[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 http://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 http://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\
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\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.
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\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.
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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.
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\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.
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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.
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\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/.
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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.
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\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.
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\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.
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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\
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\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).
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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.
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\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.
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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.
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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.
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\21\ Dietary Reference Intake for Sodium and Potassium, National
Academies of Sciences, Engineering, and Medicine, https://www.nap.edu/resource/25353/030519DRISodiumPotassium.pdf.
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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.
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\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.
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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.
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\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.''
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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.
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\25\ Robert Wood Johnson Foundation's Bridging the Gap Release
on School Meals Perceptions in Childhood Obesity. September 2013.
http://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.
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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.
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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.
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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\
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\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.
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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\
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\37\ https://www.gpo.gov/fdsys/pkg/FR-2017-11-30/pdf/2017-25799.pdf
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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.
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\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\
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\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\
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\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.
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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\
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\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 http://health.gov/dietaryguidelines/2015/guidelines/.
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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
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\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 http://www.bea.gov/iTable) in any one year. When such a statement is
needed for a rule, Section 205 of the UMRA generally requires the
Department to identify and consider a reasonable number of regulatory
alternatives and adopt the most cost effective or least burdensome
alternative that achieves the objectives of the rule.
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