Restoration of Milk, Whole Grains, and Sodium Flexibilities, 75241-75261 [2020-25761]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 85, Number 228 (Wednesday, November 25, 2020)]
[Proposed Rules]
[Pages 75241-75261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25761]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85, No. 228 / Wednesday, November 25, 2020 / 
Proposed Rules

[[Page 75241]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, and 226

[FNS-2020-0038]
RIN 0584-AE81


Restoration of Milk, Whole Grains, and Sodium Flexibilities

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

ACTION: Proposed rule.

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SUMMARY: This rulemaking proposes to codify three menu planning 
flexibilities established by the interim final rule titled, Child 
Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium 
Requirements published November 30, 2017, and made permanent with some 
modifications by a final rule of the same title published December 12, 
2018, hereafter referred to as the 2018 Final Rule. An April 2020 court 
decision vacated and remanded the 2018 Final Rule. In response to the 
vacatur and remand of the 2018 Final Rule, this rule proposes targeted 
changes to: Allow National School Lunch Program and School Breakfast 
Program operators to permanently offer flavored, low-fat milk as part 
of a reimbursable meal and for sale as a competitive beverage and allow 
flavored, low-fat milk in the Special Milk Program for Children and in 
the Child and Adult Care Food Program for participants ages 6 and 
older; allow for half of the weekly grains in the National School Lunch 
Program and School Breakfast Program menus to be whole grain-rich; and 
provide schools participating in the National School Lunch Program and 
School Breakfast Programs more time for gradual sodium reduction by 
retaining Sodium Target 1 through the end of school year (SY) 2023-
2024, continuing to Target 2 in SY 2024-2025, and eliminating the Final 
Target.

DATES: 
    Comment date: Online comments submitted through the Federal 
eRulemaking Portal on this proposed rule must be received on or before 
December 28, 2020. Mailed comments on this rule must be postmarked on 
or before December 28, 2020.
    Comments on Paperwork Reduction Act requirements: Comments on the 
information collection requirements associated with this rule must be 
received by December 28, 2020.

ADDRESSES: The USDA, Food and Nutrition Service invites interested 
persons to submit written comments on this proposed rule. USDA seeks 
comment on all aspects of this proposal.
    Comments may be submitted in writing by one of the following 
methods:
     Federal eRulemaking portal: Go to https://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Regular U.S. mail: School Programs Branch, Policy and 
Program Development Division, Food and Nutrition Service, P.O. Box 
2885, Fairfax, Virginia 22031-0885.
     Overnight, courier, or hand delivery: Shawn Martin, School 
Programs Branch, Policy and Program Development Division, Food and 
Nutrition Service, 1320 Braddock Place, 4th floor, Alexandria, Virginia 
22314.
    All written comments submitted in response to this proposed rule 
will be included in the record and will be made available to the 
public. Please be advised that the substance of the comments and the 
identity of the individuals or entities submitting the comments will be 
subject to public disclosure. FNS will make the written comments 
publicly available via https://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION:

I. Background

    This rulemaking proposes to maintain operational flexibility in 
certain Child Nutrition Program requirements related to milk, grains, 
and sodium. The proposed changes are expected to be effective in the 
spring of 2021. The proposed changes to the milk, grains, and sodium 
requirements are discussed in detail in Section IV. This section 
provides an overview of administrative and legislative actions that 
precipitated this rulemaking.
    The National School Lunch Program (NSLP) and School Breakfast 
Program (SBP) provide nutritious, well-balanced meals to millions of 
children each school day. Section 9(f)(1) of the Richard B. Russell 
National School Lunch Act (NSLA), as amended, 42 U.S.C. 1758(f)(1), 
requires that school meals are consistent with the goals of the latest 
Dietary Guidelines for Americans (Dietary Guidelines). FNS regulations 
at 7 CFR 210.10 and 220.8 detail the meal patterns and nutrition 
standards for the NSLP and SBP, respectively.
    Section 201 of Public Law 111-296 (the Healthy, Hunger-Free Kids 
Act of 2010) amended Section 4(b) of the NSLA (42 U.S.C. 1753(b)), 
requires FNS to update the meal patterns and nutrition standards for 
school meals based on recommendations in a report issued by the Health 
and Medicine Division of the National Academies of Science, 
Engineering, and Medicine (formerly, the Institute of Medicine). In 
response, the final rule, Nutrition Standards in the National School 
Lunch and School Breakfast Programs (77 FR 4088, January 26, 2012), 
hereafter referred to as the 2012 Final Rule, updated the school meal 
requirements to be consistent with the 2010 Dietary Guidelines, as 
recommended in the report School Meals: Building Blocks for Healthy 
Children.\1\
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    \1\ Institute of Medicine. 2010. School Meals: Building Blocks 
for Healthy Children. Washington, DC: The National Academies Press. 
Available at: https://www.fns.usda.gov/sites/default/files/SchoolMealsIOM.pdf.
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    In 2012, FNS updated the NSLP and SBP meal requirements to reflect 
the latest Dietary Guidelines, as required by Section 9(a)(4) of the 
NSLA (42 U.S.C. 1758(a)(4)). The implementing regulations increased the 
availability of fruits, vegetables, whole grains, and fat-free and low-
fat milk in school meals; required sodium and saturated fat limits; 
eliminated synthetic trans-fat in the weekly school menu; and 
established calorie ranges to reflect the age-appropriate calorie needs 
of children.\2\ The updated requirements

[[Page 75242]]

were largely based on recommendations issued by the Health and Medicine 
Division of the National Academies of Science, Engineering, and 
Medicine. This was the first major change to the meal patterns since 
1995. The 2012 Final Rule required most schools to increase the 
availability of fruits, vegetables, whole grains, and fat-free and low-
fat fluid milk in school meals; reduce the levels of sodium, saturated 
fat and trans-fat in meals; and meet the nutrition needs of 
schoolchildren within their age appropriate calorie requirements. These 
2012 changes were intended to enhance the diet and health of 
schoolchildren and mitigate trends in childhood obesity.
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    \2\ Final rule. Nutrition Standards in the National School Lunch 
and School Breakfast Programs, 77 FR 4088, January 26, 2012. 
Available at: https://www.federalregister.gov/documents/2012/01/26/2012-1010/nutrition-standards-in-the-national-school-lunch-and-school-breakfast-programs.
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    The regulations implemented in 2012 included three key changes with 
regard to the milk, grains, and sodium requirements:
     Allowed flavoring only in fat-free milk in the NSLP and 
SBP. Prior to 2012, schools could offer flavored or unflavored, fat-
free, low-fat, reduced fat, or whole milk;
     Implemented whole grain requirements and required that 
half of the grains offered in the NSLP and SBP be whole grain-rich 
beginning in SY 2012-2013 and SY 2013-2014, respectively, and required 
that, effective SY 2014-2015, all grains offered in both programs be 
whole grain-rich (meaning the grain product contains at least 50 
percent whole grains and the remaining grain content of the product 
must be enriched). Prior to 2012, grains had to be made from any 
combination of enriched grains, whole grains, bran, and/or germ; and
     Required schools participating in the NSLP and SBP to 
gradually reduce the sodium content of meals offered on average over 
the school week by meeting progressively lower sodium targets over a 
10-year period. At the end of the 10-year period, the sodium reduction 
in school breakfast and lunch would be significant. For example, 
schools would have had to reduce the sodium content of the meals by 
approximately 25-50 percent from the 2012 baseline to meet the Final 
Sodium Target by SY 2022-2023 (July 1, 2022). Prior to 2012, there were 
no limits on sodium for school meals.
    While some schools successfully implemented the updated nutrition 
standards, others required additional flexibility and support from FNS 
to meet the standards. FNS continued to hear about persistent 
challenges with the milk, grains, and sodium requirements. The 
challenges identified by schools included decreased student 
participation, decreased meal consumption, difficulties preparing whole 
grain-rich food items, and limited ability to offer appealing meals 
with lower sodium content.
    The requirement to offer exclusively whole grain-rich products was 
particularly challenging for some schools and, due to a long history of 
administrative and legislative actions allowing exemptions, it was 
never fully implemented nationwide. Seeking to assist schools, FNS 
allowed enriched pasta exemptions for SYs 2014-2015 and 2015-2016. 
Through successive legislative action, Congress also provided 
flexibilities for the whole grain-rich requirements, expanding the 
pasta flexibility to include other grain products. Congress also 
repeatedly delayed compliance with Sodium Target 2 through Federal 
appropriations.\3\
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    \3\ Section 751 of the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub. L. 113-235); Section 743 of the 
Consolidated and Further Continuing Appropriations Act, 2012 (Pub. 
L. 112-55); Section 752 of the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub. L. 113-235); Section 733 of the 
Consolidated Appropriations Act, 2016 (Pub. L. 114-113); Section 747 
of the Consolidated Appropriations Act, 2017 (Pub. L. 115-31); and 
Section 101(a)(1) of the Continuing Appropriations Act, 2018, 
Division D of the Continuing Appropriations Act, 2018 and 
Supplemental Appropriations for Disaster Relief Requirements Act, 
2017 (Pub. L. 115-56).
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    On May 1, 2017, the Secretary of Agriculture issued a Proclamation 
acknowledging the challenges that some schools faced in meeting milk, 
grains, and sodium requirements and committing to working with 
stakeholders to ensure that the requirements are practical and result 
in wholesome and appealing meals that schoolchildren enjoy eating. 
Subsequently, and consistent with the Consolidated Appropriations Act, 
2017 (Pub. L. 115-31), FNS issued policy guidance (SP 32-2017, May 22, 
2017, School Meal Flexibilities for School Year 2017-2018) providing 
milk, grains, and sodium flexibilities for SY 2017-2018 while taking 
steps to formulate practical regulatory relief in these areas. FNS 
policy guidance was followed by the interim final rule titled, Child 
Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium 
Requirements (82 FR 56703, November 30, 2017), hereafter referred to as 
the 2017 Interim Final Rule, which established regulations that 
extended school meal flexibilities through SY 2018-2019 and applied the 
flavored milk flexibility to the Special Milk Program for Children 
(SMP) and the Child and Adult Care Food Program (CACFP) for 
participants age 6 and older. As a result, the regulations applicable 
in SY 2018-2019 provided relief with regard to the milk, grains, and 
sodium requirements, while retaining other essential meal standards 
(e.g., fruit and vegetable quantities, fat restrictions, and calorie 
ranges) that contribute to wholesome meals.
    The 2017 Interim Final Rule extended the flexibilities already 
allowed through policy guidance and previous appropriations 
legislation. In addition, the 2017 Interim Final Rule allowed milk 
flexibility in NSLP, SMP, SBP, and CACFP. Furthermore, the rule asked 
the public to submit comments on the long-term availability of the 
milk, grains, and sodium flexibilities. The 2017 Interim Final Rule 
generated significant interest. FNS received 86,247 comments, most of 
which were form letters that opposed the regulatory changes. Opponents 
argued that making the flexibilities permanent would undermine the 
progress already made and discourage continued progress, not support 
children's dietary habits, and increase children's risk of developing 
health problems. Opponents also argued that most schools were already 
compliant, and that the food industry has resources to support 
compliance. In general, proponents argued that the flexibilities would 
provide more menu planning options for schools, and thus enhance their 
ability to offer wholesome and appealing meals. They stated that the 
flexibilities would lead to increased participation and meal 
consumption. Writing in support of the changes, the School Nutrition 
Association, representing 57,000 members, urged FNS to adopt a 
permanent solution to operational challenges rather than temporary 
rules and annual waivers.
    After careful consideration of the stakeholders' comments, FNS 
published the 2018 Final Rule giving schools the operational 
flexibility they needed to move forward with menu planning that met 
student preferences. In publishing the 2018 Final Rule, FNS determined 
that school nutrition operators made the case that the 2017 Interim 
Final Rule's targeted regulatory flexibility was practical and 
necessary for efficient Program operation and sought to improve student 
participation by enabling schools to offer children more appealing 
meals that would still be consistent with the goals of the DGAs. FNS 
recognized that allowing for taste preferences and operational 
flexibility was essential to incentivize the food industry's efforts to 
support the service of wholesome and appealing school meals.

[[Page 75243]]

    In general, the 2018 Final Rule, which became effective July 1, 
2019, for SY 2019-2020, codified the flexibilities offered in the 2017 
Interim Final Rule with some modifications. The optional flexibilities 
codified in the 2018 Final Rule included the following targeted 
changes; the balance of the meal pattern remained intact:
     Allowing schools in the NSLP and SBP to offer flavored, 
low-fat milk (1-percent fat) at lunch and breakfast and as a beverage 
for sale [agrave] la carte, and requiring that unflavored milk (fat-
free or low-fat) be available at each school meal service;
     requiring that half of the weekly grains in the NSLP and 
SBP be whole grain-rich and that the remaining weekly grains offered be 
enriched; and
     retaining Sodium Target 1 through SY 2023-2024, 
recognizing more time was needed for Target 2 and moving it to SY 2024-
2025, and removing the Final Target.
    On April 3, 2019, the Center for Science in the Public Interest 
challenged the 2018 Final Rule claiming that the regulation was 
unlawful under the Administrative Procedure Act. On April 13, 2020, a 
decision by the District of Maryland in Center for Science in the 
Public Interest v. Perdue, 438 F. Supp. 3d 546 (D. Md. 2019), found 
that the 2018 Final Rule was not a logical outgrowth of the 2017 
Interim Final Rule, and therefore violated the Administrative Procedure 
Act. Although the District Court concluded that the 2018 Final Rule was 
not inconsistent with Federal law, did not reflect unexplained and 
arbitrary decision-making, did not represent an unacknowledged and 
unexplained change in position, and that FNS appropriately responded to 
public comments, the District Court ultimately vacated the rule based 
on the procedural violation. The District Court found that both the 
elimination of the final sodium target and the elimination of the one-
hundred percent whole grain-rich requirement were not logical 
outgrowths of the Interim Final Rule. As such, the entire rule was 
vacated due to these two procedural violations.
    The District Court also concluded that the 2018 Final Rule was a 
reasonable interpretation of the relevant statutory language from the 
NSLA as it relates to the Dietary Guidelines and that the USDA was not 
arbitrary in its explanation for its decision making.
    The NSLA states that schools must serve meals ``consistent with the 
goals of the most recent'' Dietary Guidelines, 42 U.S.C. 1758(f)(1)(A). 
It is well established by Federal courts that if a statute is silent or 
ambiguous with respect to the specific issue, an agency may provide an 
interpretation that is based on a permissible construction of the 
statute. As the District Court explained, the statutory language 
``consistent with the goals of'' is ambiguous and may lead to numerous 
permissible interpretations. The District Court found that the USDA 
reasonably interpreted ``consistent with the goals of'' of the Dietary 
Guidelines to be a broad, deferential phrase that requires consistency 
with the ultimate objectives of the Dietary Guidelines--in this case, 
increasing whole-grain consumption and reducing sodium consumption--but 
that also provides USDA with flexibility to rely on its expertise to 
depart from the Dietary Guidelines specific consumption requirements. 
As the District Court decision explained, it is also reasonable for 
USDA to interpret ``consistent with the goals'' of the Dietary 
Guidelines as meaningfully different from ``consistent with'' the 
Dietary Guidelines, and to interpret that difference to permit a looser 
connection between the Dietary Guidelines and school meal standards. 
The District Court determined that the 2018 Final Rule is consistent 
with this interpretation as it reflects the ultimate objective of 
increasing whole grain consumption and decreasing sodium consumption.
    The NSLA states, that USDA shall ``promulgate rules, based on the 
most recent Dietary Guidelines, that reflect specific recommendations, 
expressed in serving recommendations, for increased consumption of 
foods and food ingredients offered in school nutrition programs,'' 42 
U.S.C. 1758(a)(4)(B), and ``promulgate proposed regulations to update 
the meal patterns and nutrition standards for the [school lunch and 
breakfast programs] . . . based on recommendations'' in the School 
Meals Report Dietary Guidelines and the Food and Nutrition Board of the 
National Research Council of the National Academy of Sciences in its 
report entitled ``School Meals: Building Blocks for Healthy Children'' 
\4\ (``School Meals Report''), 42 U.S.C. 1753(b)(3)(A)(i). The District 
Court also concluded that the statutory language ``based on'' was 
ambiguous. Similarly to ``consistent with the goals,'' the District 
Court determined that USDA reasonably interpreted Congress' mandate 
that it promulgate rules ``based on'' the School Meals Report to 
broadly require it to use these resources as the ``starting point'' for 
or ``foundational part'' of its rulemaking regarding the school meal 
standards.
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    \4\ Institute of Medicine. 2010. School Meals: Building Blocks 
for Healthy Children. Washington, DC: The National Academies Press. 
Available at: https://www.fns.usda.gov/sites/default/files/SchoolMealsIOM.pdf.
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    The 2018 Final Rule reflected this interpretation in that it used 
the recommendations in the Dietary Guidelines and the School Meals 
Report as a starting point, but provided an explanation for its 
departure from the specific consumption requirements based on taste and 
operational flexibilities, the role of product innovation, health, and 
the need for nationwide standards. Regarding whole grains, it explained 
that the whole grain-rich requirement in this final rule is a minimum 
standard, not a maximum, and reflects in a practical and feasible way 
the Dietary Guidelines' emphasis on whole grains consumption. Regarding 
sodium, the 2018 Final Rule explains that USDA's intention is to ensure 
that the sodium targets reflect the most current Dietary Guidelines, 
are feasible for most schools, and allow them to plan appealing meals 
that encourage consumption and intake of key nutrients that are 
essential for children's growth and development. Thus, the 2018 Final 
Rule demonstrated that the USDA used its expertise to balance the 
nutrition science in the Dietary Guidelines with the practical 
considerations of implementation.
    In the promulgation of the 2018 rule, USDA considered student taste 
preferences, operational flexibilities, the role of product innovation, 
nutrition science, and student health. Federal courts have found that 
an agency's decision must show that it examined the relevant data and 
articulated a satisfactory explanation for its action including a 
rational connection between the facts found and the choice made. 
Furthermore, Federal courts have also found an agency's actions to be 
arbitrary if it does one of the following: Relies on factors that 
Congress did not intend for it to consider, entirely ignores important 
aspects of the problem, explains its decisions in a manner contrary to 
the evidence before it, or reaches a decision that is so implausible 
that it cannot be ascribed to a difference in view.
    The District Court found that the USDA examined relevant data when 
it considered student taste preferences, operational flexibilities, and 
product innovation in formulating the 2018 Final Rule. Although USDA is 
required to consider certain factors, including nutritional science and 
the Dietary Guidelines, in establishing standards for the school meal 
programs, see, e.g., 42 U.S.C. 1758(a)(1)(A), 1773(e)(1), this 
requirement does not exclude other factors from USDA's consideration. 
The

[[Page 75244]]

District Court continued by stating that Congress has the authority to 
limit the factors the USDA considers when promulgating rules, but that 
it had not explicitly chosen to do so. USDA provided a satisfactory 
explanation to the District Court that regulatory certainty was 
essential to incentivize the food industry's efforts to support the 
service of wholesome and appealing school meals.
    The District Court found that the USDA had considered student taste 
preferences, operational flexibilities, and the role of product 
innovation at the expense of student health and nutritional science and 
balanced these considerations against each other. Concerning whole-
grain requirements, the District Court found that the USDA was 
permitted to balance the nutritional benefits of whole grains against 
the need for gradual adjustments in school menu planning, procurement, 
and food service equipment. As for sodium requirements, the District 
Court found that the USDA did not act arbitrarily by balancing 
nutrition science, practical application of requirements, and the need 
to ensure that children receive wholesome and appealing meals. 
Furthermore, the 2018 Final Rule did explain that almost a quarter of 
schools had asked for hardship exemptions from the whole-grain rich 
requirement for SY 2017-2018 and that continuing to operate these 
nationwide programs in an ad hoc fashion, with recurrent exemptions, 
was not feasible. The Final Rule also made clear that it was a minimum 
standard, not a maximum and that program operators may exceed the 2018 
Final Rule's minimum requirements, and that USDA would continue to 
provide training and technical assistance resources to assist schools 
in increasing whole-grain content and decreasing sodium content in 
school meals.
    The USDA acknowledged in the 2018 Final Rule that it was shifting 
its policy to find a better balance of practical operational concerns 
with student health needs. Federal courts have repeatedly found that an 
agency may not depart from prior policy sub silentio or simply 
disregard rules that are still in effect. However, Federal courts have 
permitted an agency to change its existing policies if it provides a 
reasoned explanation for the change. The District Court found that the 
USDA offered a reasoned explanation for the change of policy from the 
2012 Final Rule's whole grain requirements and sodium targets to the 
2018 Final Rule. The 2018 Final Rule explained that the USDA balanced 
practical operational concerns with student health needs in forming the 
altered whole grains standard.
    The District Court also found that the USDA's decision to delay 
Sodium Target 2 was similarly adequate. The 2018 Final Rule delayed 
this target to provide schools more time for gradual sodium reduction. 
USDA established this delay for practical reasons, such as the fact 
that many schools are not equipped for scratch cooking, which makes 
further sodium reduction challenging.
    This more flexible approach to sodium reduction allows more time 
for product reformulation, school menu adjustments, food service 
changes, personnel training, and changes in student preferences. 
Keeping the original date for Sodium Target 2 could potentially lower 
the acceptance of meals by students, who are currently accustomed to 
eating foods with higher sodium content outside of school. This could 
negatively impact program participation and contribute to food waste. 
Regarding elimination of the Final Target, the District Court found 
that it was within USDA's discretion to wait until after the new 
Dietary Guidelines and DRIs were released to set any final targets for 
sodium content. The District Court found that the USDA adequately 
explained and acknowledged its shift in policy from the 2012 Final Rule 
to the 2018 Final Rule.
    This proposed rule seeks to remedy the procedural issues in the 
2018 Final Rule by proposing to codify the operational flexibilities 
offered in the 2018 Final Rule. Codifying these flexibilities would 
provide the operational flexibility schools had been calling for and 
that Congress had repeatedly required through appropriations, while 
reflecting the recommendations of the Dietary Guidelines, as Section 
9(a)(4), 42 U.S.C. 1758(a)(4) requires. The targeted optional 
flexibilities offered in this proposed rule apply only to the milk, 
grains, and sodium requirements that were addressed in the 2018 Final 
Rule and to which schools are accustomed. This rulemaking would help 
schools continue to provide wholesome and appealing meals that reflect 
the Dietary Guidelines and meet the needs and preferences of their 
students.
    Since publication of the 2018 Final Rule, several relevant actions 
have taken place. USDA's School Meals Nutrition Cost Study (SNMCS), a 
rigorous evaluation conducted by an independent contractor, found high 
compliance in a nationally representative sample of schools in SY 2014-
2015. Compared to school meals served before the new standards (SY 
2009-2010), breakfasts and lunches served in 2014-2015 scored more than 
20 percentage points higher on the Healthy Eating Index (HEI), a 
measure of overall diet quality. Both breakfasts and lunches showed 
significant reductions in empty calories, added sugars, and refined 
grains, and significant improvements in total fruit, whole fruit, and 
whole grains.\5\ These changes in the lunch line influence what 
students are eating. In SY 2014-2015, NSLP participants had 
significantly higher average HEI-2010 scores than matched 
nonparticipants, with higher intake of vegetables, whole grains, and 
dairy, and lower intakes of refined grains and empty calories. Looking 
at intakes across a 24-hour period, lunches made a larger contribution 
to participating students' overall intakes than non-participants, which 
speaks to the important role that school meals play for the youth who 
depend on them.
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    \5\ Gearan EC & MK Fox, 2020, SMNCS Vol 2.
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    On October 20, 2020, the U.S. Surgeon General released ``The 
Surgeon General's Call to Action to Control Hypertension'' \6\ (Call to 
Action) to help improve hypertension control across the U.S. The Call 
to Action highlights the need to help Americans, including young 
children, reduce sodium intake through evidence-based interventions 
that can be implemented in diverse settings, including schools, in 
order to reduce the risk of hypertension and later cardiovascular 
disease.
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    \6\ See https://www.cdc.gov/bloodpressure/CTA.htm.
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    However, many schools reported challenges in implementing or 
maintaining compliance with certain nutrition standards, including the 
cost and availability of foods, limited staff and equipment resources, 
and difficulty understanding the new nutrition standards.\7\ Providing 
more flexibility that may not significantly affect HEI scores, but 
could elicit continued participation and acceptance of the meals would 
benefit more children, providing more children nutrition that they 
actually consume (versus throw in the trash). Further, the SNMCS found 
food waste was highest among categories directly affected by these 
proposed changes.
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    \7\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study: Volume 1--School Meal Program 
Operations and School Nutrition Environments, by Sarah Forrestal et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
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    As previously stated, this rule proposes retaining Target 2, but 
allowing more time for product

[[Page 75245]]

reformulation. Reaching this requires a more gradual process. FNS must 
ensure continued participation in the program during this process--if 
children will not eat the healthy food served in schools, children are 
not benefiting from the nutrition standards enacted. Students need to 
eat the food to acquire the nutrition, meaning we need to increase 
participation and decrease food waste.

II. Timeline and Instructions to Commenters

    FNS requests comments on the final flexibilities that were 
implemented in SY 2019-2020, which this rule proposes to codify without 
change. Comments on the day-to-day impact of these flexibilities from 
State agencies, schools, the food industry, nutrition advocates, 
parents and guardians, and other stakeholders will be extremely helpful 
in the development of the final rule. FNS will consider all relevant 
comments submitted during the 30-day comment period for this 
rulemaking, and intends to issue a final rule in spring 2021 to ensure 
that stakeholders can continue to rely on the operational flexibilities 
proposed in this rule.

III. Need for Action

    As explained in detail in the 2017 Interim Final Rule, widespread 
improvements to the NSLP and SBP meal patterns were first implemented 
in 2012; since then administrative and Congressional action has 
provided short-term assistance to schools facing challenges in 
fulfilling certain requirements, namely the grains and sodium 
requirements. This approach, however, did not allow enough lead time to 
have a significant beneficial impact on menu planning, procurement, and 
contract decisions made in advance of the school year. To implement 
recurring appropriations legislation, FNS developed and disseminated 
policy memoranda to State agencies and schools. This created a time lag 
that reduced the potential impact of the flexibilities. It also caused 
confusion, as the Congressional flexibilities were limited to specific 
school years, and were therefore issued through multiple memoranda with 
various effective dates that State agencies and schools were required 
to track. For example, FNS issued several memoranda in response to 
annual appropriations legislation addressing the whole grain-rich 
requirement. These include SP 20-2015, Requests for Exemption from the 
School Meals' Whole Grain-Rich Requirement for School Years 2014-2015 
and 2015-2016; SP 33-2016, Extension Notice: Requests for Exemption 
from the School Meals' Whole Grain-Rich Requirement for School Year 
2016-2017; and SP 32-2017, School Meal Flexibilities for School Year 
2017-2018.\8\
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    \8\ See discussion in the interim final rule Child Nutrition 
Programs: Flexibilities for Milk, Whole Grains, and Sodium 
Requirements (82 FR 56703, at 56704, November 30, 2017). Available 
at: https://www.federalregister.gov/documents/2017/11/30/2017-25799/child-nutrition-programs-flexibilities-for-milk-whole-grains-and-sodium-requirements.
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    With these considerations in mind, FNS published the 2017 Interim 
Final Rule and, ultimately, the 2018 Final Rule related to milk, 
grains, and sodium. Through these actions, FNS responded to the need 
for more operational flexibilities to accommodate menu planning, 
procurement challenges, local operational differences, taste, and 
community preferences. These actions were targeted to the areas of the 
meal pattern that have been continually troublesome since its inception 
in 2012. This proposed rule seeks to respond to the need for continued 
flexibility regarding these specific requirements.
    FNS recognizes that schools, for several years now, have come to 
rely on the operational flexibilities proposed in this rule. In fact, 
due to the continued Congressional and administrative actions described 
above, many schools have never truly implemented the 2012 requirements 
for grains as written in the 2012 Final Rule and have not prepared for 
stricter sodium standards. Moreover, once FNS took action on these 
flexibilities with a regulation, States and schools became even more 
reliant on the flexibilities. With the vacatur of the 2018 Final Rule, 
there is a renewed need for these operational flexibilities. Based on 
the District Court action, schools are expected to revert immediately 
to the previous requirements of the 2012 regulations. However, section 
2202(a) of the Families First Coronavirus Response Act (the FFCRA) 
(Pub. L. 116-127), permits the Secretary to establish a waiver for the 
purpose of providing meals under the Child Nutrition Programs with 
appropriate safety measures with respect to COVID-19, which FNS 
recently extended in the Nationwide Waiver to Allow Meal Pattern 
Flexibility in the Child Nutrition Programs--Extension #5, and which 
remains in effect through June 30, 2021. Without additional regulatory 
action, schools will have to immediately implement Sodium Target 2 and 
ensure that all grains served are whole grain rich, and would be 
restricted from serving flavored low-fat milk upon expiration of the 
FFCRA waivers. Schools and manufacturers are unprepared for these 
immediate and drastic changes to the meal programs.
    This proposed rule reinforces FNS's commitment to a process that 
will result in a final rule that provides long-term operational 
flexibility for the milk, grains, and sodium requirements and provides 
schools with adequate time to implement important changes. To require a 
return to these strict standards would be especially burdensome to 
schools who cannot meet these standards without continued operational 
flexibility.

Product Development Challenges

    As explained in detail in the 2017 Interim Final Rule, since 2012, 
the school food industry has advised FNS that product development and 
testing take considerable time.\9\ Food manufacturers suggest that it 
takes at least two to three years to reformulate and develop food 
products that support new requirements. The process involves 
innovation, research and development, testing, commercialization, 
launch, and marketing. Food manufacturers have also noted several 
specific barriers to meeting the lower sodium targets, including a low 
level of demand for these products outside of the school market, the 
cost and time involved in reformulating existing products, and 
challenges with replacing sodium in some foods given its functionality 
(e.g., adding flavor or preserving food). They have also indicated that 
a significant investment of time and resources is necessary to effect 
even marginal sodium reductions. School food manufacturers have made it 
known that transitioning to Sodium Target 2 requires product 
reformulation and innovation in the form of new technology and/or food 
products. Making these changes can present significant challenges in 
the school marketplace. Additionally, a professional association and 
policy advocacy organization stated that the final target is 
fundamentally unattainable. They expressed concern that the final 
sodium target relies on changes to manufacturing processes that could 
use technologies or chemical substitutes that pose greater health risks 
than the sodium they would replace.\10\
---------------------------------------------------------------------------

    \9\ See discussion in the interim final rule Child Nutrition 
Programs: Flexibilities for Milk, Whole Grains, and Sodium 
Requirements (82 FR 56703 at 56705, November 30, 2017). Available 
at: https://www.federalregister.gov/documents/2017/11/30/2017-25799/child-nutrition-programs-flexibilities-for-milk-whole-grains-and-sodium-requirements.
    \10\ See discussion in the final rule Child Nutrition Programs: 
Flexibilities for Milk, Whole Grains, and Sodium Requirements (83 FR 
63775, at 63782 December 12, 2018). Available at: https://www.federalregister.gov/documents/2018/12/12/2018-26762/child-nutrition-programs-flexibilities-for-milk-whole-grains-and-sodium-requirements.

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[[Page 75246]]

    Food manufacturers note that innovations for grain products can 
also take several years, and involve steps similar to those needed to 
reformulate products lower in sodium. The formulation and processing of 
foods made with whole grains differ from and can be more challenging to 
manufacture than those made with refined grains. Manufacturers have 
indicated that in the past, when companies reformulated products early, 
they incurred significantly more costs compared to those that took a 
``wait and see'' approach. The persistent uncertainty about the whole 
grain-rich requirement and the possibility of further meal pattern 
changes resulting from legislative activity have deterred manufacturers 
from investing time or resources to develop additional whole grain-rich 
products.
    While product-specific information is proprietary, the overwhelming 
and consistent message is that it will be difficult, time-consuming, 
and expensive to develop products that meet the final sodium target, 
and the 100 percent whole grain-rich requirement and that, most 
importantly, students will eat. Practically, even if the food industry 
is able to eventually develop products meeting these strict standards, 
if students will not eat them, there is no benefit to the strict 
standards. Instead, as proposed, the standards would allow for healthy 
products that are still acceptable to students. If the proposed 
standards are finalized, manufacturers will have the incentive to 
commit to reformulating products and work towards innovative solutions 
knowing that the program requirements are stable, attainable, and 
acceptable to students. Given their unique perspective on product 
development and reformulation, FNS welcomes input from the school food 
industry in developing the final rule.

Operational Challenges

    This proposed rule seeks to address the operational challenges 
experienced by some schools. It seeks to ease specific requirements 
beginning in SY 2021-2022, to help children gradually adjust to and 
enjoy school meals that are consistent with science-based 
recommendations. This proposed rule seeks to give menu planners more 
flexibility to make procurement decisions that reflect local 
preferences, empowering them in ways that may increase student 
participation and meal consumption.
    Although many schools have had success in implementing the 2012 
meal patterns and nutrition standards, FNS recognizes that many schools 
have not yet fully implemented the 2012 meal patterns due to 
feasibility and student preferences. In fact, due to administrative and 
Congressional action many schools have never implemented the grains and 
sodium requirements as intended by the 2012 Final Rule. This proposed 
rule aims to ensure that the operational flexibilities would be 
available for those schools that need them. It is important to stress 
that the proposed changes are optional, intended as additional tools 
for schools across the country working to provide students with 
wholesome meals they enjoy eating. In addition, as noted in the 2017 
Interim Final Rule and in the 2018 Final Rule, and as allowed in 7 CFR 
210.19(e), State agencies have discretion to set stricter requirements 
that are not inconsistent with the minimum nutrition standards for 
school meals.

IV. Discussion of Proposed Changes

Milk Flexibility

Previous and Current Requirements
    The 2012 Final Rule required milk offered in the NSLP, SBP, and 
CACFP to be fat-free or low-fat milk,\11\ and limited flavored milk to 
fat-free milk only. On May 5, 2017, through the Consolidated 
Appropriations Act, 2017 (Pub. L. 115-31), for SY 2017-2018, Congress 
instructed the Secretary to allow State agencies to grant exemptions 
for the service of flavored, low-fat milk (1 percent fat), through the 
NSLP and SBP and as a competitive food available for sale, provided 
schools demonstrated hardship by documenting a reduction in student 
milk consumption or increase in milk waste. The 2017 Interim Final Rule 
allowed NSLP, SMP, SBP, and CACFP operators the option to serve 
flavored, low-fat milk as part of the reimbursable meal, and for 
schools, as a competitive beverage for sale, during SY 2018-2019. NSLP 
and SBP operators that chose to exercise this option were not required 
to demonstrate a reduction in student milk consumption or an increase 
in milk waste, but were expected to incorporate this option into the 
weekly menu in a manner consistent with the dietary specifications for 
these programs. This flexibility was intended to encourage children's 
consumption of fluid milk and to ease administrative burden for 
schools, institutions, and facilities participating in multiple Child 
Nutrition Programs. The 2018 Final Rule, implemented in SY 2019-2020, 
and vacated in April 2020, maintained this flexibility as proposed in 
the 2017 Interim Final Rule, but added a requirement that unflavored 
milk be offered at each meal service. Due to the vacatur of the 2018 
Final Rule, the 2012 requirements are currently in effect.
---------------------------------------------------------------------------

    \11\ Program operators in the CACFP and SMP are required to 
serve unflavored milk to children through age five, whole milk for 
children age one, and low-fat or fat-free milk for children age two 
through five.
---------------------------------------------------------------------------

Proposal
    In this proposed rule, FNS seeks to continue the flavored milk 
flexibility, which has been available in some form since SY 2017-
2018.\12\ This proposed rule would provide schools the option to offer 
flavored, low-fat milk in reimbursable school meals, and maintain the 
requirement that unflavored milk be offered at each meal service. For 
consistency, the flavored, low-fat milk option would be extended to 
beverages for sale during the school day, and would also apply in the 
SMP and CACFP for participants ages 6 and older. FNS recognizes that 
regulatory consistency across programs facilitates administration and 
operation at the State and local levels and responds to stakeholder 
concerns. The Summer Food Service Program (SFSP) currently allows 
flavored, low-fat milk in reimbursable meals; therefore, this 
rulemaking does not include a proposed change to milk service in the 
SFSP.
---------------------------------------------------------------------------

    \12\ FNS issued SP 32-2017 guidance on May 22, 2017, 
implementing Section 747 of the Consolidated Appropriations Act, 
2017 (Pub. L. 115-31), which provides flexibilities related to whole 
grains, sodium, and flavored milk for school year (SY) 2017-2018.
---------------------------------------------------------------------------

    In addition, FNS proposes a technical correction to clarify in 
CACFP regulations that lactose-free and reduced-lactose fluid milk meet 
the CACFP meal pattern requirements for fluid milk. Current NSLP and 
SBP regulations allow schools to serve lactose-free and reduced-lactose 
milk to meet the fluid milk requirements for reimbursable meals (7 CFR 
210.10(d) and 220.8(d)). FNS has clarified that these options are also 
available in CACFP through policy, and it is generally understood that 
lactose-free and reduced-lactose milk are considered fluid milk in the 
CACFP. Clarifying in CACFP regulations that lactose-free and reduced-
lactose milk may be served as milk in reimbursable meals builds greater 
consistency in program regulations and is expected to reduce confusion 
for CACFP institutions and facilities, as well as families.
    Through this proposal, FNS seeks to maintain operational regulatory 
flexibilities that schools have come to rely on, and that FNS believes 
may

[[Page 75247]]

enhance milk consumption among children. Aligning the meal patterns 
across Child Nutrition Programs when appropriate provides consistency 
and stability for schools, institutions, and facilities operating 
multiple Child Nutrition Programs. FNS's intent to expand milk options 
is also based on concerns over decreasing milk consumption in the U.S. 
population. Data from USDA's Economic Research Service shows a decrease 
in fluid milk consumption from 196 pounds per person in 2000 to 141 
pounds per person in 2019.\13\ Milk is an important source of calcium, 
vitamin D and potassium and this rule aims to increase children's 
consumption of milk.
---------------------------------------------------------------------------

    \13\ U.S. Department of Agriculture Economic Research Service. 
Dairy products: Per capita consumption, United States (Annual). 
September 2020. Available at: https://www.ers.usda.gov/data-products/dairy-data/.
---------------------------------------------------------------------------

    Consistent with comments received for the 2017 Interim Final Rule 
and the requirement included in the 2018 Final Rule, this proposed rule 
would also require that schools that choose to offer flavored milk also 
offer unflavored milk (fat-free or low-fat) at each meal service. This 
proposal would ensure that milk variety in the NSLP and SBP is not 
limited to flavored milk, underscoring the importance of having 
unflavored milk as an option at each meal service. For example, parents 
and guardians may prefer that their child consumes unflavored milk, and 
unflavored milk may be a more appropriate pairing with a student's meal 
(e.g., with breakfast cereal). It is also intended to help schools that 
choose to offer flavored milk to stay within the weekly dietary 
specifications, as flavored milk is higher in calories than unflavored 
milk. Further, every edition of the Dietary Guidelines since 1980, 
including the Scientific Report of the 2020 Dietary Guidelines Advisory 
Committee,\14\ has recommended reducing added sugar intake. Consistent 
with this recommendation, many State agencies have promoted unflavored 
milk in the NSLP and SBP as the lower-sugar option.
---------------------------------------------------------------------------

    \14\ Dietary Guidelines Advisory Committee. 2020. Scientific 
Report of the 2020 Dietary Guidelines Advisory Committee: Advisory 
Report to the Secretary of Agriculture and the Secretary of Health 
and Human Services. U.S. Department of Agriculture, Agricultural 
Research Service, Washington, DC. Available at: https://www.dietaryguidelines.gov/2020-advisory-committee-report.
---------------------------------------------------------------------------

    The proposed requirement to ensure that unflavored milk is 
available on the school breakfast and lunch menu would not apply in the 
NSLP afterschool snack service, the SMP, or the CACFP, consistent with 
existing requirements for those Programs. These meal services do not 
have a requirement to offer a variety of fluid milk, as they are 
smaller in size and generally have fewer resources than schools that 
participate in the NSLP and SBP.
    Accordingly, this proposed rule seeks to amend the following milk 
provisions:

 NSLP (7 CFR 210.10(d)(1)(i); 7 CFR 210.11(m)(1)(ii), 
(m)(2)(ii) and (m)(3)(ii));
 SBP (7 CFR 220.8(d));
 SMP (7 CFR 215.7(a)(3)); and
 CACFP (7 CFR 226.20(a)(1)(iii) and (iv), and 7 CFR 
226.20(c)(1), (2) and (3)).

Whole Grain-Rich Flexibility

Previous and Current Requirements
    The 2012 Final Rule revised the NSLP and SBP meal patterns to 
require that, beginning in SY 2014-2015, all grains offered on the 
school menu meet the FNS whole grain-rich criteria. To meet FNS's whole 
grain-rich criteria, a product must contain at least 50 percent whole 
grains and the remaining grain content of the product must be enriched. 
Due to reported limitations on the availability of certain products 
that met this criterion when the whole grain-rich requirement first 
went into effect, FNS allowed State agencies the option to provide 
certain exemptions for SY 2014-2015. As noted earlier, successive 
legislative action in 2012, 2015, and 2016 impeded full implementation 
of the whole grain-rich requirement. For SY 2017-2018, Congress 
extended the option allowing State agencies to grant whole grain-rich 
exemptions to SFAs that requested exemptions and demonstrated hardship 
in procuring or preparing specific products that met the whole grain-
rich criteria and were acceptable to students.
    For SY 2018-2019, the 2017 Interim Final Rule provided State 
agencies discretion to grant exemptions to the whole grain-rich 
requirement to SFAs that demonstrated hardship in meeting the whole 
grain-rich criteria. SFAs that received an exemption were required to 
offer at least half of the weekly grains as whole grain-rich.
    The 2018 Final Rule, implemented in SY 2019-2020, and vacated in 
April 2020, required that at least half of the weekly grains offered in 
the NSLP and SBP meet the whole grain-rich criteria specified in FNS 
guidance, and that the remaining grain items offered must be enriched; 
exemptions were no longer required. This decision, which was 
recommended by the School Nutrition Association, representing 57,000 
school nutrition professionals, eliminated the requirement that SFAs 
request exemptions based on hardship, which many commenters, including 
State agencies and schools, described as burdensome. Due to the vacatur 
of the 2018 Final Rule, the 2012 requirements are currently in effect.
Proposal
    This rulemaking proposes to require that at least half of the 
weekly grains offered in the NSLP and SBP meet the whole grain-rich 
criteria specified in FNS guidance,\15\ and that the remaining grain 
items offered must be enriched. This proposal is consistent with FNS's 
commitment to simplify operational procedures and increase operational 
flexibility.
---------------------------------------------------------------------------

    \15\ 7 CFR 210.10(c)(2)(iv) Grains component. (A) Enriched and 
whole grains. Whole grain-rich products must contain at least 50 
percent whole grains and the remaining grains in the product must be 
enriched.
---------------------------------------------------------------------------

    Maintaining the grains requirement that menu planners have grown 
accustomed to would allow schools to continue to provide menu items 
that meet local preferences. For example, since certain regional foods 
are not widely available in acceptable whole grain-rich varieties, 
granting more flexibility through this change would help ensure that 
schools have more options to meet the expectations of their students. 
This proposal would not require schools to submit whole grain-rich 
exemption requests based on hardship as was required in the 2017 
Interim Final Rule.
    As previously described, the requirement to offer exclusively whole 
grain-rich products has been challenging for some schools and, due to a 
long history of administrative and legislative actions allowing 
exemptions, it was never fully implemented nationwide. FNS recognizes 
that continually granting short-term exemptions to the whole grain-rich 
requirement has created confusion for menu planners. Schools and the 
food industry have requested a workable regulatory solution that 
provides the long-term operational flexibility needed for food 
procurement and product reformulation.
    The whole grain-rich requirement in this proposed rule would remain 
a minimum--not a maximum--standard. By maintaining the whole grain-rich 
requirement that was in place from SY 2012-2013 through SY 2013-2014, 
and then again in SY 2019-2020, FNS acknowledges the nutritional 
benefits of whole grains, while emphasizing the need for taste and 
operational flexibility in school menu planning, procurement, and food 
service equipment. As noted above, the requirement is a minimum

[[Page 75248]]

standard; at least half of the grains offered weekly must be whole 
grain-rich, and the other grain items offered must be enriched. Schools 
are encouraged to exceed this threshold, if possible. The Dietary 
Guidelines describe whole grains as a source of dietary fiber, iron, 
zinc, and other key nutrients, and recommend including whole grains in 
a healthy eating pattern while limiting the intake of refined grains.
    FNS believes the food industry will continue efforts to develop 
more acceptable, affordable whole grain-rich products that are 
appealing to students. For instance, whole grain-rich pizza crust and 
different types of breads, such as whole grain-rich pita and flatbread, 
are now available to schools. In cases where additional product 
research and development continue to be necessary, this proposal would 
provide the food industry time to develop whole grain-rich food 
products that are suitable for reheating and hot holding, resulting in 
more acceptable meals for students. These appealing, new products could 
assist schools in sustaining student participation, encouraging meal 
consumption, and limiting food waste.
    Accordingly, this proposed rule seeks to amend the following grains 
provisions:

 NSLP (7 CFR 210.10(c)(2)(iv)(B)); and
 SBP (7 CFR 220.8(c)(2)(iv)(B)).

Sodium Flexibility

Previous and Current Requirements
    The 2012 Final Rule also set average weekly sodium limits for 
school meals.\16\ The 2012 Final Rule initiated a gradual reduction of 
the sodium content of school meals by establishing two intermediate 
sodium targets and a final sodium target. The targets were calculated 
based on the sodium recommendation from the 2010 Dietary Guidelines, 
which was subsequently reinforced by the 2015-2020 Dietary Guidelines. 
To facilitate sodium reduction over a 10-year period, the 2012 Final 
Rule required compliance with Sodium Target 1 beginning July 1, 2014 
(SY 2014-2015), Target 2 beginning July 1, 2017 (SY 2017-2018), and the 
Final Target beginning July 1, 2022 (SY 2022-2023). As noted in the 
2012 Final Rule, meeting Target 1 required menu and recipe 
modification, reaching Target 2 requires product reformulation, and 
meeting the Final Target would require innovation by product 
manufacturers. As noted previously, recognizing the challenges schools 
and the food industry were facing with regard to sodium reduction, 
Congress repeatedly delayed compliance with Sodium Target 2 through 
Federal appropriations.\17\
---------------------------------------------------------------------------

    \16\ For the sake of clarity, it is important to note that the 
sodium limit applies to the average meal offered during the school 
week; it does not apply per day, per meal, or per food item. Menu 
planners may offer a relatively high sodium meal or high sodium food 
at some point during the week if meals with lower to moderate sodium 
content are offered the rest of the week.
    \17\ Section 751 of the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub .L. 113-235); Section 743 of the 
Consolidated and Further Continuing Appropriations Act, 2012 (Pub. 
L. 112-55); Section 752 of the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub. L. 113-235); Section 733 of the 
Consolidated Appropriations Act, 2016 (Pub. L. 114-113); Section 747 
of the Consolidated Appropriations Act, 2017 (Pub. L. 115-31); and 
Section 101(a)(1) of the Continuing Appropriations Act, 2018, 
Division D of the Continuing Appropriations Act, 2018 and 
Supplemental Appropriations for Disaster Relief Requirements Act, 
2017 (Pub. L. 115-56).
---------------------------------------------------------------------------

    The 2017 Interim Final Rule retained Sodium Target 1 through SY 
2018-2019, and requested comments on continuing Target 1 for a longer 
time period. It also retained Target 2 and the Final Target as part of 
the gradual sodium reduction timeline. The 2018 Final Rule, which was 
vacated in April 2020, provided schools even more time for gradual 
sodium reduction by maintaining Sodium Target 1 through the end of SY 
2023-2024; delaying compliance with Target 2 until SY 2024-2025; and 
eliminating the Final Target. Due to the vacatur of the 2018 Final 
Rule, the 2012 requirements are currently in effect.
Proposal
    This proposed rule seeks to maintain Sodium Target 1 requirements 
through SY 2023-2024 (June 30, 2024); delay required compliance with 
Target 2 requirements to SY 2024-2025 (July 1, 2024); and remove the 
Final Target. This change to the sodium requirements is consistent with 
previous Congressional actions directing USDA to maintain Sodium Target 
1.
    While FNS recognizes the importance of reducing the sodium content 
of school meals, this proposal reflects a recognition that reaching 
this objective requires a more gradual process--extended beyond the 
planned 10 years. A 2019 FNS study on sodium found that many challenges 
to meeting stricter standards remain. Food manufacturers noted the 
difficulty of decreasing sodium in processed food products, including 
bakery items, when sodium serves a functional purpose (e.g., salt to 
strengthen gluten, baking soda to help baked goods rise). In 
particular, manufacturers were concerned that the Final Target could 
affect the ability to produce these products and that the shelf life 
for food products would be shorter without enough salt to act as a 
preservative. Additionally, schools were concerned that foods 
reformulated to meet Target 2 standards did not taste good and were not 
accepted by students, which contributed to lower school meal 
participation and cost implications.\18\ Procuring lower sodium 
products is an especially important factor for those schools that are 
not equipped for scratch cooking. Extending the sodium reduction 
timeline allows more time for product reformulation, school menu 
adjustments, food service changes, personnel training, and adapting 
student preferences.
---------------------------------------------------------------------------

    \18\ Gordon, E., Morrissey, N., Adams, E., et al. Successful 
Approaches To Reduce Sodium in School Meals Study. Prepared by 2M 
Research and Abt Associates, Alexandria, VA: U.S. Department of 
Agriculture, Food and Nutrition Service, Office of Policy Support, 
June 2019. Project Officer: Holly Figueroa. Available online at: 
www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    By proposing to retain Sodium Target 2, FNS recognizes the need to 
continue improving the nutritional quality of school meals. Most 
Americans exceed the Dietary Guidelines' recommended intakes for 
sodium, including nearly 9 in 10 children.\19\ Consuming too much 
sodium can lead to high blood pressure (hypertension), and raising an 
individual's risk of having a heart attack or stroke. Reducing sodium 
in children's diets--including in school meals--helps to support their 
overall health and wellbeing. However, as commenters on the 2017 
Interim Final Rule noted, the Final Sodium Target is fundamentally 
unattainable and could require changes to manufacturing processes that 
could require technologies or chemical substitutes that pose greater 
health risks than the sodium they would replace.\20\ Further, as the 
District Court acknowledged when vacating the 2018 Final Rule, FNS is 
permitted to deviate from the Final Sodium Target for the purpose of 
providing feasible goals for schools that increase consumption of 
meals.
---------------------------------------------------------------------------

    \19\ Centers for Disease Control and Prevention. Salt. Available 
at: https://www.cdc.gov/salt/index.htm.
    \20\ See discussion in the final rule Child Nutrition Programs: 
Flexibilities for Milk, Whole Grains, and Sodium Requirements (83 FR 
63775, at 63782 December 12, 2018). Available at: https://www.federalregister.gov/documents/2018/12/12/2018-26762/child-nutrition-programs-flexibilities-for-milk-whole-grains-and-sodium-requirements.
---------------------------------------------------------------------------

    FNS remains committed to strong nutrition standards for school 
meals, consistent with the statutory requirement that school meals 
reflect the Dietary Guidelines. In the 2018 Final Rule, FNS also 
indicated an intention to consider the ongoing update of the current 
Dietary Reference Intakes (DRI) for sodium and potassium.

[[Page 75249]]

The DRIs, a set of reference values used to plan and assess the diets 
of healthy individuals and groups developed by the National Academies 
of Sciences, Engineering, and Medicine, were updated in 2019.\21\ The 
DRI recommendations update the 2005 DRI for sodium and incorporate the 
new DRI concept of dietary intake recommendations to reduce the risk of 
chronic disease. The DRIs for sodium are generally consistent with 
those reflected in the 2015 Dietary Guidelines for Americans. While the 
DRIs recommended further reductions in sodium intake for young 
children, no specific recommendations relating to schools have been 
provided. In this proposed rule, FNS intends to ensure that the sodium 
targets reflect the most recent DRIs, are feasible for most schools, 
and allow schools to plan appealing meals that encourage consumption 
and intake of key nutrients that are essential for children's growth 
and development.
---------------------------------------------------------------------------

    \21\ Dietary Reference Intake for Sodium and Potassium, National 
Academies of Sciences, Engineering, and Medicine, https://www.nap.edu/resource/25353/030519DRISodiumPotassium.pdf.
---------------------------------------------------------------------------

    In recognition of the need for continued review of the most current 
recommendations, as well as the need to provide adequate notice to 
stakeholders of any adjustments in the requirements, this proposed rule 
would retain the sodium reduction timeline set in the 2018 Final Rule. 
Extending Target 1, delaying Target 2 implementation, and refraining 
from setting sodium reduction goals beyond Target 2 would give FNS the 
opportunity to assess the impact of the forthcoming 2020 Dietary 
Guidelines on school meals and maintain the regulatory plan relied upon 
by schools and the food industry. This timeline is intended to address 
concerns regarding student acceptability and consumption of meals with 
lower sodium, food service operational issues, product reformulation 
and innovation challenges, and the importance of safeguarding the 
health of millions of schoolchildren.
    Reverting to a more aggressive timeline while schools are facing 
the effects of a global pandemic would create challenges for which 
schools and the food industry are unprepared. The most recent data 
collected and analyzed by FNS on this topic indicated that 81 percent 
of schools were not meeting Target 2 sodium levels in SY 2014-2015.\22\ 
Given the need for operational flexibility around the Targets over the 
past years, requiring those schools to immediately meet Target 2 and 
move to the Final Target by July 1, 2022, as required under the 2012 
requirements, would be nearly impossible, especially given the 
expectation by schools and the school food industry that these targets 
had been delayed or eliminated.
---------------------------------------------------------------------------

    \22\ Based on an internal FNS analysis using data from: U.S. 
Department of Agriculture, Food and Nutrition Service, Office of 
Policy Support, School Nutrition and Meal Cost Study, Final Report 
Volume 2: Nutritional Characteristics of School Meals by Elizabeth 
Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana 
Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. Project 
Officer: John Endahl. Alexandria, VA: April 2019.
---------------------------------------------------------------------------

    Instead, the sodium timeline proposed by this rule would provide 
the operational flexibility and time necessary for manufacturers, 
producers, and vendors to develop and produce compliant products. This 
proposed rule acknowledges the persistent menu planning challenges 
experienced by schools, which have become infinitely more difficult 
during the ongoing global pandemic, seeks to balance nutrition science, 
practical application of requirements, and the need to ensure that 
children receive school meals they will eat, and reaffirms the agency's 
commitment to give schools more control over food service decisions and 
greater ability to offer wholesome and appealing meals that reflect 
local preferences.
    FNS will continue to engage with the public, health advocates, 
nutrition professionals, schools, and the food industry to gather input 
on needs and challenges associated with managing sodium levels in 
school meals. In addition, FNS will continue to ensure that low-sodium 
products are offered through USDA Foods; develop recipes that assist 
with sodium reduction; and provide menu planning resources, technical 
assistance, and information to schools through the FNS Team Nutrition 
initiative.
    Accordingly, this proposed rule seeks to amend the following sodium 
provisions:

 NSLP (7 CFR 210.10(f)(3)); and
 SBP (7 CFR 220.8(f)).

Procedural Matters

Executive Order 12866 and 13563

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

Economic Summary

    A regulatory impact analysis (RIA) must be prepared for major rules 
with economically significant effects ($100 million or more in any one 
year). This proposed rule is likely to have an economic impact of $100 
million or more in any one year, and therefore, meets the definition of 
``economically significant'' under Executive Order 12866. The RIA for 
the 2012 Final Rule, underscores the importance of recognizing the 
linkage between poor diets and health problems such as childhood 
obesity. In addition to the impacts on the health of children, the RIA 
also cites information regarding the social costs of obesity and the 
additional economic costs associated with direct medical expenses of 
obesity. The RIA for the 2012 Final Rule included a literature review 
to describe qualitatively the benefits of a nutritious diet to combat 
obesity and did not estimate individual health benefits or decreased 
medical costs that could be directly attributed to the changes in the 
2012 Final Rule, due to the complex nature of factors that impact food 
consumption and obesity.\23\ FNS believes the specific flexibilities 
proposed in this rule are intended to ease burden and increase 
feasibility while ensuring the majority of the changes resulting from 
the 2012 Final Rule remain intact.
---------------------------------------------------------------------------

    \23\ https://www.gpo.gov/fdsys/pkg/FR-2012-01-26/pdf/2012-1010.pdf: ``Because of the complexity of factors that contribute 
both to overall food consumption and to obesity, we are not able to 
define a level of disease or cost reduction that is attributable to 
the changes in meals expected to result from implementation of the 
rule. As the rule is projected to make substantial improvements in 
meals served to more than half of all school-aged children on an 
average school day, we judge that the likelihood is reasonable that 
the benefits of the rule exceed the costs, and that the final rule 
thus represents a cost-effective means of conforming NSLP and SBP 
regulations to the statutory requirements for school meals.''
---------------------------------------------------------------------------

    The Secretary of Agriculture acknowledged the operational 
challenges in meeting the meal standards related to flavored milk, 
whole grain-rich requirements, and sodium targets in the May 1, 2017, 
Proclamation and committed to working with stakeholders to ensure that 
school meal requirements are practical and result in wholesome and 
appealing meals. The 2017 Interim Final Rule, established regulations 
that extended

[[Page 75250]]

the school meal flexibilities through SY 2018-2019. FNS published the 
2018 Final Rule, providing the operational flexibilities needed to move 
forward with menu planning that met student preferences.
    As noted in the preamble, on April 13, 2020, the decision in the 
Center for Science in the Public Interest et al., v. Sonny Perdue, 
Secretary, et al., No. 8:19-cv-01004-GLS (D. Md. 2019), the U.S. 
District Court for the District of Maryland found a procedural error 
with the promulgation of the 2018 Final Rule. This rule proposes 
similar flexibilities addressed in the 2017 Interim Final Rule and the 
2018 Final Rule. The purpose of this rule is to ease operational burden 
and provide school nutrition professionals the operational flexibility 
needed to successfully operate the Child Nutrition Programs. This rule 
proposes the following changes beginning in SY 2021-2022:
     Allow NSLP and SBP operators to permanently offer 
flavored, low-fat milk as part of the reimbursable meal and for sale as 
a competitive beverage. Also allow flavored, low-fat milk in the SMP 
and CACFP for participants ages 6 and older;
     Require that at least half of the weekly grains offered in 
the NSLP and SBP to be whole grain-rich; and
     Provide schools participating in the NSLP and SBP more 
time for gradual sodium reduction by retaining Sodium Target 1 through 
the end of SY 2023-2024; continuing to Target 2 in SY 2024-2025 and 
eliminating the Final Target.
    FNS expects the health benefits of the meal standards, which are 
mainly left intact, to be similar to the overall benefits of improving 
the diets of children cited in the RIA for the 2012 Final Rule. While 
the changes in this proposed rule would provide operational 
flexibilities to the meal standards, the targeted nature of the three 
specific changes address persistent challenges with milk, grain, and 
sodium requirements. Schools must continue to meet the same caloric and 
fat limits specified in the 2012 Final Rule irrespective of whether 
they use the flexibilities proposed in this rule. The nation's students 
will continue to benefit from the changes in the 2012 Final Rule, and 
the health benefits of a nutritious diet to reduce obesity 
qualitatively described in the 2012 RIA still apply. The updated 
standards are associated with higher nutritional quality for lunches 
among low-income, low-middle-income, and middle-high income NSLP 
participants from 2013 to 2016 compared to nonparticipants.\24\
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    \24\ Association of the Healthy, Hunger-Free Kids Act With 
Dietary Quality Among Children in the U.S. National School Lunch 
Program: https://jamanetwork.com/journals/jama/article-abstract/2768807.
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    As noted above, this proposed rule would ease the operational 
challenges associated with these three requirements while balancing the 
nutrition science and operational concerns. While there have been many 
successes in the implementation of the 2012 Final Rule,\25\ some 
schools still face challenges with fully implementing the suite of 
changes. A 2019 FNS study found that, in SY 2014-2015, the majority of 
SFA directors rated the new nutrition standards as helpful in meeting 
the underlying nutrition goals for children, including decreasing 
children's sodium intakes, meeting--but not exceeding--children's 
calorie requirements, and increasing the variety of vegetables. 
However, many reported challenges in implementing or maintaining 
compliance with certain nutrition standards, including the cost and 
availability of foods, limited staff and equipment resources, and 
difficulty understanding the new nutrition standards.\26\ Among 
students who have ever eaten a school lunch, just over half (52 
percent) reported that the school lunch was only okay, more than one-
third (36 percent) reported that they liked the school lunch, and 12 
percent said they did not like the school lunch. Students who usually 
never eat a school lunch cited that they preferred to eat a lunch 
brought from home and that they did not like school lunch/the taste in 
general as reasons for not participating in the NSLP (52 percent and 40 
percent respectively).\27\ The operational flexibilities in this rule 
provide the relief that some SFAs need to successfully offer wholesome 
and appealing meals to students they enjoy eating.
---------------------------------------------------------------------------

    \25\ Robert Wood Johnson Foundation's Bridging the Gap Release 
on School Meals Perceptions in Childhood Obesity. September 2013. 
https://www.rwjf.org/en/library/research/2014/06/bridging-the-gap-s-work-on-childhood-obesity.html.
    \26\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study: Volume 1--School Meal Program 
Operations and School Nutrition Environments, by Sarah Forrestal et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    \27\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, School Nutrition and Meal Cost Study, 
Final Report Volume 4: Student Participation, Satisfaction, Plate 
Waste, and Dietary Intakes by Mary Kay Fox, Elizabeth Gearan, 
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, 
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project 
Officer: John Endahl. Alexandria, VA: April 2019.
---------------------------------------------------------------------------

    FNS is committed to nutrition science, but also understands the 
importance of practical requirements for schools to successfully 
operate the Child Nutrition Programs. The changes set forth in this 
rule still show progress in school meal nutrition, and children would 
continue to be offered and exposed to a variety of nutritious food 
choices. Further, FNS does not anticipate this proposed rule would 
deter the significant progress made to date \28\ by State and local 
operators, USDA, and industry manufacturers to achieve healthy, 
palatable meals for students. \29\ The operational flexibilities in 
this rule provide industry the ability to commit to reformulating 
products and work towards innovative solutions.
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    \28\ FNS National Data Bank Administrative Data: 99.8% of 
lunches served in fiscal year (FY) 2019 received the performance 
based reimbursement for compliance with the meal standards. This 
includes lunches served in SFAs granted whole grain exemptions.
    \29\ Across all schools, NSLP lunches with HEI-2010 scores in 
the third or highest quartiles of the distribution were associated 
with significantly higher student participation rates, relative to 
NSLP lunches with HEI-2010 scores in the lowest quartile of the 
distribution: U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, School Nutrition and Meal Cost 
Study, Final Report Volume 4: Student Participation, Satisfaction, 
Plate Waste, and Dietary Intakes by Mary Kay Fox, Elizabeth Gearan, 
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, 
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project 
Officer: John Endahl. Alexandria, VA: April 2019. Available online 
at: www.fns.usda.gov/researchand-analysis.
---------------------------------------------------------------------------

    Two key questions we would like response from the public on:
    1. Is there any feedback on costs or benefits experienced in using 
the provided flexibilities since the Final Rule was enacted?
    2. Are there any advantages or challenges from SFAs that are 
implementing these flexibilities to meet the weekly nutrient 
requirements (i.e., calories, saturated fat, etc.)?

Cost Impact

    FNS anticipates minimal if any costs associated with the proposed 
changes to the nutrition standards for milk, grains, and sodium. The 
overall meal components, macro nutrient, and calorie requirements for 
the lunch and breakfast programs remain unchanged. Schools would choose 
whether or not to use the milk flexibility, and may exceed the minimum 
whole grain-rich requirements and sodium standards proposed in this 
rule. While the average cost to produce a school lunch has increased 
significantly since SY 2005-2006, the higher nutritional quality of 
NSLP lunches did not cost significantly

[[Page 75251]]

more to produce than those of lower nutritional quality.\30\ The 
changes proposed in this rule are not expected to measurably impact 
program costs overall and there will be variation across schools 
electing some, all, or none of these proposed flexibilities. Under the 
proposed changes, schools would continue to work with existing school 
foodservice resources to serve nutritious and appealing meals that meet 
the overarching meal standards.
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    \30\ School Nutrition and Meal Cost Study (SNMCS) for SY 2014-
2015 reported the cost of producing an NSLP lunch in the average SFA 
was $3.81, which was 26 percent greater than the comparable 
(inflation-adjusted) cost in SY 2005-2006 ($3.03). The reported cost 
per SBP breakfast in 2015 dollars for the average SFA did not change 
significantly from SY 2005-2006 to SY 2014-2015 after adjusting for 
inflation. The overall nutritional quality of NSLP lunches is not 
associated with the reported cost to produce these meals. NSLP 
lunches of higher nutritional quality, as measured by the Healthy 
Eating Index (HEI)-2010, did not cost significantly more to produce 
than those of lowest nutritional quality. The average reported cost 
for schools with lunches in the highest quartile of the HEI-2010 
(scores between 85.2 and 97.9 out of a possible 100) was $3.90 and 
was not statistically different than the reported cost of $3.85 for 
schools with lunches in the lowest quartile of the HEI2010 
distribution (scores between 60.5 and 78.9). U.S. Department of 
Agriculture, Food and Nutrition Service, School Nutrition and Meal 
Cost Study Final Report Volume 3: School Meal Costs and Revenues by 
Vinh Tran et. al. Project Officer, John Endahl, Alexandria, VA: 
April 2019. Available online at: www.fns.usda.gov/researchand-analysis.
---------------------------------------------------------------------------

Milk Flexibility
    As stated in the 2017 Interim Final Rule, there may be some cases 
in which flavored, low-fat milk is slightly more expensive, and some in 
which it is slightly less expensive, compared to the varieties 
currently permitted in the 2012 Final Rule. However, any overall 
difference in cost is likely to be minimal. The requirement that 
unflavored milk be offered at each school meal service is not expected 
to impact cost. Unflavored milk was a popular offering prior to the 
2012 Final Rule. In SY 2009-2010, the most commonly offered milks were 
unflavored, low-fat (73 percent of all daily NSLP menus) and flavored, 
low-fat (63 percent).\31\ In SY 2014-2015, 91 percent of all daily 
menus offered flavored fat-free and unflavored low fat milk. Unflavored 
fat-free milk was offered in half of all daily lunch menus.\32\ Given 
that unflavored milk was already a part of most school meal menus prior 
to the new standards, the requirement to offer unflavored along with 
flavored milk is not anticipated to be an additional burden or cost, as 
schools are accustomed to offering it to satisfy the milk variety 
requirement.
---------------------------------------------------------------------------

    \31\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Research and Analysis, School Nutrition Dietary Assessment 
Study IV, Vol. I: School Foodservice Operations, School 
Environments, and Meals Offered and Served, by Mary Kay Fox, 
Elizabeth Condon, Mary Kay Crepinsek, et al. Project Officer, Fred 
Lesnett Alexandria, VA: November 2012. Available online at: 
www.fns.usda.gov/research-and-analysis.
    \32\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

Whole Grain-Rich Flexibility
    The changes in this proposed rule would provide schools the 
operational flexibility to offer some non-whole grain-rich products 
that are appealing to students without the administrative burden of the 
exemption process. All grains offered were required to be whole grain-
rich starting in SY 2014-2015; however exemptions were available to 
schools starting in the same year. Only 27 percent of weekly lunch 
menus offered only whole grain-rich items in SY 2014-2015. The majority 
(87 percent) of weekly lunch menus did offer at least 50 percent grains 
as whole grain-rich.\33\
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    \33\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    Relative to the 2012 Final Rule, the requirement that at least half 
of the weekly grains offered in NSLP and SBP are whole grain-rich may 
provide savings for some SFAs facing challenges procuring certain whole 
grain-rich products; however, FNS expects that as more products become 
available, any differential costs associated with whole grain-rich and 
non-whole grain-rich products will normalize in the market. The 
availability of whole grain-rich products through USDA Foods \34\ and 
the commercial market has increased significantly since the 
implementation of the 2012 Final Rule and continues to progress, 
providing new and affordable options to integrate into school meal 
menus. The majority of grain products offered in schools are moving 
toward whole grain-rich, and that the remaining challenges are specific 
to certain products.\35\ Due to the wide variation in local adoption of 
this flexibility, any potential overall savings are likely minimal.
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    \34\ Information about USDA Foods is available online at: 
https://www.fns.usda.gov/usda-fis.
    \35\ Over 85 percent of grain items offered in school meals 
during SY 2014-2015 were identified as whole grain-rich. Internal 
Analysis of data from: U.S. Department of Agriculture, Food and 
Nutrition Service, School Nutrition and Meal Cost Study Final Report 
Volume 2: Nutritional Characteristics of School Meals, by Elizabeth 
Gearan et. al. Project Officer, John Endahl, Alexandria, VA: April 
2019. Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

Sodium Flexibility
    This proposed rule would extend Sodium Target 1 through SY 2023-
2024, require compliance with Sodium Target 2 in SY 2024-2025, and 
would eliminate the final Sodium Target. The extension of Target 1 and 
the resulting delay of the implementation of Target 2 to SY 2024-2025 
would provide additional time to assess potential changes, including 
regulatory adjustments to incorporate updated recommendations from the 
2020 Dietary Guidelines for Americans. FNS recognizes the need for 
sodium reduction in school meals and is retaining Target 2 in this 
proposed rule.
    FNS anticipates schools will continue their efforts to reduce 
sodium in school meals while industry will continue to work towards 
lower sodium formulations. FNS does not anticipate any measurable costs 
associated with this change, as it allows additional time for schools 
and industry to reduce sodium levels in meals with practical 
requirements.\36\
---------------------------------------------------------------------------

    \36\ In the RIA for the final rule, Nutrition Standards in the 
National School Lunch and School Breakfast Programs (77 FR 4088), 
meeting the first sodium target was not estimated as a separate cost 
due to the fact that the first target was meant to be met using food 
currently available when the target went into effect in SY 2014-2015 
(or by making minimal changes to the foods offered). While the 
regulatory impact analyses did not estimate a separate cost to 
implement Sodium Target 1, it did factor in higher labor costs for 
producing meals that meet all the meal standards at full 
implementation to factor in the costs of schools replacing packaged 
goods to food prepared from scratch. Over 5 years, the final rule 
estimated that total SFAs costs would increase by $1.6 billion to 
meet all standards. The cost estimate extended only through FY 2016, 
two years before the 2012 Final Rule's second sodium target would 
have taken effect. The second sodium target was designed to be met 
with the help of industry changing food processing technology.
---------------------------------------------------------------------------

Overview of Public Comments From 2017 Interim Final Rule

    There were about 20 comment submissions that provided input on 
risks or benefits of the 2017 Interim Final Rule. The comments 
expressed concern that the flexibilities could lower health benefits 
over time of the meal standards if children are offered more sodium, 
fewer whole grain-rich foods, and milk with higher calories and 
saturated fat. The following sections review the changes and provide 
additional information regarding potential nutritional impacts.

Milk Flexibility

    In this proposed rule, FNS would allow NSLP and SBP operators the

[[Page 75252]]

option to offer flavored, low-fat milk and require that unflavored milk 
be offered at each meal service. The flavored milk flexibility would be 
extended to beverages for sale during the school day and would also 
apply in the SMP and CACFP for participants ages 6 years and older.
    As noted in the 2017 Interim Final Rule, the regulatory impact 
analyses for the 2012 Final Rule did not estimate the health benefits 
associated with specific changes in meal components such as the 
exclusion of flavored, low-fat milk. The decision to allow flavored 
low-fat milk reflects the concerns of declining milk consumption and 
the importance of the key nutrients provided by milk for school-aged 
children.\37\
---------------------------------------------------------------------------

    \37\ https://www.gpo.gov/fdsys/pkg/FR-2017-11-30/pdf/2017-25799.pdf
---------------------------------------------------------------------------

    Menu planners must make necessary adjustments in the weekly menu to 
account for the additional calories and fat content associated with 
offering flavored low-fat milk because this proposed rule would not 
change the upper caloric and fat limits specified in the 2012 Final 
Rule. The requirement to offer unflavored milk at each meal service 
ensures that students would have access to a choice in milk types and 
also prevents schools from only offering different flavored milk types 
to satisfy the milk variety requirement. FNS estimates the nutritional 
impact of allowing flavored, low-fat milk to be minimal. The added 
calories and fat would be managed by the upper caloric and fat limits. 
Further, student intake of key nutrients provided through milk would 
increase if milk consumption increases, including calcium, vitamin D, 
and vitamin B12, helping participants meet the Dietary Reference 
Intakes.\38\ Flavored milks are also wasted less than other milks in 
the school meals programs.\39\ The type of milk most frequently 
consumed was flavored, fat-free milk \40\ in SY 2014-2015, indicating 
student preference for flavored milks, and as noted earlier, flavored, 
low-fat milk was a popular choice prior to the 2012 Final Rule. 
Allowing flavored, low-fat milk as an option may decrease waste and 
increase nutrient consumption.
---------------------------------------------------------------------------

    \38\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    School Nutrition and Meal Cost Study on SY 2014-2015 found that 
``the vast majority of average weekly lunch menus were consistent 
with the DRI-based target for calcium (91 percent to virtually all 
weekly menus). This is driven by the fact that virtually all NSLP 
lunches prepared included a serving of milk (typically one cup), 
which provides all or most of the targeted amount of calcium.'' 
Similarly, the study also found that milk accounts for 10 percent of 
dietary fiber at breakfast. And that ``lunches consumed by NSLP 
participants provided significantly more vitamins D and B12, on 
average, than lunches consumed by matched nonparticipants. This 
finding is consistent with the fact that NSLP participants were more 
likely than matched nonparticipants to consume milk at lunch.''
    \39\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 4: Student 
Participation, Satisfaction, and Dietary Intakes by Mary Kay Fox et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    \40\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 4: Student 
Participation, Satisfaction, and Dietary Intakes by Mary Kay Fox et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

Whole Grain-Rich Flexibility

    Starting in SY 2021-2022, this proposed rule would require that at 
least half of the weekly grains offered in the NSLP and SBP meet the 
whole grain-rich criteria specified in FNS guidance, and the remaining 
grain items offered must be enriched. This flexibility would ease 
burden while ensuring the majority of the changes resulting from the 
2012 Final Rule remain intact.
    The requirement to offer all whole grain-rich items was never fully 
implemented due to a long history of administrative and legislative 
actions allowing exemptions. As noted earlier in SY 2014-2015, the 
first year in which all grains were required to be whole grain-rich, 
only 27 percent of weekly lunch menus actually met this requirement. 
However, the majority (87 percent) of weekly lunch menus offered at 
least 50 percent of the grains as whole grain-rich. In SBP, about half 
of all weekly breakfast menus offered only whole grain-rich grains, 
while 95 percent of all weekly breakfast menus offered at least 50 
percent of the grains as whole grain-rich. However, schools still made 
considerable progress offering whole grain-rich products.\41\
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    \41\ 70 percent of the weekly menus offered at least 80 percent 
of the grain items as whole grain-rich: U.S. Department of 
Agriculture, Food and Nutrition Service, School Nutrition and Meal 
Cost Study Final Report Volume 2: Nutritional Characteristics of 
School Meals, by Elizabeth Gearan et. al. Project Officer, John 
Endahl, Alexandria, VA: April 2019. Available online at: 
www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    In SY 2014-2015, even though almost three quarters of weekly lunch 
menus did not meet the 100 percent whole grain-rich requirement, the 
HEI-2010 component score \42\ for whole grains in NSLP lunches served 
improved significantly from SY 2009-2010 to SY 2014-2015, by 71 
percentage points (from 25 to 95 percent of the maximum score).\43\ 
Similarly for SBP breakfasts served, the score for whole grains 
increased by 58 percentage points (from 38 to 96 percent of the maximum 
score) over the same time period.\44\ These high scores were achieved 
with very few menus meeting the requirement that all grains must be 
whole grain-rich.
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    \42\ ``The Healthy Eating Index (HEI) is a measure of diet 
quality used to assess how well a set of foods aligns with key 
recommendations of the Dietary Guidelines for Americans. The HEI 
uses a scoring system to evaluate a set of foods. The scores range 
from 0 to 100. An ideal overall HEI score of 100 reflects that the 
set of foods aligns with key dietary recommendations from the 
Dietary Guidelines for Americans.
    \43\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    \44\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    Schools that have already made strides toward meeting the 100 
percent whole grain-rich requirement can continue their current path 
with the flexibility to accommodate local preferences and intermittent 
challenges related to the food supply or market. Industry continues to 
work diligently to increase the number of products reformulated to be 
whole grain-rich and appealing to students. While significant progress 
has been made, schools still face challenges with serving all whole 
grain-rich items. In SY 2014-2015, more than half of students who had 
ever eaten a school lunch reported that they never or only sometimes 
liked the whole grain-rich foods that were available.\45\
---------------------------------------------------------------------------

    \45\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 4: Student 
Participation, Satisfaction, and Dietary Intakes by Mary Kay Fox et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.

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[[Page 75253]]

    FNS does not have evidence that setting the whole grain-rich 
requirement to a percentage between 50 and 100 percent would 
successfully address the specific concerns and challenges cited by this 
requirement. Schools should be mindful of the progress to-date by 
ensuring school meal participants are continuously exposed to whole 
grain-rich offerings. Both NSLP and SBP participants had significantly 
higher usual daily intakes of whole grains than similar students not 
eating school meals. Specifically, NSLP participants were more likely 
than nonparticipants to consume a whole grain-rich bread, roll, bagel, 
and other plain bread.\46\ Similarly, at breakfast, higher SBP 
participant consumption of whole grains was also associated with lower 
consumption of ``empty calories.'' \47\
---------------------------------------------------------------------------

    \46\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 4: Student 
Participation, Satisfaction, and Dietary Intakes by Mary Kay Fox et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    \47\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 4: Student 
Participation, Satisfaction, and Dietary Intakes by Mary Kay Fox et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    The proposed change would result in some decrease in whole grain-
rich offerings, and children may not receive the same level of key 
nutrients associated with whole grain-rich items. This rule would not 
change requirement that the grains that are not whole must be 
enriched.\48\ Schools choosing to offer only half of the grain 
offerings as whole grain-rich will likely reduce the amount of dietary 
fiber available to children, making it more challenging for schools to 
meet the DRI-target for dietary fiber for school meals. Less than two-
thirds (62 percent) of average weekly lunch menus in elementary schools 
and less than half in middle and high schools (46 percent and 38 
percent, respectively) were consistent with the DRI-based target for 
dietary fiber. Additionally, mean usual dietary fiber intakes of both 
NSLP participants and matched nonparticipants were low, relative to the 
benchmark on which the DRIs are based.\49\ Fiber is identified as a 
nutrient of concern in the most recent Dietary Guidelines.\50\
---------------------------------------------------------------------------

    \48\ Enriched grains are refined grains that have been processed 
to remove the nutrient-rich bran and germ, and then have thiamin, 
riboflavin, niacin, folic acid, and iron added after processing. 
Similarly, a food that is fortified has certain vitamins and 
minerals added to increase the nutritional quality. https://fns-prod.azureedge.net/sites/default/files/resource-files/SP37_CACFP16-2019os.pdf#page=3.
    \49\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, School Nutrition and Meal Cost Study, 
Final Report Volume 4: Student Participation, Satisfaction, Plate 
Waste, and Dietary Intakes by Mary Kay Fox, Elizabeth Gearan, 
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, 
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project 
Officer: John Endahl. Alexandria, VA: April 2019. Available online 
at: www.fns.usda.gov/research-and-analysis.
    \50\ U.S. Department of Health and Human Services and U.S. 
Department of Agriculture. 2015-2020 Dietary Guidelines for 
Americans. 8th Edition. December 2015. Available at https://health.gov/dietaryguidelines/2015/guidelines/.
---------------------------------------------------------------------------

    By continuing to require that at least half of the offered grain 
items be whole grain-rich, this rule would continue to ensure that 
children are exposed to whole grain-rich products. The change in this 
proposed rule would allow more time for industry to develop appealing 
whole grain-rich items. Additionally, USDA Foods, which makes up about 
15 to 20 percent of the food items offered on an average school day, 
continues to develop new whole grain-rich products each year. This 
proposed flexibility would allow additional flexibility for schools 
that are still struggling to serve all whole grain-rich products and 
would allow for additional time for the availability of innovative 
whole grain-rich items.

Sodium Flexibility

    This proposed rule would extend Sodium Target 1 through the end of 
SY 2023-2024, require compliance with Sodium Target 2 starting in SY 
2024-2025, and eliminate the Final Target that would have gone into 
effect in SY 2022-2023. In SY 2014-2015, the first year Target 1 was 
scheduled to take effect, 72 percent of all average weekly NSLP menus, 
and 67 percent of all average weekly SBP menus met Target 1.\51\
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    \51\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    There has been significant progress to date with sodium reduction 
in school meals. From SY 2009-2010 to SY 2014-2015, the average sodium 
content of NSLP lunches served decreased by 19 percent (from 1,375 mg 
to 1,105 mg).\52\ Similarly, the average sodium content of SBP 
breakfasts served decreased by 23 percent overall (from 618 mg to 473 
mg) during the same time frame.53 54
---------------------------------------------------------------------------

    \52\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 4: Student 
Participation, Satisfaction, and Dietary Intakes by Mary Kay Fox et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    \53\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    \54\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et. 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis. This 
improvement is also reflected in the HEI-2010 score for sodium, 
which has increased by 17 percentage points from SY 2009-2010 to SY 
2014-2015, meaning that the concentration of sodium in NSLP lunches 
has decreased over time.
---------------------------------------------------------------------------

    Prior to the updated 2012 standards, sodium levels only slightly 
decreased between 5-year periods, by 2 percent overall for NSLP lunches 
and 11 percent for SBP breakfasts between SY 2004-2005 and SY 2009-
2010. The updated standards had a significant impact on sodium levels 
in the school meal programs.
---------------------------------------------------------------------------

    \55\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Research, Nutrition and Analysis, School Nutrition Dietary 
Assessment Study III, Vol. I: School Foodservice, School Food 
Environment, and Meals Offered and Served, by Anne Gordon, et al. 
Project Officer: Patricia McKinney. Alexandria, VA: 2007. Available 
online at: www.fns.usda.gov/research-and-analysis.
    \56\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Research and Analysis, School Nutrition Dietary Assessment 
Study IV, Vol. I: School Foodservice Operations, School 
Environments, and Meals Offered and Served, by Mary Kay Fox, 
Elizabeth Condon, Mary Kay Crepinsek, et al. Project Officer, Fred 
Lesnett Alexandria, VA: November 2012. Available online at: 
www.fns.usda.gov/research-and-analysis.
    \57\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, School Nutrition and MealCost Study, Final 
Report Volume 2: Nutritional Characteristics of School Meals by 
Elizabeth Gearan, Mary Kay Fox,Katherine Niland, Dallas Dotter, 
Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. 
Project Officer: John Endahl. Alexandria, VA: April 2019. Available 
online at: www.fns.usda.gov/research-and-analysis.

[[Page 75254]]



                                                Comparison of NSLP and SBP Sodium Levels in Menus Served
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Sodium (mg) in menus served:           Sodium (mg) in menus Served:          Sodium (mg) in menus prepared:
                                    --------------------------------------------------------------------------------------------------------------------
                                               SY 2004-2005 \55\                      SY 2009-2010 \56\                      SY 2014-2015 \57\
                                    --------------------------------------------------------------------------------------------------------------------
                                         NSLP         SBP         Total         NSLP         SBP         Total         NSLP         SBP         Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Elementary.........................        1,278          631        1,909        1,324          569        1,893        1,125          505        1,630
Middle.............................        1,407          761        2,168        1,392          687        2,079        1,200          564        1,764
High...............................        1,529          884        2,413        1,515          703        2,218        1,345          584        1,929
All................................        1,348          701        2,049        1,375          618        1,993        1,105          473        1,578
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sodium values are calculated using menus served to students that are weighted based on student preference patterns. This enables a comparison of sodium
  values across the three study years.

    School children are consuming a considerable amount of sodium, and 
school meals contribute to their daily total. In 2011-2012, more than 9 
in 10 U.S. school children consumed more sodium than the age-specific 
Tolerable Upper Intake Level established by the Food and Nutrition 
Board, NASEM (over 130 to 150 percent of the daily recommended 
amount).\58\ On average, most students consumed 14 percent of their 
daily sodium intake at breakfast, 31 percent at lunch, 39 percent at 
dinner, and the remaining 16 percent through snacks.\59\
---------------------------------------------------------------------------

    \58\ Sodium Intake among U.S. School-Aged Children: National 
Health and Nutrition Examination Survey, 2011-2012 Quader, Zerleen 
S. et al. Journal of the Academy of Nutrition and Dietetics, Volume 
117, Issue 1, 39-47.e5.
    \59\ Sodium Intake among U.S. School-Aged Children: National 
Health and Nutrition Examination Survey, 2011-2012 Quader, Zerleen 
S. et al. Journal of the Academy of Nutrition and Dietetics, Volume 
117, Issue 1, 39-47.e5.
---------------------------------------------------------------------------

    In SY 2014-2015, 81 percent of NSLP participants and similar 
nonparticipants had usual sodium intakes that exceeded the Tolerable 
Upper Intake Level recommended in the 2010 Dietary Guidelines for 
Americans. Lunches consumed by NSLP participants provided significantly 
less sodium than lunches consumed by similar nonparticipants.\60\
---------------------------------------------------------------------------

    \60\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 4: Student 
Participation, Satisfaction, and Dietary Intakes by Mary Kay Fox et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    The impact of extending Sodium Target 1 through SY 2023-2024 
increases the average daily sodium level permitted by about 55-70 mg 
for breakfast and 300-340 mg for lunch depending on the age/grade group 
compared to Sodium Target 2. In SY 2014-2015, about 19 percent of 
average weekly NSLP menus met Target 2, and 52 percent of average 
weekly SBP menus met Target 2.\61\ The elimination of the Final Target 
would allow 55-70 mg per day more sodium for breakfast and 300-340 mg 
per day for lunch.\62\
---------------------------------------------------------------------------

    \61\ Unpublished data from published study. U.S. Department of 
Agriculture, Food and Nutrition Service, School Nutrition and Meal 
Cost Study Final Report Volume 2: Nutritional Characteristics of 
School Meals, by Elizabeth Gearan et al. Project Officer, John 
Endahl, Alexandria, VA: April 2019. Available online at: 
www.fns.usda.gov/research-and-analysis.
    \62\ 0.95% of all schools average weekly NSLP menus and 34% of 
average weekly SBP menus met Target 3.
---------------------------------------------------------------------------

    The extension of Target 1 and delay in Target 2 would provide 
additional time for FNS to assess the 2020 Dietary Guidelines for 
Americans, which are scheduled for release at the end of 2020. 
Extending the Sodium Target 1 through SY 2023-2024 would allow FNS to 
incorporate the latest scientific evidence into the school meal 
standards, including time needed for potential regulatory changes. The 
updated DRIs, as noted in the preamble of this rule, were released in 
2019. The updated DRIs recommend lower levels of sodium intake for 
children ages 1 to 13 years.\63\
---------------------------------------------------------------------------

    \63\ National Academies of Sciences, Engineering, and Medicine 
2019. Dietary Reference Intakes for Sodium and Potassium. 
Washington, DC: The National Academies Press. https://doi.org/10.17226/25353.
---------------------------------------------------------------------------

    The DRI recommendations update the 2005 DRI for sodium and 
incorporate the new DRI concept of dietary intake recommendations to 
reduce the risk of chronic disease. As part of the new DRI concept, the 
2019 DRI on sodium includes a Chronic Disease Risk Reduction Intake 
(CDRR) level for all age groups over 12 months of age. The risk that 
was previously captured in the Tolerable Upper Intake Level (UL) of the 
2005 DRI for sodium is now captured in the CDRR. To reduce the risk of 
chronic disease in the population, daily sodium intakes should be below 
the CDRR.
    The 2019 CDRR daily level for sodium for children aged 14 to 18 
years is 2300 mg/day, the same level as the 2005 UL. However, the 2019 
CDRR daily level for younger children is lower than the 2005 UL. This 
means prior to the 2019 DRIs update, Sodium Target 2 would have 
accounted for 71 to 74 percent of the UL compared to accounting for 87 
to 95 percent of the new CDRR for the K-5 and 6-8 age grade/group.

       Comparison of Chronic Disease Risk Reduction Intake Level and Tolerable Upper Intake Limit to Schools Meals (NSLP+SBP) Sodium Target Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            2019  Chronic                                               2005
                                             disease risk                                             Tolerable
                Grade/age                     reduction       Target 1     Target 2     Target 3    upper intake     Target 1     Target 2    Target 3 *
                                            intake  (CDRR)      (%)          (%)          *(%)       (UL) level        (%)          (%)          (%)
                                             level  (mg)                                                (mg)
--------------------------------------------------------------------------------------------------------------------------------------------------------
K-5 (4-8)................................            1,500        118.0         94.7         71.3           1,900         93.2         74.7         56.3
6-8 (9-13)...............................            1,800        108.9         87.2         65.6           2,200         89.1         71.4         53.6
9-12 (14-18).............................            2,300         89.6         71.7         53.9           2,300         89.6         71.7         53.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Target 3 is presented for demonstration purposes, this rule proposed to eliminate Sodium Target 3.

    Salt preferences develop in childhood and can influence long term 
sodium intakes. In adults, there is moderate to strong evidence for a 
causal and intake-response relationship between sodium intake and 
cardiovascular risk factors, including hypertension. Reducing daily 
sodium intake below the CDRR reduces these risks and would particularly

[[Page 75255]]

benefit groups with higher prevalence and risk for hypertension and 
cardiovascular disease, including older adults and certain racial and 
ethnic groups, particularly non-Hispanic black groups.\64\ In SY 2014-
2015 about 73 percent of Non-Hispanic black children usually 
participated in NSLP and about 46 percent participated in SBP. On 
average elementary school participation was higher than middle and high 
school participation in both the NSLP and SBP.\65\
---------------------------------------------------------------------------

    \64\ National Academies of Sciences, Engineering, and Medicine 
2019. Dietary Reference Intakes for Sodium and Potassium. 
Washington, DC: The National Academies Press. https://doi.org/10.17226/25353.
    \65\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, School Nutrition and Meal Cost Study, 
Final Report Volume 4: Student Participation, Satisfaction, Plate 
Waste, and Dietary Intakes by Mary Kay Fox, Elizabeth Gearan, 
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, 
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project 
Officer: John Endahl. Alexandria, VA: April 2019. Available online 
at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    Despite insufficient evidence to assess the relationship of sodium 
intake and cardiovascular risk in children, the development of salt 
preferences early in life, evidence that blood pressure and 
cardiovascular disease risk factors track from early childhood into 
adulthood, and the public health importance of cardiovascular health, 
contributed to the rational for establishing the CDRR for children and 
adolescents.\66\ While the DRIs recommended further reductions in 
sodium intake for young children, no specific recommendations relating 
to school meals have been provided.
---------------------------------------------------------------------------

    \66\ National Academies of Sciences, Engineering, and Medicine 
2019. Dietary Reference Intakes for Sodium and Potassium. 
Washington, DC: The National Academies Press. https://doi.org/10.17226/25353.
---------------------------------------------------------------------------

    FNS is mindful of the change in sodium recommendations, which will 
be considered in the 2020 Dietary Guidelines for Americans. Publication 
of the 2020 Dietary Guidelines will provide an additional opportunity 
to assess the impact of the recommendations on school meals. FNS 
remains committed to strong nutrition standards for school meals, 
consistent with the statutory requirement that school meals reflect the 
Dietary Guidelines, including sodium targets that are achievable for 
most schools, and allow schools to plan appealing meals that encourage 
student participation.
    The proposed changes in this rule would allow the slow introduction 
to lower sodium foods and meals to students and for industry to develop 
and test consistent lower sodium products that are palatable for 
students. According to a 2019 FNS study on successful approaches to 
reduce sodium, SFAs noted that there needs to be a gradual change to 
give time for students to adjust to taste/flavor change. Gradual 
implementation allowed students adequate time to adjust and increase 
acceptance.\67\ There also appears to be variation in the acceptance of 
lower sodium foods across student age and school type and location. 
High school students were perceived as less receptive to lower sodium 
alternatives due to established taste preferences and easy access to 
off-campus food, while elementary schools reported fewer barriers to 
student acceptance when implementing sodium standards. Smaller, rural 
SFAs also reported fewer resources for purchasing and procuring foods, 
while large urban SFAs procured higher quantities of food at lower 
costs, with access to a larger number of suppliers.\68\
---------------------------------------------------------------------------

    \67\ SFAs measured student acceptance over time and in single 
occurrences by monitoring food waste, informally discussing 
preferences with students, and formally and regularly polling 
students on satisfaction.
    \68\ Gordon, E., Morrissey, N., Adams, E., et al. Successful 
Approaches To Reduce Sodium in School Meals Study. Prepared by 2M 
Research and Abt Associates, Alexandria, VA: U.S. Department of 
Agriculture, Food and Nutrition Service, Office of Policy Support, 
June 2019. Project Officer: Holly Figueroa. Available online at: 
www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    While the majority of average weekly menus in SY 2014-2015 met 
Sodium Target 1,\69\ compliance with Sodium Target 1 was associated 
with a significantly lower NSLP participation rate (54 percent versus 
64 percent). Additionally, elementary and middle school students in 
schools meeting Sodium Target 1 had significantly lower levels of 
student satisfaction with school lunches. Meeting Sodium Target 1 was 
also associated with a significantly lower level of student 
satisfaction across all types of schools for school breakfast.\70\ 
These findings demonstrate time is needed to be able to successfully 
develop lower sodium products that appeal to children.
---------------------------------------------------------------------------

    \69\ U.S. Department of Agriculture, Food and Nutrition Service, 
School Nutrition and Meal Cost Study Final Report Volume 2: 
Nutritional Characteristics of School Meals, by Elizabeth Gearan et 
al. Project Officer, John Endahl, Alexandria, VA: April 2019. 
Available online at: www.fns.usda.gov/research-and-analysis.
    \70\ For NSLP student satisfaction 43 percent versus 64 percent 
for elementary schools and 27 percent versus 49 percent for middle 
schools; overall for all school types in SBP 53 percent versus 63 
percent; and for specific school types in SBP 58 percent versus 83 
percent for elementary schools and 29 percent versus 54 percent for 
high schools. U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, School Nutrition and Meal Cost 
Study, Final Report Volume 4: Student Participation, Satisfaction, 
Plate Waste, and Dietary Intakes by Mary Kay Fox, Elizabeth Gearan, 
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, 
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project 
Officer: John Endahl. Alexandria, VA: April 2019.
---------------------------------------------------------------------------

    There were also concerns from Food Service Management Companies 
(FSMCs) that the Final Sodium Target could create inequities across 
companies. Larger FSMCs indicated they were positioned and equipped to 
meet sodium targets in different ways than smaller FSMCs. Larger FSMCs 
have a broader capacity to work with food manufacturers compared to the 
smaller, more regional FSMCs. There was also concern that the Final 
Sodium Target may be so low in sodium that it will affect the ability 
to produce processed food products, including bakery items, when sodium 
serves a functional purpose (e.g., salt to strengthen gluten, baking 
soda to help baked goods rise and extended shelf life).\71\
---------------------------------------------------------------------------

    \71\ Gordon, E., Morrissey, N., Adams, E., et al. Successful 
Approaches To Reduce Sodium in School Meals Study. Prepared by 2M 
Research and Abt Associates. Alexandria, VA: U.S. Department of 
Agriculture, Food and Nutrition Service, Office of Policy Support, 
June 2019. Project Officer: Holly Figueroa. Available online at: 
www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------

    The proposed flexibilities to the nutrition standards would allow 
additional time to work with available products to provide wholesome 
and appealing meals to students within available resources. This may 
increase student consumption of school meals and reduce food waste and 
revenue loss. While the changes resulting from the 2012 Final Rule may 
not have resulted in long-term impacts for participation in some 
schools,\72\ FNS understands there is a wide variation in challenges 
encountered by schools. The changes in this proposed rule would provide 
the local level control necessary to successfully operate the school 
meal programs.
---------------------------------------------------------------------------

    \72\ Vaudrin N, Lloyd K, Yedidia MJ, Todd M, Ohri-Vachaspati P. 
Impact of the 2010 US Healthy, Hunger-Free Kids Act on School 
Breakfast and Lunch Participation Rates Between 2008 and 2015. Am J 
Public Health. 2018;108(1):84-86. doi:10.2105/AJPH.2017.304102.
---------------------------------------------------------------------------

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies 
to analyze the impact of rulemaking on small entities and consider 
alternatives that would minimize any significant impacts on a 
substantial number of small entities. Pursuant to that review, it has 
been certified that this rule would not have a significant impact on a 
substantial number of small entities.
    This proposed rule would not have an impact on small entities 
because it adds flexibility to current Child Nutrition Program 
regulations, the changes

[[Page 75256]]

intended through this proposed rule are expected to benefit small 
entities operating meal programs under 7 CFR parts 210, 215, 220, and 
226. The impacts are not expected to be significant.

Congressional Review Act

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

Executive Order 13771

    Executive Order 13771 directs agencies to reduce regulation and 
control regulatory costs and provides that the cost of planned 
regulations be prudently managed and controlled through a budgeting 
process. This proposed rule's designation under E.O. 13771 will be 
informed by comments received. It alleviates the milk, grains, and 
sodium requirements in the Child Nutrition Program and provides 
flexibilities similar to those made available as a result of 
appropriations legislation in effect for SY 2017-2018 and 
administrative actions.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, the 
Department generally must prepare a written statement, including a cost 
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by State, local or Tribal 
governments, in the aggregate, or the private sector, of $146 million 
or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 
at https://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.
    This proposed rule does not contain Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local and 
Tribal governments or the private sector of $146 million or more in any 
one year. Thus, the rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Executive Order 12372

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

Federalism Summary Impact Statement

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

Executive Order 12988, Civil Justice Reform

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

Civil Rights Impact Analysis

    FNS has reviewed the proposed rule, in accordance with Department 
Regulation 4300-004, Civil Rights Impact Analysis, to identify and 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with disabilities. A comprehensive Civil 
Rights Impact Analysis (CRIA) was conducted on the proposed rule, 
including an analysis of any available participant data and provisions 
contained in the rule. The CRIA outlines mitigation, outreach, and 
monitoring and evaluation strategies to lessen any possible civil 
rights impacts. FNS finds the implementation of the mitigation, 
outreach, and monitoring and evaluation strategies outlined in the CRIA 
by the FNS Civil Rights Division and FNS Child Nutrition staff may 
lessen these impacts. If deemed necessary, the FNS Civil Rights 
Division will propose additional mitigation strategies to alleviate 
impacts that may result from the implementation of this rule.

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 Office of Tribal Relations (OTR) has assessed the impact of 
this proposed rule on Indian tribes and determined that this rule does 
not, to the best of its knowledge, have tribal implications that 
require tribal consultation under E.O. 13175. If consultation is 
requested, OTR will work with FNS to ensure quality consultation is 
provided.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 
1320) requires the Office of Management and Budget (OMB) to approve all 
collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
This rule contains information collections that have been approved by 
OMB under OMB #0584-0006 (7 CFR part 210 National School Lunch 
Program), expires 7/31/2023; OMB #0584-0012 (7 CFR part 220, School 
Breakfast Program) expires 4/30/2022; OMB # 0584-0005 (7 CFR part 215--
Special Milk Program for Children)

[[Page 75257]]

expires 7/31/2022, and 0584-0055 (Child and Adult Care Food Program), 
expired 2/29/2020. However, the provisions of this rule do not impose 
new or existing information collection requirements subject to approval 
by the OMB under the Paperwork Reduction Act of 1994.

E-Government Act Compliance

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

List of Subjects

7 CFR Part 210

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

7 CFR Part 215

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

7 CFR Part 220

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

7 CFR Part 226

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

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

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

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

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

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


Sec.  210.10  Meal requirements for lunches and requirements for after 
school snacks.

* * * * *
    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                Lunch meal pattern
                         Food components                         -----------------------------------------------
                                                                    Grades K-5      Grades 6-8      Grades 9-12
----------------------------------------------------------------------------------------------------------------
                                                                   Amount of food \a\ per week (minimum per day)
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \b\...............................................  2\1/2\ (\1/2\)  2\1/2\ (\1/2\)           5 (1)
Vegetables (cups) \b\...........................................  3\3/4\ (\3/4\)  3\3/4\ (\3/4\)           5 (1)
    Dark green \c\..............................................           \1/2\           \1/2\           \1/2\
    Red/Orange \c\..............................................           \3/4\           \3/4\          1\1/4\
    Beans and peas (legumes) \c\................................           \1/2\           \1/2\           \1/2\
    Starchy \c\.................................................           \1/2\           \1/2\           \1/2\
Other \c\ \d\...................................................           \1/2\           \1/2\           \3/4\
Additional Vegetables to Reach Total \e\........................           \e\ 1           \e\ 1      \e\ 1\1/2\
Grains (oz eq) \f\..............................................         8-9 (1)        8-10 (1)       10-12 (2)
Meats/Meat Alternates (oz eq)...................................        8-10 (1)        9-10 (1)       10-12 (2)
Fluid milk (cups) \g\...........................................           5 (1)           5 (1)           5 (1)
----------------------------------------------------------------------------------------------------------------
                    Other Specifications: Daily Amount Based on the Average for a 5-Day Week
----------------------------------------------------------------------------------------------------------------
Min-max calories (kcal) \h\.....................................         550-650         600-700         750-850
Saturated fat (% of total calories) \h\.........................             <10             <10             <10
Sodium Target 1 (mg) h i........................................         <=1,230         <=1,360         <=1,420
                                                                 -----------------------------------------------
Trans fat \h\ \j\...............................................  Nutrition label or manufacturer specifications
                                                                  must indicate zero grams of trans fat per
                                                                  serving.
----------------------------------------------------------------------------------------------------------------
\a\ Food items included in each group and subgroup and amount equivalents. Minimum creditable serving is \1/8\
  cup.
\b\ One quarter-cup of dried fruit counts as \1/2\ cup of fruit; 1 cup of leafy greens counts as \1/2\ cup of
  vegetables. No more than half of the fruit or vegetable offerings may be in the form of juice. All juice must
  be 100% full-strength.
\c\ Larger amounts of these vegetables may be served.
\d\ This category consists of ``Other vegetables'' as defined in paragraph (c)(2)(iii)(E) of this section. For
  the purposes of the NSLP, the ``Other vegetables'' requirement may be met with any additional amounts from the
  dark green, red/orange, and beans/peas (legumes) vegetable subgroups as defined in paragraph (c)(2)(iii) of
  this section.
\e\ Any vegetable subgroup may be offered to meet the total weekly vegetable requirement.
\f\ At least half of the grains offered weekly must be whole grain-rich as specified in FNS guidance, and the
  remaining grain items offered must be enriched.
\g\ All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk may be unflavored or
  flavored provided that unflavored milk is offered at each meal service.
\h\ Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within
  the specifications for calories, saturated fat, trans fat, and sodium. Foods of minimal nutritional value and
  fluid milk with fat content greater than 1 percent are not allowed.
\i\ Sodium Target 1 is effective from July 1, 2014 (SY 2014-2015) through June 30, 2024 (SY 2023-2024). Sodium
  Target 2 (shown) is effective July 1, 2024 (SY 2024-2025).
\j\ Food products and ingredients must contain zero grams of trans fat (less than 0.5 grams) per serving.

* * * * *
    (2) * * *
    (iv) * * *
    (A) * * * The whole grain-rich criteria included in FNS guidance 
may be updated to reflect additional information provided by industry 
on the food label or a whole grains definition by the Food and Drug 
Administration.

[[Page 75258]]

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

------------------------------------------------------------------------
   National school lunch program          Sodium timeline & limits
------------------------------------------------------------------------
                                    Target 1: July 1,  Target 2: July 1,
          Age/grade group             2014 (SY 2014-     2024 (SY 2024-
                                        2015) (mg)         2025) (mg)
------------------------------------------------------------------------
K-5...............................            <=1,230              <=935
6-8...............................            <=1,360           <= 1,035
9-12..............................            <=1,420            <=1,080
------------------------------------------------------------------------

* * * * *


Sec.  210.11  [Amended]

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

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

0
4. The authority for 7 CFR part 215 continues to read as follows:

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

0
5. In Sec.  215.7a, revise paragraph (a)(3) to read as follows:


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

* * * * *
    (a) * * *
    (3) Children 6 years old and older. Children six years old and 
older must be served low-fat (1 percent fat or less) or fat-free (skim) 
milk. Milk may be unflavored or flavored.
* * * * *

PART 220--SCHOOL BREAKFAST PROGRAM

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

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

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


Sec.  220.8   Meal requirements for breakfasts.

* * * * *
    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                                              Breakfast meal pattern
                         Food components                         -----------------------------------------------
                                                                    Grades K-5      Grades 6-8      Grades 9-12
----------------------------------------------------------------------------------------------------------------
                                                                  Amount of food a per week (minimum per day)
----------------------------------------------------------------------------------------------------------------
Fruits (cups) b c...............................................           5 (1)           5 (1)           5 (1)
Vegetables (cups) b c...........................................               0               0               0
    Dark green..................................................               0               0               0
    Red/Orange..................................................               0               0               0
    Beans and peas (legumes)....................................               0               0               0
    Starchy.....................................................               0               0               0
    Other.......................................................               0               0               0
Grains (oz eq) d................................................        7-10 (1)        8-10 (1)        9-10 (1)
Meats/Meat Alternates (oz eq) e.................................               0               0               0
Fluid milk f (cups).............................................           5 (1)           5 (1)           5 (1)
----------------------------------------------------------------------------------------------------------------
                    Other Specifications: Daily Amount Based on the Average for a 5-Day Week
----------------------------------------------------------------------------------------------------------------
Min-max calories (kcal) g h.....................................         350-500         400-550         450-600
Saturated fat (% of total calories) h...........................             <10             <10             <10
Sodium Target 1 (mg) h i........................................           <=540           <=600           <=640
Trans fat h j...................................................  Nutrition label or manufacturer specifications
                                                                  must indicate zero grams of trans fat per
                                                                  serving.
----------------------------------------------------------------------------------------------------------------
a Food items included in each group and subgroup and amount equivalents. Minimum creditable serving is \1/8\
  cup.
b One quarter cup of dried fruit counts as \1/2\ cup of fruit; 1 cup of leafy greens counts as \1/2\ cup of
  vegetables. No more than half of the fruit or vegetable offerings may be in the form of juice. All juice must
  be 100% full-strength.
c Schools must offer 1 cup of fruit daily and 5 cups of fruit weekly. Vegetables may be substituted for fruits,
  but the first two cups per week of any such substitution must be from the dark green, red/orange, beans and
  peas (legumes) or ``Other vegetables'' subgroups, as defined in Sec.   210.10(c)(2)(iii) of this chapter.

[[Page 75259]]

 
d At least half of the grains offered weekly must be whole grain-rich as specified in FNS guidance, and the
  remaining grain items offered must be enriched. Schools may substitute 1 oz. eq. of meat/meat alternate for 1
  oz. eq. of grains after the minimum daily grains requirement is met.
e There is no meat/meat alternate requirement.
f All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk may be unflavored or flavored
  provided that unflavored milk is offered at each meal service.
g The average daily calories for a 5-day school week must be within the range (at least the minimum and no more
  than the maximum values).
h Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within the
  specifications for calories, saturated fat, trans fat, and sodium. Foods of minimal nutritional value and
  fluid milk with fat content greater than 1 percent milk fat are not allowed.
i Sodium Target 1 is effective from July 1, 2014 (SY 2014-2015) through June 30, 2024 (SY 2023-2024). Sodium
  Target 2 (shown) is effective July 1, 2024 (SY 2024-2025).
j Food products and ingredients must contain zero grams of trans fat (less than 0.5 grams) per serving.

* * * * *
    (2) * * *
    (iv) * * *
    (A) Enriched and whole grains. All grains must be made with 
enriched and whole grain meal or flour, in accordance with the most 
recent FNS guidance on grains. Whole grain-rich products must contain 
at least 50 percent whole grains and the remaining grains in the 
product must be enriched. The whole grain-rich criteria included in FNS 
guidance may be updated to reflect additional information provided by 
industry on the food label or a whole grains definition by the Food and 
Drug Administration. Schools may substitute meats/meat alternates for 
grains, after the daily grains requirement is met, to meet the weekly 
grains requirement. One ounce equivalent of meat/meat alternate is 
equivalent to one ounce equivalent of grains.
* * * * *
    (B) Daily and weekly servings. The grains component is based on 
minimum daily servings plus total servings over a 5-day school week. 
Schools serving breakfast 6 or 7 days per week must increase the weekly 
grains quantity by approximately 20 percent (\1/5\) for each additional 
day. When schools operate less than 5 days per week, they may decrease 
the weekly quantity by approximately 20 percent (\1/5\) for each day 
less than 5. The servings for biscuits, rolls, muffins, and other 
grain/bread varieties are specified in FNS guidance. At least half of 
the grains offered weekly must meet the whole grain-rich criteria 
specified in FNS guidance, and the remaining grain items offered must 
be enriched.
* * * * *
    (d) Fluid milk requirement. Breakfast must include a serving of 
fluid milk as a beverage or on cereal or used in part for each purpose. 
Schools must offer students a variety (at least two different options) 
of fluid milk. All fluid milk must be fat-free (skim) or low-fat 
(1percent fat or less). Milk with higher fat content is not allowed. 
Low-fat or fat-free lactose-free and reduced-lactose fluid milk may 
also be offered. Milk may be unflavored or flavored provided that 
unflavored milk is offered at each meal service. Schools must also 
comply with other applicable fluid milk requirements in Sec.  210.10(d) 
of this chapter.
* * * * *
    (f) * * *
    (3) Sodium. School breakfasts offered to each age/grade group must 
meet, on average over the school week, the levels of sodium specified 
in the following table within the established deadlines:

----------------------------------------------------------------------------------------------------------------
                         School breakfast program                                 Sodium timeline & limits
----------------------------------------------------------------------------------------------------------------
                                                                            Target 1: July 1,  Target 2: July 1,
                              Age/grade group                                 2014 (SY 2014-     2024 (SY 2024-
                                                                                2015) (mg)         2025) (mg)
----------------------------------------------------------------------------------------------------------------
K-5.......................................................................              <=540              <=485
6-8.......................................................................              <=600              <=535
9-12......................................................................              <=640              <=570
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

0
8. The authority citation for 7 CFR part 226 continues to read as 
follows:

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

0
9. In Sec.  226.20, revise paragraph (a)(1) and the tables to 
paragraphs (c)(1), (c)(2), and (c)(3) to read as follows:


Sec.  226.20  Requirements for meals.

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

[[Page 75260]]



                                                       Child and Adult Care Food Program Breakfast
                                               [Select the appropriate components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Minimum Quantities
                              --------------------------------------------------------------------------------------------------------------------------
   Food components and food                                                                                 Ages 13-18 \2\ (at-
          items \1\                                                                                          risk afterschool
                                       Ages 1-2                 Ages 3-5                Ages 6-12              programs and         Adult participants
                                                                                                            emergency shelters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid Milk \3\...............  4 fluid ounces.........  6 fluid ounces.........  8 fluid ounces.........  8 fluid ounces........  8 fluid ounces.
Vegetables, fruits, or         \1/4\ cup..............  \1/2\ cup..............  \1/2\ cup..............  \1/2\ cup.............  \1/2\ cup.
 portions of both \4\.
Grains (oz eq): 5 6 7
    Whole grain-rich or        \1/2\ slice............  \1/2\ slice............  1 slice................  1 slice...............  2 slices.
     enriched bread.
    Whole grain-rich or        \1/2\ serving..........  \1/2\ serving..........  1 serving..............  1 serving.............  2 servings.
     enriched bread product,
     such as biscuit, roll,
     or muffin.
    Whole grain-rich,          \1/4\ cup..............  \1/4\ cup..............  \1/2\ cup..............  \1/2\ cup.............  1 cup.
     enriched, or fortified
     cooked breakfast cereal
     \8\, cereal grain, and/
     or pasta.
    Whole grain-rich,
     enriched or fortified
     ready-to-eat breakfast
     cereal (dry, cold) \8\.
        Flakes or rounds.....  \1/2\ cup..............  \1/2\ cup..............  1 cup..................  1 cup.................  2 cups.
        Puffed cereal........  \3/4\ cup..............  \3/4\ cup..............  1 \1/4\ cup............  1 \1/4\ cup...........  2 \1/2\ cup.
        Granola..............  \1/8\ cup..............  \1/8\ cup..............  \1/4\ cup..............  \1/4\ cup.............  \1/2\ cup.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Endnotes:
\1\ Must serve all three components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool participants.
\2\ Larger portion sizes than specified may need to be served to children 13 through 18 years old to meet their nutritional needs.
\3\ Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free (skim) milk for
  children two through five years old. Must be low-fat (1 percent fat or less) or fat-free (skim) milk for children 6 years old and older and adults,
  and may be unflavored or flavored. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8
  ounces of fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
\4\ Pasteurized full-strength juice may only be used to meet the vegetable or fruit requirement at one meal, including snack, per day.
\5\ At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count towards meeting the grains
  requirement.
\6\ Meat and meat alternates may be used to meet the entire grains requirement a maximum of three times a week. One ounce of meat and meat alternates is
  equal to one ounce equivalent of grains.
\7\ Beginning October 1, 2021, ounce equivalents are used to determine the quantity of creditable grains.
\8\ Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other sugars per 100 grams of dry
  cereal).

    (2) * * *

                                                   Child and Adult Care Food Program Lunch and Supper
                                               [Select the appropriate components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Minimum quantities
                              --------------------------------------------------------------------------------------------------------------------------
   Food components and food                                                                                 Ages 13-18 \2\ (at-
          items \1\                                                                                          risk afterschool
                                       Ages 1-2                 Ages 3-5                Ages 6-12              programs and         Adult participants
                                                                                                            emergency shelters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid Milk \3\...............  4 fluid ounces.........  6 fluid ounces.........  8 fluid ounces.........  8 fluid ounces........  8 fluid ounces \4\.
Meat/meat alternates (edible
 portion as served):
    Lean meat, poultry, or     1 ounce................  1 \1/2\ ounces.........  2 ounces...............  2 ounces..............  2 ounces.
     fish.
    Tofu, soy products, or     1 ounce................  1 \1/2\ ounces.........  2 ounces...............  2 ounces..............  2 ounces.
     alternate protein
     products \5\.
    Cheese...................  1 ounce................  1 \1/2\ ounces.........  2 ounces...............  2 ounces..............  2 ounces.
    Large egg................  \1/2\..................  \3/4\..................  1......................  1.....................  1.
    Cooked dry beans or peas.  \1/4\ cup..............  \3/8\ cup..............  \1/2\ cup..............  \1/2\ cup.............  \1/2\ cup.
    Peanut butter or soy nut   2 Tbsp.................  3 Tbsp.................  4 Tbsp.................  4 Tbsp................  4 Tbsp.
     butter or other nut or
     seed butters.
    Yogurt, plain or flavored  4 ounces or \1/2\ cup..  6 ounces or \3/4\ cup..  8 ounces or 1 cup......  8 ounces or 1 cup.....  8 ounces or 1 cup.
     unsweetened or sweetened
     \6\.
The following may be used to
 meet no more than 50% of the
 requirement:
    Peanuts, soy nuts, tree    \1/2\ ounce = 50%......  \3/4\ ounce = 50%......  1 ounce = 50%..........  1 ounce = 50%.........  1 ounce = 50%.
     nuts, or seeds, as
     listed in program
     guidance, or an
     equivalent quantity of
     any combination of the
     above meat/meat
     alternates (1 ounce of
     nuts/seeds = 1 ounce of
     cooked lean meat,
     poultry, or fish).
Vegetables \7\...............  \1/8\ cup..............  \1/4\ cup..............  \1/2\ cup..............  \1/2\ cup.............  \1/2\ cup.
Fruits 7 8...................  \1/8\ cup..............  \1/4\ cup..............  \1/4\ cup..............  \1/4\ cup.............  \1/2\ cup.
Grains (oz eq): 9 10
    Whole grain-rich or        \1/2\ slice............  \1/2\ slice............  1 slice................  1 slice...............  2 slices.
     enriched bread.
    Whole grain-rich or        \1/2\ serving..........  \1/2\ serving..........  1 serving..............  1 serving.............  2 servings.
     enriched bread product,
     such as biscuit, roll,
     or muffin.
    Whole grain-rich,          \1/4\ cup..............  \1/4\ cup..............  \1/2\ cup..............  \1/2\ cup.............  1 cup.
     enriched, or fortified
     cooked breakfast cereal
     \11\, cereal grain, and/
     or pasta.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Endnotes:
\1\ Must serve all five components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool and adult participants.
\2\ Larger portion sizes than specified may need to be served to children 13 through 18 years old to meet their nutritional needs.

[[Page 75261]]

 
\3\ Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free (skim) milk for
  children two through five years old. Must be low-fat (1 percent fat or less) or fat-free (skim) milk for children 6 years old and older and adults,
  and may be unflavored or flavored. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8
  ounces of fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
\4\ A serving of fluid milk is optional for suppers served to adult participants.
\5\ Alternate protein products must meet the requirements in Appendix A to Part 226 of this chapter.
\6\ Yogurt must contain no more than 23 grams of total sugars per 6 ounces.
\7\ Pasteurized full-strength juice may only be used to meet the vegetable or fruit requirement at one meal, including snack, per day.
\8\ A vegetable may be used to meet the entire fruit requirement. When two vegetables are served at lunch or supper, two different kinds of vegetables
  must be served.
\9\ At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count towards the grains
  requirement.
\10\ Beginning October 1, 2021, ounce equivalents are used to determine the quantity of the creditable grain.
\11\ Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other sugars per 100 grams of dry
  cereal).

    (3) * * *

                                                         Child and Adult Care Food Program Snack
                                               [Select two of the five components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Minimum quantities
                              --------------------------------------------------------------------------------------------------------------------------
   Food components and food                                                                                 Ages 13-18 \2\ (at-
          items \1\                                                                                          risk afterschool
                                       Ages 1-2                 Ages 3-5                Ages 6-12              programs and         Adult participants
                                                                                                            emergency shelters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid Milk \3\...............  4 fluid ounces.........  6 fluid ounces.........  8 fluid ounces.........  8 fluid ounces........  8 fluid ounces.
Meat/meat alternates (edible
 portion as served):
    Lean meat, poultry, or     \1/2\ ounce............  \1/2\ ounce............  1 ounce................  1 ounce...............  1 ounce.
     fish.
    Tofu, soy products, or     \1/2\ ounce............  \1/2\ ounce............  1 ounce................  1 ounce...............  1 ounce.
     alternate protein
     products \4\.
    Cheese...................  \1/2\ ounce............  \1/2\ ounce............  1 ounce................  1 ounce...............  1 ounce.
    Large egg................  \1/2\..................  \1/2\..................  \1/2\..................  \1/2\.................  \1/2\.
    Cooked dry beans or peas.  \1/8\ cup..............  \1/8\ cup..............  \1/4\ cup..............  \1/4\ cup.............  \1/4\ cup.
    Peanut butter or soy nut   1 Tbsp.................  1 Tbsp.................  2 Tbsp.................  2 Tbsp................  2 Tbsp.
     butter or other nut or
     seed butters.
    Yogurt, plain or flavored  2 ounces or \1/4\ cup..  2 ounces or \1/4\ cup..  4 ounces or \1/2\ cup..  4 ounces or \1/2\ cup.  4 ounces or \1/2\ cup.
     unsweetened or sweetened
     \5\.
    Peanuts, soy nuts, tree    \1/2\ ounce............  \1/2\ ounce............  1 ounce................  1 ounce...............  1 ounce.
     nuts, or seeds.
Vegetables \6\...............  \1/2\ cup..............  \1/2\ cup..............  \3/4\ cup..............  \3/4\ cup.............  \1/2\ cup.
Fruits \6\...................  \1/2\ cup..............  \1/2\ cup..............  \3/4\ cup..............  \3/4\ cup.............  \1/2\ cup.
Grains (oz eq): 7 8
    Whole grain-rich or        \1/2\ slice............  \1/2\ slice............  1 slice................  1 slice...............  1 slice.
     enriched bread.
    Whole grain-rich or        \1/2\ serving..........  \1/2\ serving..........  1 serving..............  1 serving.............  1 serving.
     enriched bread product,
     such as biscuit, roll,
     or muffin.
    Whole grain-rich,          \1/4\ cup..............  \1/4\ cup..............  \1/2\ cup..............  \1/2\ cup.............  \1/2\ cup.
     enriched, or fortified
     cooked breakfast cereal
     \9\, cereal grain, and/
     or pasta.
    Whole grain-rich,
     enriched, or fortified
     ready-to-eat breakfast
     cereal (dry, cold) \9\:.
        Flakes or rounds.....  \1/2\ cup..............  \1/2\ cup..............  1 cup..................  1 cup.................  1 cup.
        Puffed cereal........  \3/4\ cup..............  \3/4\ cup..............  1 \1/4\ cup............  1 \1/4\ cup...........  1 \1/4\ cup.
        Granola..............  \1/8\ cup..............  \1/8\ cup..............  \1/4\ cup..............  \1/4\ cup.............  \1/4\ cup.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Endnotes:
\1\ Select two of the five components for a reimbursable snack. Only one of the two components may be a beverage.
\2\ Larger portion sizes than specified may need to be served to children 13 through 18 years old to meet their nutritional needs.
\3\ Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free (skim) milk for
  children two through five years old. Must be unflavored low-fat (1 percent fat or less), unflavored fat-free (skim) milk for children six years old
  and older and adults. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of
  fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
\4\ Alternate protein products must meet the requirements in Appendix A to Part 226 of this chapter.
\5\ Yogurt must contain no more than 23 grams of total sugars per 6 ounces.
\6\ Pasteurized full-strength juice may only be used to meet the vegetable or fruit requirement at one meal, including snack, per day.
\7\ At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count towards the grains
  requirement.
\8\ Beginning October 1, 2021, ounce equivalents are used to determine the quantity of the creditable grains.
\9\ Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other sugars per 100 grams of dry
  cereal).

* * * * *

Pamilyn Miller,
Administrator, Food and Nutrition Service.
[FR Doc. 2020-25761 Filed 11-24-20; 8:45 am]
BILLING CODE 3410-30-P