age children, and even to children's 
body mass indexes.\12\ Consequently, we believe that strengthening 
local wellness policies will have real positive effects on the health 
outcomes for students, though these benefits cannot be quantified 
nationally with precision using existing data given the lack of 
baseline or ongoing data about student health status.
---------------------------------------------------------------------------

    \12\ Chriqui et al., 2013, p. 4. Chriqui FJ, Healthy Eating 
Research, Bridging the Gap, ``Influence of competitive food and 
beverage policies on children's diets and childhood obesity,'' p. 6. 
Available online at http://healthyeatingresearch.org/wp-content/uploads/2013/12/Competitive_Foods_Research_Review_HER_BTG_7-2012.pdf.
---------------------------------------------------------------------------

    Finally, the rule requires LEAs to give increased attention to 
their implementation of the new school meal pattern requirements and 
the Smart Snacks in Schools requirements. As described in the 
regulatory impact analysis published with the school meals rule,\13\ 
the benefits of the new school meal pattern requirements include 
improved nutrition and diets to students and likely improved health 
outcomes. Furthermore, as described in the regulatory impact analysis 
published with the Smart Snacks in Schools rule, the benefits of the 
Smart Snacks in Schools rule likely include decreased consumption of 
solid fats and added sugars and decreased obesity rates.
---------------------------------------------------------------------------

    \13\ Federal Register, Vol. 77, No. 17, pp. 4088-4167.
---------------------------------------------------------------------------

Costs/Administrative Impact

    There are no transfers as a result of this rule, and we estimate 
that there is no quantifiable economic impact beyond the new 
administrative, recordkeeping, and reporting requirements for LEAs 
established as a result of this rule. LEAs will face increased 
administrative, recordkeeping, and reporting burdens in order to 
conduct triennial assessments of wellness policies and policy 
implementation and retain documentation of these assessments. We 
estimate these costs to be approximately $4 million per year across the 
entire United States and note that they are attributable to statutory 
requirements, rather than discretionary regulatory requirements. A 
summary table of the estimated costs of the final rule is provided 
below.

                                        Record and Reporting Requirement Costs for Local School Wellness Policies
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Fiscal year (millions)
              Administrative burden on LEAs              -----------------------------------------------------------------------------------------------
                                                               2016            2017            2018            2019            2020            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Additional Reporting Burden on LEAs
--------------------------------------------------------------------------------------------------------------------------------------------------------
LEA must establish and/or update local wellness policies            $2.6            $2.6            $2.7            $2.8            $2.9           $13.6
 for all schools participating in NSLP..................
LEA must inform the public annually about the content                0.5             0.5             0.5             0.6             0.6             2.7
 and implementation of the local school wellness policy
 and any updates........................................
LEA must conduct triennial assessments of schools'                   0.9             0.9             0.9             0.9             1.0             4.5
 compliance with the local school wellness policy and
 inform public about progress...........................
                                                         -----------------------------------------------------------------------------------------------
    Total Estimated Reporting Burden....................             3.9             4.0             4.2             4.3             4.4            20.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Additional Recordkeeping Burden on LEAs
--------------------------------------------------------------------------------------------------------------------------------------------------------
SFA/LEA must retain records to document compliance with              0.1             0.1             0.1             0.1             0.1             0.7
 the local school wellness policy requirements..........
                                                         -----------------------------------------------------------------------------------------------

[[Page 50166]]

 
    Total Additional Administrative Burden on LEAs......             4.1             4.2             4.3             4.4             4.6            21.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The BLS, FY2014 employer cost for State and local government public administration employee wage rate is used in this estimate and inflated on a
  fiscal year basis by State and Local Price Index used in PB2016.

Regulatory Flexibility Act Summary

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612). It has 
been certified that this rule will have a significant impact on a 
substantial number of small entities. A summary is presented below. The 
complete RFA is included in the docket for this rule at 
www.regulations.gov.
    The requirements established by this final rule will apply to LEAs 
which meet the definitions of ``small governmental jurisdiction'' and 
``small entity'' in the Regulatory Flexibility Act. The regulatory 
flexibility analysis considers the impact of the final rule on small 
businesses. The final rule has the potential to affect approximately 
20,000 local educational agencies and some 105,000 schools operating in 
the U.S. We estimate that the administrative cost for schools will be 
on average about $41 per school per year. The marketing limitations in 
the final rule could affect vending machine operators and marketing 
companies as they change existing marketing to meet the requirements. 
Because of the changes in products available in schools due to the 
Smart Snacks in Schools interim rule, we believe that much of that 
change will already have occurred, but there may still be some labor 
costs associated with changing the marketing campaigns. It is expected 
that marketing in schools will not decrease; it will be updated to 
promote healthier foods and beverages.

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 2016 inflation; GDP deflator source: Table 
1.1.9 at http://www.bea.gov/iTable) 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.
    A school district and six individuals submitted comments asserting 
that the proposed rule represents an unfunded mandate. One individual 
commenter noted that this additional duty should not be placed on child 
nutrition directors without additional funding. The school district 
stated that FNS is estimating implementation costs to be quite low so 
that the Unfunded Mandates Reform Act does not apply. The other 
individual commenters made general statements that this rule results in 
an unfunded mandate.
    The provisions in this regulation are statutory requirements, not 
discretionary. Furthermore, FNCS has provided flexibilities for LEAs. 
For example, the rule allows the LEA to choose the appropriate LEA or 
school official responsible for oversight of the local wellness policy. 
Schools were previously required to have local wellness policies in 
place, the effort required to update local wellness policies to bring 
them into compliance with the requirements of this rule is estimated to 
be less than $5 million dollars per year. This is well below the $146 
million threshold that triggers the cost benefit analysis required for 
unfunded mandates. The cost estimates for this rule are discussed in 
more detail above and in the complete Regulatory Impact Analysis 
included in the docket for this rule at www.regulations.gov.
    Based on these cost estimates, FNS has determined that 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 National School Lunch Program (NSLP), School Breakfast Program 
(SBP), State Administrative Expenses (SAE), Special Milk Program (SMP), 
Child and Adult Care Food Program (CACFP), and Summer Food Service 
Program (SFSP) are listed in the Catalog of Federal Domestic Assistance 
Programs under NSLP No. 10.555, SBP No. 10.553, SAE No. 10.560, SMP No. 
10.556, CACFP No. 10.558, and SFSP No. 10.559, respectively and are 
subject to Executive Order 12372 which requires intergovernmental 
consultation with State and local officials (See 2 CFR chapter IV). The 
Child Nutrition Programs are federally funded programs administered at 
the State level. The Department headquarters and regional office staff 
engage in ongoing formal and informal discussions with State and local 
officials regarding program operational issues. This structure of the 
Child Nutrition Programs allows State and local agencies to provide 
feedback that forms the basis for any discretionary decisions made in 
this and other rules.

Executive Order 13132

    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. USDA 
has considered the impact of this rule on State and local governments 
and has determined that this rule does not have federalism 
implications. This rule does not impose substantial or direct 
compliance costs on State and local governments. Therefore, under 
Section 6(b) of the Executive Order, a federalism summary impact 
statement is not required.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is intended to have

[[Page 50167]]

preemptive effect with respect to any State or local laws, regulations 
or policies which conflict with its provisions or which would otherwise 
impede its full implementation, however, FNS is not aware of any 
specific situations in which this would occur. This rule is not 
intended to have retroactive effect unless specified in the DATES 
section of the final rule. Prior to any judicial challenge to the 
provisions of this rule or the application of its provisions all 
applicable administrative procedures in Sec.  210.18(q) or Sec.  
235.11(f) must be exhausted.

Civil Rights Impact Analysis

    FNS has reviewed this rule in accordance with Departmental 
Regulations 4300-4, ``Civil Rights Impact Analysis,'' and 1512-1, 
``Regulatory Decision Making Requirements.'' After a careful review of 
the rule's intent and provisions, FNS has determined that this rule is 
not intended to limit or reduce in any way the ability of protected 
classes of individuals to receive benefits on the basis of their race, 
color, national origin, sex, age or disability nor is it intended to 
have a differential impact on minority owned or operated business 
establishments and woman-owned or operated business establishments that 
participate in the Child Nutrition Programs.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
part 1320) requires that the Office of Management and Budget (OMB) 
approve all collections of information by a Federal agency from the 
public 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. This rule contains information collection 
requirements subject to approval by OMB.
    A 60-day notice was embedded into the proposed rule, ``7 CFR parts 
210 and 220 Local School Wellness Policy Implementation Under the 
Healthy, Hunger-Free Kids Act of 2010,'' published in the Federal 
Register at 79 FR 10693 on February 26, 2014, which provided the public 
an opportunity to submit comments on the information collection burden 
resulting from this rule.
    One commenter stated that this rule adds significant paperwork to 
already overworked Food Service Directors nationwide, specifically 
noting that the current three-year review cycle takes a month for 
preparation. The majority of the estimated burden for this final rule 
is in establishing local school wellness polices as required by the 
HHFKA. This is a one-time occurrence, but comprises an estimated 99,110 
hours (63 percent) of the total estimated 156,923 hours. It is likely 
that the majority of LEAS have already established these policies; 
however, the burden needs to be accounted for in this final rule. Once 
every three years, a triennial assessment is required by the HHFKA and 
accounts for an estimated 33,035 hours annually (21 percent). Annually, 
the HHFKA required that LEAs inform the public and make any updates 
available to the public and this accounts 12.6 percent of the total 
burden. Retaining records accounts for an estimated 3 percent of the 
total burden. The burden associated with the Administrative Review, 
occurring every three years, is not part of this final rule.
    Another commenter suggested that the workload burden at the LEA 
level would be greater than USDA's anticipated burden for larger 
districts. Based on comments received, FNS has removed from the final 
rule the proposed 210.30(e)(2) which would have required annual 
reporting of each school's progress in meeting policy goals. 
Eliminating the proposed annual reporting requirement caused a 
significant reduction of 83,432 responses and 83,432 burden hours for 
public disclosure of the proposed report. The final rule clarifies that 
only LEAs are required to establish local school wellness policies, not 
each individual school which decreased the number of responses by 
83,432; however, the estimated hours per response were increased 
accordingly to respond to comments regarding burden hours to ensure no 
decrease in the burden hours for this provision.
    In response to these comments, the changes between the proposed 
burden and the burden for the final rule resulted in an overall 
decrease of 63,565 hours for public disclosure and a decrease of 21,117 
hours for recordkeeping.
    This is a new collection. The provisions in this final rule create 
new burden which will be merged into a currently approved information 
collection titled ``National School Lunch Program'' (NSLP), OMB Number 
0584-0006, which expires on April 30, 2016.
    In accordance with the Paperwork Reduction Act of 1995, the 
information collection requirements associated with this final rule, 
which were filed under 0584-0592, have been submitted for approval to 
OMB. When OMB notifies FNS of its decision, FNS will publish a notice 
in the Federal Register of the action.
    FNS is requesting an estimated 151,967 hours for LEAs to publicly 
disclose local school wellness policies and their triennial assessment 
results. FNS is requesting an estimated 4,956 hours for recordkeeping 
requirements for LEAs. The following table reflects estimated burden 
associated with the new information collection requirements:

              Estimated Annual Burden for 0584-0592, Local Wellness Policy Implementation Under the Healthy, Hunger--Free Kids Act of 2010
                                                                [7 CFR Parts 210 and 220]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Estimated                                       Estimated       Estimated
              Affected public                      7 CFR reference           number of     Frequency of    Total annual      hours per    annual  burden
                                                                            respondents      response        responses       response          hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Reporting
--------------------------------------------------------------------------------------------------------------------------------------------------------
Each LEA must update local wellness         210.30(a), 210.30(c)(5).....          19,822               1          19,822               5          99,110
 policies for all participating schools.
LEAs must inform the public annually about  210.30(d)(2), 220.7.........          19,822               1          19,822               1          19,822
 the local wellness policy and make any
 updates available to the public.

[[Page 50168]]

 
LEAs are required to conduct triennial      210.30(d)(3), (e)(2), (e)(3)           6,607               1           6,607               5          33,035
 assessments and make assessment results
 and any updates available to public.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Total Estimated Reporting Burden......  ............................          19,822          2.3333          46,251          3.2857         151,967
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Recordkeeping
--------------------------------------------------------------------------------------------------------------------------------------------------------
LEAs must retain records to document        210.15(b)(9), 210.30(f).....          19,822               1          19,822            0.25         4,955.5
 compliance with local school wellness
 policy requirements.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Total Estimated Recordkeeping Burden..  ............................          19,822               1          19,822            0.25         4,955.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Total of Reporting and Recordkeeping
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting.................................  ............................          19,822          2.3333          46,251          3.2857         151,967
Recordkeeping.............................  ............................          19,822               1          19,822            0.25         4,955.5
                                                                         -------------------------------------------------------------------------------
    Total.................................  ............................          19,822          3.3333          66,073           2.375         156,923
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
 
------------------------------------------------------------------------
                   SUMMARY OF BURDEN (OMB #0584-0592)
------------------------------------------------------------------------
TOTAL NO. RESPONDENTS...................................          19,822
AVERAGE NO. RESPONSES PER RESPONDENT....................          3.3333
TOTAL ANNUAL RESPONSES..................................          19,822
AVERAGE HOURS PER RESPONSE..............................           2.375
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    TOTAL NEW BURDEN REQUESTED WITH NEW RULE............        *156,923
------------------------------------------------------------------------
* Upon approval by OMB these 156,923 hours will be merged with OMB #0584-
  0006.

E-Government Act Compliance

    The Food and Nutrition Service 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. 
This rule promotes use of Internet for posting policy content and 
making implementation and updates transparent to public.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This rule has been reviewed in accordance with the requirements of 
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, and other policy 
statements or actions that have substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.
    The Food and Nutrition Service has assessed the impact of this rule 
on Indian tribes and determined that this rule does not, to our 
knowledge, have tribal implications that require tribal consultation 
under Executive Order 13175. If a Tribe requests consultation, the Food 
and Nutrition Service will work with the USDA Office of Tribal 
Relations to ensure meaningful consultation is provided where changes, 
additions, and modifications identified herein are not expressly 
mandated by Congress.

List of Subjects

7 CFR Part 210

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

7 CFR Part 220

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

    Accordingly, for the reasons set forth in the preamble, 7 CFR parts 
210 and 220 are amended as follows:

PART 210--NATIONAL SCHOOL LUNCH ACT

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

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


0
2. In Sec.  210.12, revise the section heading and add paragraph (e) to 
read as follows:


Sec.  210.12  Student, parent, and community involvement.

* * * * *
    (e) Local school wellness policies. Local educational agencies must 
comply with the provisions of Sec.  210.30(d) regarding student, 
parent, and community involvement in the development, implementation, 
and

[[Page 50169]]

periodic review and update of the local school wellness policy.

0
3. In Sec.  210.15, add paragraph (b)(9) to read as follows:


Sec.  210.15  Reporting and recordkeeping.

* * * * *
    (b) * * *
    (9) Records to document compliance with the local school wellness 
policy requirements as set forth in Sec.  210.30(f).

0
4. In Sec.  210.18, add paragraph (h)(8) to read as follows:


Sec.  210.18  Administrative reviews.

* * * * *
    (h) * * *
    (8) Local school wellness. The State agency must ensure the local 
educational agency complies with the local school wellness requirements 
set forth in Sec.  210.30.
* * * * *


Sec.  210.30, 210.31, and 210.32   [Redesignated as Sec. Sec.  210.31, 
210.32, and 210.33]

0
5. Redesignate Sec. Sec.  210.30, 210.31, and 210.32 as Sec. Sec.  
210.31, 210.32, and 210.33 respectively.

0
6. Add a new Sec.  210.30 to read as follows:


Sec.  210.30  Local school wellness policy.

    (a) General. Each local educational agency must establish a local 
school wellness policy for all schools participating in the National 
School Lunch Program and/or School Breakfast Program under the 
jurisdiction of the local educational agency. The local school wellness 
policy is a written plan that includes methods to promote student 
wellness, prevent and reduce childhood obesity, and provide assurance 
that school meals and other food and beverages sold and otherwise made 
available on the school campus during the school day are consistent 
with applicable minimum Federal standards.
    (b) Definitions. For the purposes of this section:
    (1) School campus means the term as defined in Sec.  210.11(a)(4).
    (2) School day means the term as defined in Sec.  210.11(a)(5).
    (c) Content of the plan. At a minimum, local school wellness 
policies must contain:
    (1) Specific goals for nutrition promotion and education, physical 
activity, and other school-based activities that promote student 
wellness. In developing these goals, local educational agencies must 
review and consider evidence-based strategies and techniques;
    (2) Standards for all foods and beverages provided, but not sold, 
to students during the school day on each participating school campus 
under the jurisdiction of the local educational agency;
    (3) Standards and nutrition guidelines for all foods and beverages 
sold to students during the school day on each participating school 
campus under the jurisdiction of the local educational agency that;
    (i) Are consistent with applicable requirements set forth under 
Sec. Sec.  210.10 and 220.8 of this chapter;
    (ii) Are consistent with the nutrition standards set forth under 
Sec.  210.11;
    (iii) Permit marketing on the school campus during the school day 
of only those foods and beverages that meet the nutrition standards 
under Sec.  210.11; and
    (iv) Promote student health and reduce childhood obesity.
    (4) Identification of the position of the LEA or school official(s) 
or school official(s) responsible for the implementation and oversight 
of the local school wellness policy to ensure each school's compliance 
with the policy;
    (5) A description of the manner in which parents, students, 
representatives of the school food authority, teachers of physical 
education, school health professionals, the school board, school 
administrators, and the general public are provided an opportunity to 
participate in the development, implementation, and periodic review and 
update of the local school wellness policy; and
    (6) A description of the plan for measuring the implementation of 
the local school wellness policy, and for reporting local school 
wellness policy content and implementation issues to the public, as 
required in paragraphs (d) and (e) of this section.
    (d) Public involvement and public notification. Each local 
educational agency must:
    (1) Permit parents, students, representatives of the school food 
authority, teachers of physical education, school health professionals, 
the school board, school administrators, and the general public to 
participate in the development, implementation, and periodic review and 
update of the local school wellness policy;
    (2) Inform the public about the content and implementation of the 
local school wellness policy, and make the policy and any updates to 
the policy available to the public on an annual basis;
    (3) Inform the public about progress toward meeting the goals of 
the local school wellness policy and compliance with the local school 
wellness policy by making the triennial assessment, as required in 
paragraph (e)(2) of this section, available to the public in an 
accessible and easily understood manner.
    (e) Implementation assessments and updates. Each local educational 
agency must:
    (1) Designate one or more local educational agency officials or 
school officials to ensure that each participating school complies with 
the local school wellness policy;
    (2) At least once every three years, assess schools' compliance 
with the local school wellness policy, and make assessment results 
available to the public. The assessment must measure the implementation 
of the local school wellness policy, and include:
    (i) The extent to which schools under the jurisdiction of the local 
educational agency are in compliance with the local school wellness 
policy;
    (ii) The extent to which the local educational agency's local 
school wellness policy compares to model local school wellness 
policies; and
    (iii) A description of the progress made in attaining the goals of 
the local school wellness policy.
    (3) Make appropriate updates or modifications to the local school 
wellness policy, based on the triennial assessment.
    (f) Recordkeeping requirement. Each local educational agency must 
retain records to document compliance with the requirements of this 
section. These records include but are not limited to:
    (1) The written local school wellness policy;
    (2) Documentation demonstrating compliance with community 
involvement requirements, including requirements to make the local 
school wellness policy and triennial assessments available to the 
public as required in paragraph (e) of this section; and
    (3) Documentation of the triennial assessment of the local school 
wellness policy for each school under its jurisdiction.

PART 220--SCHOOL BREAKFAST PROGRAM

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

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


0
8. In Sec.  220.7, add paragraph (h) to read as follows:


Sec.  220.7  Requirements for participation.

* * * * *
    (h) Local educational agencies must comply with the provisions of 
Sec.  210.30 of this chapter regarding the

[[Page 50170]]

development, implementation, periodic review and update, and public 
notification of the local school wellness policy.

    Dated: June 21, 2016.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2016-17230 Filed 7-28-16; 8:45 am]
 BILLING CODE 3410-30-P