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



[[Page 6983]]

Vol. 87

Monday,

No. 25

February 7, 2022

Part III





Department of Agriculture





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Food and Nutrition Service





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





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

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

[[Page 6984]]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, and 226

[FNS-2020-0038]
RIN 0584-AE81


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

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

ACTION: Final rule with request for comments.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Table of Abbreviations

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

I. Background

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

[[Page 6985]]

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

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

[[Page 6986]]

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

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

[[Page 6987]]

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

[[Page 6988]]

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

    \24\ USDA-FNS Listening Session with Nutrition Advocacy Groups, 
June 29, 2021. Available at: https://www.regulations.gov/docket/FNS-2020-0038/document.
---------------------------------------------------------------------------

Multi-Stage Approach to Nutrition Standards

    USDA's long-term goal is to establish regulations that align school 
meal nutrition standards with the Dietary Guidelines, 2020-2025 and 
support the successful provision of appealing and nutritious meals to 
millions of students each day. However, in response to the proposed 
rule, USDA received comments from a variety of stakeholders, including 
State agencies, advocacy and industry groups, and school nutrition 
professionals, noting the unprecedented disruptions that schools have 
faced over the last several years, particularly due to the COVID-19 
pandemic. For example, public comments from two State agencies 
expressed support for a transitional approach to the sodium standards, 
noting that it would be challenging for schools to move directly to 
Target 2 immediately following the pandemic-related flexibilities. A 
school nutrition professional respondent agreed, arguing that requiring 
schools to comply with the 2012 standards following administrative 
flexibilities and COVID-19 operations is unreasonable; this respondent 
also hoped that future regulations could work towards continuing to 
improve the nutritional value of school meals. A respondent 
representing large school districts pointed out that due to COVID-19, 
school meal programs are in ``operational and financial crisis,'' and 
asserted that it is likely to take years for school meal programs to 
recover and achieve program sustainability. In light of these comments 
and experience administering the school meal programs during the 
pandemic, USDA recognizes that updating the standards to reflect the 
latest dietary recommendations will require thoughtfully addressing the 
challenges stakeholders face as a result of the public health emergency 
and the subsequent supply chain and meal service disruptions, as well 
as the impacts of the multiple delays in implementing specific elements 
of the milk, whole grains, and sodium standards prior to the pandemic.
    Therefore, USDA is taking a two-stage approach to updating the 
school meal nutrition standards. This final rule, which will establish 
transitional standards for milk, whole grains, and sodium, is the first 
stage. This final rule is intended for two school years only: SY 2022-
2023 and SY 2023-2024.\25\ These transitional standards will balance 
the needs of schools as they recover from the challenges noted above, 
with measured steps towards improving nutritional quality.
---------------------------------------------------------------------------

    \25\ USDA fully expects to have new standards in place for SY 
2024-2025 and beyond. However, in case of an unanticipated delay, 
the standards set by this rule will remain legally effective until 
subsequent standards are promulgated.
---------------------------------------------------------------------------

    This transitional approach will also allow industry additional time 
to reformulate and develop products needed to meet stronger standards, 
particularly products lower in sodium that students enjoy. As a food 
industry respondent noted, consumer acceptability, and specifically 
schoolchildren's acceptance, is critical to sodium reduction efforts. 
Other food industry respondents emphasized the need to maintain student 
acceptance when reformulating products, and highlighted some specific 
challenges with maintaining palatability and food safety when reducing 
sodium. A June 2019 USDA study titled Successful Approach to Reducing 
Sodium in School Meals, which was referenced in the proposed rule and 
in public comments, identified several barriers to meeting Sodium 
Target 2 and the Final Sodium Target, including a low-level of demand 
for these products outside of the school system, the costs and time 
involved in reformulating existing products, limited capacity among 
schools to achieve the targets, and challenges with replacing sodium in 
some foods given its functionality.\26\ More recently, a 2021 survey of 
school nutrition directors found that 62 percent of respondents 
considered product or ingredient availability to be a significant 
challenge in working towards meeting Sodium Target 2 limits, while 
another 33 percent considered product or ingredient availability to be 
a moderate challenge. Only 5 percent did not consider product or 
ingredient availability to be a challenge in meeting Sodium Target 2 
limits.\27\ These concerns were also raised in in public comments, 
where some respondents noted how the pandemic has exacerbated issues 
with product availability. For example, respondents were unsure about 
industry's ability to meet demand for lower sodium products, due to 
supply chain and other challenges, and expressed concern about how 
product shortages and cost constraints could impact schools.
---------------------------------------------------------------------------

    \26\ Successful Approaches to Reduce Sodium in School Meals. 
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf.
    \27\ School Nutrition Association. Back to School 2021 Report: A 
Summary of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
---------------------------------------------------------------------------

    In the second stage, USDA intends to issue a proposed rule in fall 
2022 which will address school meal nutrition standards for SY 2024-
2025 and beyond. The new rulemaking will advance permanent standards 
that further demonstrate USDA's commitment to nutritious school meals. 
It will thoughtfully consider the areas addressed through this final 
rule and ensure that the long-term standards are consistent with the 
goals of the Dietary Guidelines, 2020-2025 and nutrition science, as 
required by the National School Lunch Act. The new rulemaking will 
incorporate meaningful stakeholder input, and will meet the nutritional 
needs of America's schoolchildren. USDA intends for the new rule to be

[[Page 6989]]

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

II. 2020 Proposed Rule Comment Summary

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

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

[[Page 6990]]

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

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

III. Transitional Standards

    USDA recognizes the importance of promoting strong nutrition 
standards, while also providing necessary support to schools as they 
respond to and recover from the public health and economic crisis. The 
challenges created by COVID-19 and supply chain constraints, raised by 
public comments, require a near-term response from USDA, which is 
achieved through this final rule. Although the proposed rule would have 
implemented permanent changes to the school meal standards, USDA agrees 
that making permanent changes in response to temporary circumstances 
created by COVID-19 is not a viable long-term solution. Following 
publication of this rule, USDA intends to work towards even stronger 
nutritional standards for reasons described further below, namely more 
positive health outcomes for children. Therefore, USDA will engage in 
another full notice-and-comment rulemaking in the near future which 
will consider, among other things, the current Dietary Guidelines. 
However, until such rulemaking is accomplished, schools need 
transitional standards that improve the nutritional content of school 
meals in an achievable manner for the short-term.
    USDA appreciates comments on the proposed rule that emphasized the 
importance of strong nutrition standards and the value of the 2012 
requirements. USDA agrees that improving the school meal pattern 
standards is critical for ensuring nutrition security, which considers 
not only food access, but specifically, access to nutritious food that 
promotes health and wellbeing. As noted in the proposed rule, many 
schools have made significant progress towards achieving the 2012 
standards; for example, the proposed rule noted that 70 percent of the 
weekly menus offered at least 80 percent of the grain items as whole 
grain-rich.\28\ However, USDA also must consider comments emphasizing 
the widespread and ongoing impact of COVID-19 on schools.
---------------------------------------------------------------------------

    \28\ See footnote 41 of Restoration of Milk, Whole Grains, and 
Sodium Flexibilities, November 25, 2020. Available at: https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252. 
See also: ``All Grains are Whole Grain Rich: Percentage Meeting 
Requirement and Percentage Below Requirement'' in Tables C.14 and 
E.14 of School Nutrition and Meal Cost Study, Final Report Volume 2: 
Nutritional Characteristics of School Meals by Elizabeth Gearan, 
Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana Washburn, 
Patricia Connor, Lauren Olsho, and Tara Wommak. Project Officer: 
John Endahl. Alexandria, VA: April 2019. Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
---------------------------------------------------------------------------

    The pandemic has impacted the entire Nation, and schools faced 
challenges adjusting to widespread closures, online and hybrid 
learning, and supply chain issues that affected the school meal service 
and the broader school environment. In public comments, respondents 
noted that the challenges facing schools are ongoing, and some schools 
are not prepared to fully meet the milk, whole grains, and sodium 
requirements from the 2012 rule. While USDA does not have current 
comprehensive data on schools that would not be prepared to fully meet 
these three standards in the absence of this final rule, USDA does have 
data on schools that faced challenges with initial implementation of 
the milk, whole grains, and sodium standards after the 2012 rule took 
effect. According to a study conducted in SY 2014-2015, the most recent 
USDA data available, only 27 percent of NSLP menus were offering 100 
percent of grains as whole grain-rich.\29\ The same study found that 
about 72 percent of weekly lunch menus met the Sodium Target 1 
requirement; however, this varied by type of school. For example, about 
56 percent of weekly lunch menus in rural schools met Sodium Target 1, 
compared to 84 percent of urban schools.\30\ Since then, there have 
been

[[Page 6991]]

several years of Congressional and administrative interventions, 
followed by two years of meal pattern waivers authorized by Congress in 
response to the public health emergency. As a result of these 
interventions, the 2012 whole grain-rich requirement and Sodium Target 
2 have never been fully implemented; many operators would need to 
significantly adapt to return fully to the 2012 nutrition standards. 
Moreover, the 2012 milk requirements have not been fully implemented in 
more than five years. After careful consideration of the proposed rule 
and public comments, USDA believes that it is prudent to provide 
transitional standards in the near-term while further revisions to the 
meal pattern are considered and established through a new notice-and-
comment rulemaking.
---------------------------------------------------------------------------

    \29\ See: ``All Grains are Whole Grain Rich: Percentage Meeting 
Requirement'' in Table C.14 of School Nutrition and Meal Cost Study, 
Final Report Volume 2: Nutritional Characteristics of School Meals 
by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter, 
Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. 
Project Officer: John Endahl. Alexandria, VA: April 2019. Available 
at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration 
date 07/31/2017.) Note: In SY 2014-2015, all grains were supposed to 
be whole grain-rich. However, State agencies had the option of 
granting exemptions to this requirement if an SFA demonstrated 
hardship in procuring compliant whole grain-rich products that were 
acceptable to students.
    \30\ See: ``Sodium: Percentage Meeting Requirement'' in Tables 
C.14 and C.16 of School Nutrition and Meal Cost Study, Final Report 
Volume 2: Nutritional Characteristics of School Meals by Elizabeth 
Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana 
Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. Project 
Officer: John Endahl. Alexandria, VA: April 2019. Available at: 
https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration date 
07/31/2017.)
---------------------------------------------------------------------------

    To ensure children were safely fed during the pandemic, schools 
served meals in ways they never had before, such as providing curbside 
meal service and delivering meals to children's homes. As noted in many 
comments, the pandemic has caused huge disruptions to the meal service, 
and school nutrition programs are stretched thin financially and 
limited in staff; respondents argued that children and staff both will 
need time to return to standard operations. They also noted that the 
pandemic has created temporary challenges, making it difficult for 
manufacturers and distributors to meet the demand for specific 
products, such as individually wrapped foods that many schools have 
relied on to provide a safe meal service during COVID-19. Vendors have 
unexpectedly canceled contracts because they could not fulfill product 
orders, or products have been re-directed to other food service 
sectors. Schools have reported difficulty obtaining responses to food 
bid solicitations and have experienced unpredictable pricing, 
inadequate substitutions, and food outages. While USDA expects that 
these challenges will ultimately be transitory, USDA agrees that the 
school marketplace will require time to recover.
    Schools have also reported staff shortages and hiring 
challenges,\31\ which have made it more difficult to safely prepare and 
serve meals that are compliant with certain meal pattern requirements. 
For example, staffing issues may make it harder to do scratch cooking. 
Altering recipes (59 percent) and increasing scratch cooking (28 
percent) were two practices that SFAs planned to implement to meet 
sodium requirements, according to a USDA survey published in June 2021. 
Many SFAs (44 percent) also reported altering recipes as a practice to 
meet the whole grain-rich standard.\32\ Current staffing and hiring 
issues may make it difficult to implement these strategies to meet meal 
pattern requirements in the near-term.
---------------------------------------------------------------------------

    \31\ A 2021 survey of school nutrition directors found that 
about 46 percent of survey respondents had reduced staffing, through 
reduction in hours, layoffs, or deferred hiring, since March 2020. 
School Nutrition Association. Back to School 2021 Report: A Summary 
of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
    \32\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, Child Nutrition Program Operations Study 
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte 
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021. 
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
---------------------------------------------------------------------------

    Throughout the pandemic, USDA's priorities shifted to focusing on 
ensuring children continued to be fed while schools were closed and 
modifying the programs to be responsive to changing school 
environments, such as social distancing needs, staffing shortages, and 
supply chain disruptions, when schools reopened. This has primarily 
been accomplished through a series of nationwide waivers. The latest 
set of nationwide waivers, which includes the targeted school meal 
pattern waiver for SY 2021-2022, will expire on June 30, 2022.\33\
---------------------------------------------------------------------------

    \33\ USDA issued a series of nationwide waivers to allow non-
congregate meal service, flexible meal times, parent or guardian 
meal pick-up, and other flexibilities. These waivers are available 
at: https://www.fns.usda.gov/fns-disaster-assistance/fns-responds-covid-19/child-nutrition-covid-19-waivers.
---------------------------------------------------------------------------

    Finalizing these transitional standards is also critical because 
according to public comments received, if the 2012 rule requirements 
apply beginning in SY 2022-2023, USDA has heard that the milk, whole 
grain, and sodium requirements would be extraordinarily difficult for 
all schools to implement successfully. As noted, previous 
implementation of these requirements was halted for years prior to the 
pandemic, and particularly in the case of sodium, go well beyond what 
is achievable given the current range of products available in the 
marketplace. In addition, in the near-term, schools are facing 
difficulties in procuring food and supplies due to manufacturer 
changes, canceled vendor or distributor contracts, product 
unavailability, unexpected and lower quality product substitutions, 
increased product pricing, and supply chain disruptions; it is not 
clear how long it will take to fully recover from these disruptions. 
This final rule balances the need to allow adequate time to recover 
from these disruptions and prior implementation challenges, with the 
need to begin transitioning to stronger nutrition standards. This 
transitional standards approach will provide schools with the ability 
to make menu adjustments, procurement revisions, and personnel training 
necessary to transition back to traditional meal service after COVID-19 
operations.
    Therefore, after thoughtful deliberation of the current 
circumstances, review of comments received in response to the proposed 
rule as well as during stakeholder meetings, and consideration of the 
current Dietary Guidelines, USDA believes that school nutrition 
operators need the transitional standards outlined in this rule in the 
near-term, as the Department works diligently to further strengthen the 
school meal pattern requirements. The following sections explain the 
transitional standards made available through this final rule, which 
are effective until long-term standards are promulgated.

A. Milk Standards

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

[[Page 6992]]

Additionally, Congress has directed USDA that it cannot restrict the 
offering of flavored, low-fat milk through Section 747 of Division A of 
the Consolidated Appropriations Act, 2017 (Pub. L. 115-31), and Section 
789 of Division A of the Consolidated Appropriations Act, 2021 (Pub. L. 
116-260).
---------------------------------------------------------------------------

    \34\ Congress instructed the Secretary to provide State agencies 
this flexibility through the Consolidated Appropriations Act, 2017 
(Pub. L. 115-31). Schools were required to demonstrate hardship by 
documenting a reduction in student milk consumption or increase in 
milk waste.
---------------------------------------------------------------------------

2020 Proposed Rule and Public Comments
    In the 2020 proposed rule, USDA proposed to continue to allow 
schools the option to offer flavored, low-fat milk in reimbursable 
school meals. As described previously, this option has been available 
to schools in some form since SY 2017-2018. The proposed rule would 
have maintained the requirement that unflavored milk be offered at each 
meal service. For consistency, the flavored, low-fat milk option would 
have been extended to competitive beverages for sale on campus during 
the school day and would apply in the SMP and CACFP for participants 
ages 6 and older. USDA also proposed a technical correction to clarify 
in CACFP regulations that lactose-free and reduced-lactose fluid milk 
meet the CACFP meal pattern requirements for fluid milk. In response to 
the 2020 proposed rule, USDA received 4,685 comments regarding the milk 
standard. The following table shows tallies of the total and unique 
comments received in response to the proposed milk standard:

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

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

[[Page 6993]]

Transitional Standard and Considerations for Future Rulemaking
    This final rule will provide NSLP and SBP operators with the 
transitional option to offer flavored, low-fat (1 percent fat) milk in 
reimbursable school meals and require that unflavored milk be offered 
at each meal service. For consistency, the flavored, low-fat milk 
option will be extended to competitive beverages for sale on the school 
campus during the school day and will also apply in the SMP and CACFP 
for participants ages 6 and older. USDA recognizes that regulatory 
consistency across programs, a long-time goal at USDA, facilitates 
program administration and operation at the State and local levels, 
fosters support, and meets stakeholder expectations.\35\
---------------------------------------------------------------------------

    \35\ The Office of Management and Budget's implementing 
memorandum, M-11-10, for Executive Order 13563, ``Executive Order 
13563, ``Improving Regulation and Regulatory Review'','' discusses 
the importance of consistency for regulatory requirements. February 
2, 2011. Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-10.pdf.
---------------------------------------------------------------------------

    The final rule's adoption of the proposed milk standards balances 
various factors, including the lack of full implementation of the 2012 
rule milk standards in recent years and the current Dietary Guidelines. 
Section 9(f)(1) of the National School Lunch Act, as amended, 42 U.S.C. 
1758(f)(1), requires that school meals are consistent with the goals of 
the latest Dietary Guidelines.\36\ Milk is a popular item among 
children and is an important source of calcium, vitamin D, and 
potassium--nutrients under consumed by the U.S. population.\37\ 
Flavored milk has received high palatability ratings from children \38\ 
and has been shown to encourage milk consumption among school-aged 
children.\39\ Studies indicate that children drink more flavored milk 
than unflavored milk, and that flavored milk served in the school meal 
programs is wasted less than unflavored milk.\40\ USDA appreciates 
concerns raised by comments regarding flavored milk, and as detailed 
below, will consider them in greater detail in the subsequent 
rulemaking. While USDA appreciates comments on whole milk, allowing 
whole milk in the school meal programs would not align with 
recommendations in the Dietary Guidelines, 2020-2025.
---------------------------------------------------------------------------

    \36\ U.S. Department of Agriculture and U.S. Department of 
Health and Human Services. 2020-2025 Dietary Guidelines for 
Americans. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
    \37\ Cohen JFW, Richardson S, Rimm EB. Impact of the Updated 
USDA School Meal Standards, Chef-Enhanced Meals, and the Removal of 
Flavored Milk on School Meal Selection and Consumption. J Acad Nutr 
Diet. May 29, 2019 May 29. Available at: https://pubmed.ncbi.nlm.nih.gov/31153957/.
    \38\ Fayet-Moore F. (2016). Effect of flavored milk vs plain 
milk on total milk intake and nutrient provision in children. 
Nutrition Reviews; 74(1). Available at: https://academic.oup.com/nutritionreviews/article/74/1/1/1905542.
    \39\ Nutrition Standards for Foods in Schools: Leading the Way 
Toward Healthier Youth (``IOM Report''), Institute of Medicine, page 
58. Available at: http://www.nationalacademies.org/hmd/Reports/2007/Nutrition-Standards-for-Foods-in-Schools-Leading-the-Way-toward-Healthier-Youth.aspx. See also: Mary M. Murphy et al., Drinking 
Flavored or Plain Milk is Positively Associated with Nutrient Intake 
and Is Not Associated with Adverse Effects on Weight Status in U.S. 
Children and Adolescents.
    \40\ A USDA study found that the mean percentage of wasted milk 
was highest for unflavored, fat-free and low-fat milks, and lowest 
for flavored, fat-free and low-fat milk. Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume4.pdf. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
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    USDA is committed to ensuring that school meals provide children 
with nutrient-dense foods that are consistent with the goals of the 
Dietary Guidelines. Flavored milks (both fat-free and low-fat) contain 
added sugars, and USDA will consider their contribution to the overall 
amount of added sugars in school meals as it develops subsequent meal 
pattern regulations to follow this final rule. The Dietary Guidelines, 
2020-2025 recommend that intake of beverages high in added sugars be 
limited, and that added sugars consist of no more than 10 percent of 
total calories per day for children aged 2 years and older. Although 
there are currently no added sugars limits in the school meal programs, 
because the NSLP and SBP calorie limits apply to the meals offered on 
average over the school week, SFAs that choose to offer flavored, low-
fat milk will need to plan menus carefully to ensure that they stay 
within the required calorie limits. SFAs should consult with their 
State agency as necessary to make proper menu adjustments.
    Consistent with the proposed rule, this final rule also requires 
that NSLP and SBP operators that choose to offer flavored milk must 
also offer unflavored milk (fat-free or low-fat) at the same meal 
service. This requirement ensures that milk variety in the NSLP and SBP 
is not limited to flavored milk choices, and that the most nutrient-
dense form of milk is always available. USDA recognizes the importance 
of having unflavored milk as a choice for students at each lunch and 
breakfast service. The requirement to ensure that unflavored milk is 
available on the school menu will not apply in the NSLP afterschool 
snack service, the SMP, or the CACFP, consistent with existing 
requirements; these programs do not have a requirement to offer a 
variety of fluid milk as they are smaller in size and resources than 
the school lunch and breakfast programs.\41\
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    \41\ Please note, while operators of NSLP afterschool snack, 
SMP, and CACFP are not required to offer a variety of fluid milk to 
all participants, operators of the Child Nutrition Programs are 
required to provide meal modifications to ensure that participants 
with disabilities have an equal opportunity to participate in and 
benefit from the programs. This would include providing participants 
with a substitute for milk, as needed, due to a disability. See: 
Accommodating Disabilities in the School Meal Programs: Guidance and 
Q&As, https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas and Modifications to Accommodate 
Disabilities in CACFP and SFSP, https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
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    It is important to note that offering flavored milk (low-fat and/or 
fat-free) is an option, not a requirement, and operators may choose not 
to offer flavored milk. For example, the local school wellness policy 
provides students, parents and guardians, and interested community 
members the opportunity to influence the school nutrition environment 
at large (see 7 CFR 210.31). Some individual schools and school 
districts have opted to remove all flavored milk from school meal menus 
via local wellness policies to reduce students' added sugars 
consumption. Schools may also consider placing unflavored milk in 
visible locations in the school cafeteria to encourage children to 
select it instead of flavored milk.
    This final rule also makes a technical correction in SMP and CACFP 
regulations to clarify that lactose-free and reduced-lactose fluid milk 
meet the SMP and CACFP requirements for fluid milk; no written request 
or statement is required for a school, institution, or facility to 
offer lactose-free or reduced-lactose fluid milk. This language aligns 
with other Program regulations, which state that lactose-free and 
reduced-lactose fluid milk may be served to meet the fluid milk 
requirement (see 7 CFR 210.10(d)(1)(i) (NSLP) and 220.8(d) (SBP)). 
Allowing lactose-free milk is consistent with the Dietary Guidelines. 
It also helps to increase access to the nutritional benefits of milk 
among populations that are more likely to experience lactose 
intolerance.\42\ This

[[Page 6994]]

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

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

B. Whole Grain-Rich Standards

    As established by the 2012 final rule, current NSLP and SBP 
regulations at 7 CFR 210.10(c)(2)(iv) and 220.8(c)(2)(iv) require all 
grains offered in school meals to meet the USDA whole grain-rich 
criteria. To meet USDA's whole grain-rich criteria, a product must 
contain at least 50 percent whole grains, and the remaining grain 
content of the product must be enriched. However, successive 
legislative and administrative action beginning in 2012 prevented full 
implementation of the whole grain-rich requirement. Prior to the 
vacatur of the 2018 final rule, in SY 2019-2020, at least 50 percent of 
the weekly grains offered in the NSLP and SBP were required to be whole 
grain-rich.
    The requirement to offer exclusively whole grain-rich products 
proved challenging for some school districts. For example, while some 
schools have successfully implemented the whole grain-rich requirement, 
others have cited student acceptance, higher costs, and a lack of 
available products as barriers to meeting the requirement.\43\ As 
noted, in SY 2014-2015, only 27 percent of NSLP menus were offering 100 
percent of grains as whole grain-rich.\44\ Due to a long history of 
administrative and legislative actions allowing exemptions, this 
requirement was never fully implemented nationwide. Seeking to assist 
schools, USDA allowed enriched pasta exemptions for SY 2014-2015 and SY 
2015-2016, and Congress expanded the pasta flexibility to include other 
grain products. Through successive legislative action, Congress 
directed USDA to allow State agencies to grant individual whole grain-
rich exemptions (Section 751 of the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub. L. 113-235); and Section 733 of the 
Consolidated Appropriations Act, 2016 (Pub. L. 114-113). In addition, 
Section 747 of the Consolidated Appropriations Act, 2017 (Pub. L. 115-
31) (2017 Appropriations Act) provided flexibilities related to whole 
grains for SY 2017-2018. More recently, Section 101(a)(1) of Division D 
of the Continuing Appropriations Act, 2018 and Supplemental 
Appropriations for Disaster Relief Requirements Act, 2017 (Pub. L. 115-
56), enacted September 8, 2017, extended the flexibilities provided by 
Section 747 of the Consolidated Appropriations Act, 2017 through 
December 8, 2017. The 2017 Appropriations Act provided authority for 
whole grain-rich exemptions through the end of SY 2017-2018, and the 
interim final rule (82 FR 56703, November 30, 2017) extended the 
availability of exemptions through SY 2018-2019.
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    \43\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, Child Nutrition Program Operations Study 
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte 
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021. 
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
    \44\ See: ``All Grains are Whole Grain Rich: Percentage Meeting 
Requirement'' in Table C.14 of School Nutrition and Meal Cost Study, 
Final Report Volume 2: Nutritional Characteristics of School Meals 
by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter, 
Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. 
Project Officer: John Endahl. Alexandria, VA: April 2019. Available 
at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration 
date 07/31/2017.) Note: In SY 2014-2015, the most recent school year 
that USDA data is available, all grains were supposed to be whole 
grain-rich. However, State agencies had the option of granting 
exemptions to this requirement if an SFA demonstrated hardship in 
procuring compliant whole grain-rich products that were acceptable 
to students.
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    For SY 2017-2018, a total of 4,297 SFAs (about 23 percent of SFAs 
operating the school meal programs) submitted whole grain-rich 
exemption requests for specific products based on hardship, and nearly 
all (4,124) received exemption approval from their State agency. In 
addition, during the pandemic, USDA permitted schools to operate SFSP 
at the end of SY 2019-2020 and in SY 2020-2021; the SFSP meal standards 
do not include a whole grain-rich requirement. USDA also provided 
nationwide meal pattern waivers through SY 2021-2022, which allowed 
SFAs to request flexibility for the whole grain-rich requirements on a 
case-by-case basis.
2020 Proposed Rule and Public Comments
    In the 2020 proposed rule, USDA proposed to require that at least 
half of the weekly grains offered in the NSLP and SBP meet the whole 
grain-rich criteria specified in USDA guidance, and that the remaining 
grain items offered must be enriched. In response to the 2020 proposed 
rule, USDA received 4,710 comments regarding the whole grain-rich 
standard. The following table shows tallies of the total and unique 
comments received in response to the proposed whole grain-rich 
standard:

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


[[Page 6995]]

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

[[Page 6996]]

helping to advance the nutritional integrity of school meals. 
Respondents noted that schools have successfully incorporated many 
whole grain-rich items on their menus, and manufacturers have improved 
many whole grain-rich products, but currently, there are still some 
products that students have trouble accepting.
    USDA agrees with comments suggesting a transitional standard in 
between the proposed rule and 2012 rule is appropriate. In addition, 
after considering comments, USDA agrees that increasing the whole 
grain-rich standard beyond what was proposed is achievable and 
appropriate and is an important step in advancing nutrition security. A 
standard between 50 and 100 percent will balance the importance of 
strengthening the whole grain-rich requirements with the difficulties 
currently facing some schools, such as supply chain disruptions, 
financial challenges, and staffing limitations related to COVID-19. 
This rule will serve as a middle-ground bridge until the notice-and-
comment rulemaking for SY 2024-2025 and beyond is complete.
    In determining what the transitional standard should be, USDA 
looked for an achievable standard that still moved meaningfully 
forward. As mentioned, comments suggested a variety of middle-ground 
thresholds, including 80 percent. The proposed rule also noted that, 
according to a study conducted in SY 2014-2015, the most recent USDA 
data available, 70 percent of weekly school menus offered at least 80 
percent of the grain items as whole grain-rich.\45\ Therefore, USDA 
finds that requiring at least 80 percent of the weekly grains offered 
in the NSLP and SBP to be whole grain-rich is an appropriate 
transitional standard. The remaining grain items offered must be 
enriched. Under this whole grain-rich requirement, SFAs are expected to 
procure and incorporate a significant amount of whole grain-rich 
product into their NSLP and SBP menus, but will have the ability to 
serve enriched grains when whole grain-rich products are not available 
or when certain products are not acceptable to students in whole grain-
rich form.
---------------------------------------------------------------------------

    \45\ See footnote 41 of Restoration of Milk, Whole Grains, and 
Sodium Flexibilities, November 25, 2020. Available at: https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252. 
See also: ``All Grains are Whole Grain Rich: Percentage Meeting 
Requirement and Percentage Below Requirement'' in Tables C.14 and 
E.14 of School Nutrition and Meal Cost Study, Final Report Volume 2: 
Nutritional Characteristics of School Meals by Elizabeth Gearan, 
Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana Washburn, 
Patricia Connor, Lauren Olsho, and Tara Wommak. Project Officer: 
John Endahl. Alexandria, VA: April 2019. Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
---------------------------------------------------------------------------

    The current Dietary Guidelines recommend that at least half of 
total grains consumed should be whole grains. The Dietary Guidelines 
also note that while school-age children, on average, meet the 
recommended intake of total grains, they do not meet the recommendation 
to make half of their grains whole grains. With this final rule, USDA 
is continuing to advance the important progress made in improving 
school nutrition standards. Compared to the nutrition requirements that 
were in effect prior to COVID-19, this transitional rule provides 
meaningful, achievable improvements in the whole grain-rich standard, 
while continuing to be responsive to the current needs of schools. The 
80 percent requirement is consistent with and based on the Dietary 
Guidelines, 2020-2025 recommendation regarding consumption of more 
whole grains and is intended to be a transitional threshold as USDA 
works to enhance the meal pattern standards in a way that reflects the 
latest nutrition science.\46\
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    \46\ As noted by the court in CSPI, the statutory language 
requiring that meals be ``consistent with'' Dietary Guidelines and 
that regulatory meal pattern standards be ``based on'' the Dietary 
Guidelines (see 42 U.S.C. 1758(f)(1)(A) and (a)(4)(B)) is 
sufficiently general to allow for meal pattern standards that use 
the Dietary Guidelines as a starting point and align with general 
recommended goals, rather than exactly replicating specific 
quantitative standards. See 438 F. Supp. 3d at 562-63.
---------------------------------------------------------------------------

    The requirement that at least 80 percent of the weekly grains 
offered in the NSLP and SBP are whole grain-rich is a minimum standard, 
not a maximum. It reflects a practical and feasible way to work towards 
the Dietary Guidelines' emphasis on increasing whole grain consumption 
as USDA considers further changes in a future rulemaking. Requiring at 
least 80 percent--as opposed to the proposed 50 percent--of the weekly 
grains offered in the NSLP and SBP to be whole grain-rich is a standard 
that many schools were able to accomplish prior to the COVID-19 
pandemic. This achievable, transitional standard gives schools the 
ability to plan healthy meals that reflect regional and cultural 
student preferences and allows the food industry time to develop more 
whole grain-rich products that students find acceptable. A 2021 survey 
of school nutrition directors found that 49 percent of respondents 
considered product or ingredient availability to be a significant 
challenge in meeting the whole grain-rich requirement. Another 44 
percent of respondents considered product or ingredient availability to 
be a moderate challenge.\47\ This is consistent with USDA research that 
found that 45 percent of SFA respondents identified lack of available 
products as a challenge to meeting the whole grain-rich requirement. 
SFAs also identified purchasing whole grain-rich products as the top 
strategy to meet this requirement, suggesting that product availability 
is key to success in meeting the whole grain-rich standard.\48\
---------------------------------------------------------------------------

    \47\ School Nutrition Association. Back to School 2021 Report: A 
Summary of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
    \48\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, Child Nutrition Program Operations Study 
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte 
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021. 
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
---------------------------------------------------------------------------

    Schools already offering all grains as whole grain-rich do not have 
to change their menus as a result of this final rule and are encouraged 
to continue exceeding the minimum regulatory standard. For other 
schools, 7 CFR 210.12(a) allows students, parents and guardians, and 
community members to influence menu planning at the local level; USDA 
encourages the school community to provide ideas on how to incorporate 
more whole grain-rich products in the breakfast and lunch menus at 
their local school. USDA appreciates comments that suggested allowing 
exceptions or waivers to the whole grain-rich requirement on an as-
needed basis; however, USDA's waiver authority under the National 
School Lunch Act does not allow the Secretary to issue individual or 
statewide waivers related to the meal pattern requirements. Therefore, 
USDA does not have the authority to waive the whole grain-rich 
requirement on an as-needed basis.\49\
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    \49\ Temporary authority provided by Congress has permitted USDA 
to issue whole grain-rich exemptions or meal pattern waivers in the 
past; for example, in response to the COVID-19 public health 
emergency. However, USDA does not have the authority to issue these 
waivers without Congressional intervention.
---------------------------------------------------------------------------

    Studies have demonstrated the importance of school meals in 
improving children's overall diets, including their whole grain 
consumption.\50\ \51\ Whole grains are a

[[Page 6997]]

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

    \50\ Biing-Hwan Lin, Joanne F. Guthrie, Travis A. Smith, Dietary 
Guidance and New School Meal Standards: Schoolchildren's Whole Grain 
Consumption Over 1994-2014, American Journal of Preventive Medicine, 
Volume 57, Issue 1, July 2019. Available at: http://www.sciencedirect.com/science/article/pii/S0749379719300546.
    \51\ Aune D, Keum N, Giovannucci E, Fadnes LT, Boffetta P, 
Greenwood DC, Tonstad S, Vatten LJ, Riboli E, Norat T. Whole grain 
consumption and risk of cardiovascular disease, cancer, and all 
cause and cause specific mortality: systematic review and dose-
response meta-analysis of prospective studies. BMJ. June 2016. 
Available at: https://pubmed.ncbi.nlm.nih.gov/27301975/.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.10(c)(2)(iv)(B) and 
220.8(c)(2)(iv)(B), to require that at least 80 percent of the weekly 
grains offered in the NSLP and SBP meet the whole grain-rich criteria 
specified in USDA guidance. USDA invites public comments on the whole 
grain-rich standards discussed in this final rule. These public 
comments will help inform USDA's future rulemaking.

C. Sodium Standards

    To avoid excessive sodium intake in school meals, the 2012 final 
rule established sodium target limits at 7 CFR 210.10(f)(3) and 
220.8(f). These targets were developed through a review of scientific 
literature; consultation with public health professionals, industry, 
and other entities involved in sodium reduction efforts; and 
recommendations from the National Academy of Medicine (formerly the 
Institute of Medicine). Based on this research, the 2012 final rule 
included three transitional targets to gradually reduce sodium intake 
over a 10-year period. The initial target, Sodium Target 1 for NSLP, 
was determined as a 10 percent reduction from the average sodium 
content offered for lunch in SY 2004-2005.\52\ Similarly, Sodium Target 
1 for SBP was determined as a 5 percent reduction from the average 
sodium content offered for breakfast. The Final Sodium Target was 
developed using the 2005 Tolerable Upper Intake Levels (UL) for sodium 
in the Dietary Reference Intakes (DRI) for each age group at the 
current time. The Final Sodium Target would require significant efforts 
by the food industry to reformulate and develop new products lower in 
sodium. Sodium Target 2 represented an intermediate target achievable 
with product reformulations using technology available to industry when 
the 2012 rule was under development.
---------------------------------------------------------------------------

    \52\ Institute of Medicine (IOM 2010). School Meals: Building 
Blocks for Healthy Children. Washington, DC: The National Academies 
Press. Available at: https://fns-prod.azureedge.net/sites/default/files/SchoolMealsIOM.pdf.
---------------------------------------------------------------------------

    Prior to the vacatur of the 2018 final rule, successive legislative 
and administrative action delayed implementation of the sodium 
reduction targets. At the time of the court vacatur, schools were 
required to meet Sodium Target 1; with the court vacatur, Sodium Target 
2 immediately went into effect. However, during the pandemic, USDA 
permitted schools to operate SFSP, which does not have a sodium limit, 
at the end of SY 2019-2020 and in SY 2020-2021. USDA also provided 
nationwide targeted meal pattern waivers through SY 2021-2022, which 
allowed SFAs to serve meals that did not meet the sodium targets, 
throughout that period. As a result, schools have never had to 
implement Sodium Target 2.
2020 Proposed Rule and Public Comments
    The 2020 proposed rule sought to maintain Sodium Target 1 
requirements through SY 2023-2024 (June 30, 2024); to delay required 
compliance with Target 2 requirements to SY 2024-2025 (July 1, 2024); 
and to remove the Final Target. In response to the 2020 proposed rule, 
USDA received 4,710 comments regarding the sodium standards. The 
following table shows tallies of the total and unique comments received 
in response to the proposed sodium standards:

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

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

[[Page 6998]]

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

[[Page 6999]]

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

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

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


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

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

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

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

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

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

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

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

[[Page 7000]]

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

    \58\ U.S. Department of Agriculture and U.S. Department of 
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Available at 
DietaryGuidelines.gov.
---------------------------------------------------------------------------

    USDA acknowledges that sodium targets must be achievable for most 
schools based on product availability, and must allow schools to plan 
appealing meals that encourage consumption and intake of key nutrients 
that are essential for children's growth and development. This final 
rule responds to school food professionals, who are concerned about 
their ability to procure foods that comply with Sodium Target 2 and the 
Final Sodium Target in the near-term. A 2021 survey of school nutrition 
directors found that 62 percent of respondents considered product or 
ingredient availability to be a significant challenge in meeting Sodium 
Target 2, and 75 percent considered it to be a significant challenge in 
meeting the Final Sodium Target. Respondents also expressed concern 
about sodium levels in specific foods and products. For example, when 
citing challenges in meeting Sodium Target 2, 55 percent of respondents 
described naturally occurring sodium in foods such as milk, low-fat 
cheese, and meat as a significant challenge, and 64 percent considered 
sodium levels in condiments to be a significant challenge.\59\ A USDA 
study found that 70 percent of SFAs planned to purchase lower sodium 
products in order to meet sodium standards, suggesting availability of 
products is an important factor in their ability to meet the 
standards.\60\
---------------------------------------------------------------------------

    \59\ School Nutrition Association. Back to School 2021 Report: A 
Summary of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
    \60\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, Child Nutrition Program Operations Study 
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte 
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021. 
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
---------------------------------------------------------------------------

    Looking ahead, USDA recognizes the need for further sodium 
reduction. The changes in this final rule, which are intended as 
transitional standards, will encourage the re-introduction of lower 
sodium foods and meals to students, and give the food industry 
additional time to develop and test lower sodium products that are 
palatable to students. It will allow more time for school food 
professionals to engage in student taste tests, which help SFAs to make 
informed decisions regarding well-accepted food products. A USDA study 
found that obtaining feedback from students via taste testing was the 
most often-employed strategy for product selection and recipe 
refinement, according to SFAs.\61\ Further, about three-quarters of 
school food service directors reported that gaining student acceptance 
of the meal pattern standards was moderately to extremely challenging 
with respect to maintaining student participation; this makes 
additional time for recipe refinement important.\62\
---------------------------------------------------------------------------

    \61\ Successful Approaches to Reduce Sodium in School Meals. 
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf.
    \62\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, Child Nutrition Program Operations Study 
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte 
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
---------------------------------------------------------------------------

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

    \63\ U.S. Department of Health and Human Services. Nutrition and 
Healthy Eating. Available at: https://health.gov/healthypeople/objectives-and-data/browse-objectives/nutrition-and-healthy-eating.
---------------------------------------------------------------------------

    The Dietary Guidelines note that taste preferences for salty foods 
may be established early in life, and that early food preferences can 
influence later food choices.\64\ However, palates can

[[Page 7001]]

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

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

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

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

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

IV. Good Cause

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

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

[[Page 7002]]

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

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

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

V. Summary

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

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

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

[[Page 7003]]

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

Procedural Matters

Executive Order 12866 and 13563

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

Regulatory Impact Analysis

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

[[Page 7004]]

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

Regulatory Flexibility Act

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

Congressional Review Act

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

Unfunded Mandates Reform Act

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

Executive Order 12372

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

Federalism Summary Impact Statement

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

Executive Order 12988, Civil Justice Reform

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

Civil Rights Impact Analysis

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

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

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

[[Page 7005]]

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

Paperwork Reduction Act

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

E-Government Act Compliance

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

List of Subjects

7 CFR Part 210

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

7 CFR Part 215

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

7 CFR Part 220

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

7 CFR Part 226

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

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

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

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

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


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


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

* * * * *
    (c) * * *

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

[[Page 7006]]

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

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

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

* * * * *


Sec.  210.11   [Amended]

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

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

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

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

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


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

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

PART 220--SCHOOL BREAKFAST PROGRAM

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

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


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

[[Page 7007]]

Sec.  220.8   Meal requirements for breakfasts.

* * * * *
    (c) * * *

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

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

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

* * * * *

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

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

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


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


Sec.  226.20   Requirements for meals.

    (a) * * *

[[Page 7008]]

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

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

    (2) * * *

                                     Table 3 to Paragraph (c)(2)--Child and Adult Care Food Program Lunch and Supper
                                               [Select the appropriate components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   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 emergency    Adult participants
                                                                                                                 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,     \1/2\ ounce = 50%......  \3/4\ ounce = 50%......  1 ounce = 50%..........  1 ounce = 50%.........  1 ounce = 50%.
         tree 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\ \8\...........  \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\ \11\.  \1/2\ ounce equivalent.  \1/2\ ounce equivalent.  1 ounce equivalent.....  1 ounce equivalent....  2 ounce equivalents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
\3\ Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free (skim) milk for
  children two through five years old. Must be unflavored or flavored fat-free (skim) or low-fat (1 percent fat or less) milk for children 6 years old
  and older and adults. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of
  fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
\4\ A serving of fluid milk is optional for suppers served to adult participants.

[[Page 7009]]

 
\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\ Refer to FNS guidance for additional information on crediting different types of grains.
\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) * * *

                                          Table 4 to Paragraph (c)(3)--Child and Adult Care Food Program Snack
                                               [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 emergency    Adult participants
                                                                                                                 shelters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid Milk \3\...............  4 fluid ounces.........  4 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..............  \1/8\ cup..............  \1/8\ cup.............  \1/8\ 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\ \9\.  \1/2\ ounce equivalent.  \1/2\ ounce equivalent.  1 ounce equivalent.....  1 ounce equivalent....  1 ounce equivalent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 or flavored fat-free (skim) or low-fat (1 percent fat or less) milk for children 6 years old
  and older and adults. For adult participants, 6 ounces (weight) or \3/4\ cup (volume) of yogurt may be used to meet the equivalent of 8 ounces of
  fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
\4\ 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\ Refer to FNS guidance for additional information on crediting different types of 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).

* * * * *

Cynthia Long,
Administrator, Food and Nutrition Service.

Appendix

    Note: This appendix will not appear in the Code of Regulations.

Regulatory Impact Analysis

Executive Order 12866 and 13563

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

I. Statement of Need

    USDA is finalizing its November 25, 2020, proposed rulemaking 
regarding child nutrition meal pattern requirements. Considering 
comments received, circumstances caused by the COVID-19 pandemic, 
and current dietary science, this final rule will establish 
transitional \72\ standards to support the continued provision of 
nutritious school meals while USDA updates the meal pattern 
standards to more comprehensively reflect the Dietary Guidelines for 
Americans, 2020-2025 and as schools recover from the pandemic. USDA 
will develop updated standards through a new rulemaking for 
implementation in school year (SY) 2024-2025 and beyond, based on 
current nutrition science and public input on how to build on the 
success of school meals in supporting healthy eating and improved 
dietary outcomes. This final rule will implement three transitional 
standards to provide immediate relief to schools during the return 
to traditional school meal service following extended use of COVID-
19 flexibilities. The COVID-19 pandemic impacted the entire Nation, 
but schools faced challenges adjusting to widespread closures, 
online and hybrid learning, and supply chain issues that affected 
the school meal service and the broader school environment.While 
USDA is committed to the service of nutritious meals through its 
programs, USDA also appreciates that the challenges facing schools 
are ongoing, and some schools are not prepared to fully meet the 
milk, whole grains, and sodium requirements from the 2012 rule in SY 
2022-2023.\73\ Many operators will need to reacquaint themselves 
with the 2012 standards after several years of Congressional, 
regulatory, and administrative interventions, followed by two years 
of meal

[[Page 7010]]

pattern flexibilities provided in response to the public health 
emergency. As a result of these interventions and COVID-19 
nationwide waivers, the 2012 whole grain-rich requirement and Sodium 
Target 2 have not been fully implemented, and the 2012 milk 
requirements have not been fully implemented in over five years. To 
meet this need, USDA is taking a two-stage approach to updating the 
school meal nutrition standards: \74\
---------------------------------------------------------------------------

    \72\ As noted in the preamble, standards in this rule will be 
effective only during the interim period before the new standards 
are promulgated. USDA intends the new rulemaking to be completed in 
time for SY2024-2025, but in the unlikely event of a delay, the 
standards in this final rule would remain in effect until such new 
rulemaking is completed. Since USDA intends to establish new meal 
pattern requirements for SY 2024-2025 and beyond, the standards in 
this will be referenced to as ``transitional'' in this rule.
    \73\ Federal Register: Nutrition Standards in the National 
School Lunch and School Breakfast Programs.
    \74\ As discussed in the preamble to the final rule, USDA 
considers the final rule to be a logical outgrowth of the proposed 
rule. However, even without the proposed rule and logical outgrowth, 
USDA determines there is good cause to publish these transitional 
standards as an interim final rule and is requesting comments on the 
transitional standards. Publication of these transitional standards 
by January 2022 is necessary for SY 2022-2023. Schools need to know 
the meal pattern requirements to procure the appropriate foods.
---------------------------------------------------------------------------

    1. This final rule, which will establish standards for milk, 
whole grains, and sodium, is the first stage. These standards will 
respond to the needs of schools as they recover from the challenges 
of COVID-19, while also taking measured steps towards improving 
nutritional quality of meals offered.
    2. USDA intends to issue a proposed rule in fall 2022 which will 
address school meal nutrition standards for SY 2024-2025 and beyond. 
The new rulemaking will advance permanent standards that further 
demonstrate USDA's commitment to nutritious school meals and that 
are consistent with the goals of the Dietary Guidelines for 
Americans, 2020-2025 and nutrition science, as required by the 
National School Lunch Act.
    The revised standards in this final rule are intended to be 
transitional, and apply only to the milk, whole grains, and sodium 
requirements. This final rule:
     Allows NSLP and SBP operators and some CACFP and SMP 
providers to offer flavored, low-fat milk.
     Requires at least 80 percent of the weekly grains in 
the school lunch and breakfast menus to be whole grain-rich.
     Maintains Sodium Target 1 for NSLP and SBP through SY 
2022-2023, as well as for SBP in SY 2023-2024, and implements Sodium 
Target 1A for NSLP no later than SY 2023-2024.
    Schools that can meet or exceed these transitional standards do 
not have to change their menus because of this final rule. USDA 
invites the public to comment on the content of this final rule, as 
well as provide comments to inform the future rulemaking. This 
includes comments that may assist in a comprehensive assessment of 
impacts of the areas addressed in this rule.

II. Comments

    USDA received four substantive comments on the economic summary 
from the proposed rule. All comments expressed concern that a full 
analysis of long-term health impacts of the proposed changes was not 
included. Respondents also voiced concerns about USDA not engaging 
with medical stakeholders to fully understand the health impacts of 
changing the 2012 standards for milk, whole grains, and sodium. 
There was particular concern with the proposed sodium changes.
    USDA Response: USDA recognizes the need for updated standards to 
align with the goals of the Dietary Guidelines for Americans, 2020-
2025. The two-stage regulatory process will allow time for USDA to 
engage with a variety of medical stakeholders. This final rule will 
serve as a transition to updated nutrition standards; a new 
rulemaking will include input from various stakeholders through 
public comments to assist in an in-depth assessment of potential 
impacts. Additionally, in SY 2023-2024, this rule will implement 
Sodium Target 1A for NSLP, which will support schools with a gradual 
transition to lower-sodium meals. This target is a 10 percent 
reduction from Sodium Target 1 for NSLP and represents an achievable 
goal while acknowledging the importance of gradual sodium reduction. 
A variety of factors, including implementation of FDA's voluntary 
reduction targets, developments in food science, and feedback from 
State and local stakeholders, will inform USDA's decisions regarding 
sodium moving forward.\75\ USDA also increased the percentage of 
whole grain-rich offerings required from 50 percent in the proposed 
rule to 80 percent in this final rule. This recognizes the 
importance of whole grains in a nutritious diet while also 
acknowledging the near-term challenges of offering all whole grain-
rich items.
---------------------------------------------------------------------------

    \75\ To learn more about the U.S. Food and Drug Administration's 
efforts to lower sodium in the U.S. food supply, visit: www.fda.gov/SodiumReduction.
---------------------------------------------------------------------------

III. Summary of Impacts

    The estimated impacts of this rule reflect shifts in food 
purchases and labor resources incurred by schools for school meal 
production. There are no additional Federal revenues provided in 
this rule and schools will need to make menu modifications within 
current resources. The impacts of these shifts are quantified for 
this analysis to demonstrate the potential food and labor costs to 
schools as well as markets due to changes in purchasing patterns. 
The analyses provide the impact to schools of moving straight to the 
2012 standards, which absent this rule would go into effect in SY 
2022-2023 as well as the impact to schools of moving to the 
standards in this rule from current operations.
    USDA estimates this final rule will save \76\ schools $0.15 cent 
per meal or $1.1 billion annually compared to directly moving to the 
2012 standards for milk, whole grains, and sodium in SY 2022-
2023.\77\ Absent this rule it is estimated to cost $1.3 billion 
annually or $0.18 per meal for schools to move immediately to the 
2012 milk, whole grains, and sodium requirements. The costs to 
schools are due to increased costs to procure entirely whole grain-
rich offerings as well as increases in both food and labor costs to 
support scratch cooking to immediately comply with the Sodium Final 
Target.
---------------------------------------------------------------------------

    \76\ Except where noted in the participation impacts, the terms 
``costs'' and ``savings'' are used in this analysis to describe the 
school level shifts in food purchases and labor associated with 
school meal production.
    \77\ The 2012 standards do not permit flavored low-fat milk, 
require all grains to be whole grain-rich, and require schools to 
meet the Sodium Final Target in SY 2022-2023.
---------------------------------------------------------------------------

    Currently in SY 2021-2022, schools unable to meet the NSLP and 
SBP standards due to the pandemic can request targeted meal pattern 
waivers from their State agency, including for the milk, whole 
grains, and sodium requirements. Schools will need to transition 
from operating under the COVID-19 waivers to meeting the milk, whole 
grain and sodium requirements in this rule starting in SY 2022-2023. 
Relative to the current school year operations, this rule is 
estimated to potentially increase costs to schools by $187 million 
annually or about $0.03 per meal.\78\ Most of these estimated costs 
are due to the requirement to offer at least 80 percent of grain 
offerings as whole grain-rich and for some schools that still need 
to meet Sodium Target 1 and Sodium Target 1A. USDA estimates whole 
grain-rich items to be more expensive than enriched items as schools 
shift to purchase more whole grain-rich items. Estimated costs 
associated with sodium are a result of increases in food and labor 
costs for schools that still need to meet Sodium Target 1 and Target 
1A. Costs to offer low fat flavored milk as an option are due to low 
fat flavored milk being slightly more expensive than fat free 
flavored varieties.
---------------------------------------------------------------------------

    \78\ If all flavored fat-free milk is substituted with flavored 
low-fat milk, and schools regressed in whole grain-rich progress 
compared to SY 2014-2015, this rule is estimated to cost $665 
million the first year or $0.09 more per meal.
    \79\ The 2012 standards do not permit low fat flavored milk 
which USDA estimates to be slightly more expensive than fat free 
flavored varieties. This slightly reduces the savings generated due 
to this rule as this rule permits low fat flavored. Voluntary 
incurring of a cost is likely associated with benefits that are 
difficult to quantify--potentially, in this case, including reduced 
food waste.
---------------------------------------------------------------------------

    The $0.15 per meal savings provided by this rule is the cost of 
$0.18 per meal to return to the 2012 standards minus the $0.03 per 
meal costs associated with the requirements in this rule.\79\ The 
changes in this rule are achievable and realistic for schools and 
recognize the need for strong nutrition standards in school meals. 
USDA intends to have updated regulations that further align school 
meal nutrition standards with the goals of the Dietary Guidelines 
for Americans, 2020-2025 in place by SY 2024-2025. This analysis 
provides five-year cost streams to project potential impacts.

[[Page 7011]]



                                                    Table 1--Stream of Quantifiable Costs to Schools
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Fiscal Year  ($ millions)
                                                         -----------------------------------------------------------------------------------------------
                                                               2022            2023            2024            2025            2026            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   NOMINAL COST STREAM
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK....................................................              $2             $13             $13             $14             $14             $56
80% WHOLE GRAIN-RICH....................................             -48            -303            -309            -315            -321          -1,296
SODIUM TARGET 1 AND 1A..................................            -125            -780            -795            -811            -827          -3,338
                                                         -----------------------------------------------------------------------------------------------
    TOTAL...............................................            -171          -1,069          -1,090          -1,112          -1,134          -4,577
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 DISCOUNTED COST STREAM
--------------------------------------------------------------------------------------------------------------------------------------------------------
3 PERCENT...............................................            -171          -1,038          -1,028          -1,018          -1,008          -4,263
7 PERCENT...............................................            -171            -999            -952            -908            -865          -3,896
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As required by OMB Circular A-4, in Table 2 below, the 
Department has prepared an accounting statement showing the 
annualized estimates of benefits, costs, and transfers associated 
with the provisions of this final rule. In the next section, an 
impact analysis is provided of each change.

                                          Table 2--Accounting Statement
----------------------------------------------------------------------------------------------------------------
                                                                               Discount rate
                                          Range       Estimate   Year dollar     (percent)       Period covered
----------------------------------------------------------------------------------------------------------------
Benefits:
Qualitative: Provides achievable updates to the milk, whole grain-rich, and sodium standards to transition from
 COVID-19 operations.
----------------------------------------------------------------------------------------------------------------
Annualized Monetized (millions/year).         n.a.         n.a.         n.a.             n.a.      FY 2022-2026
----------------------------------------------------------------------------------------------------------------
Costs incurred by schools:
Qualitative: This final rule provides updates to the milk, whole grain-rich and sodium requirements for schools.
 The changes in this rule are achievable standards as schools move from COVID-19 operations to typical meal
 service. The estimated savings are generated from schools moving to the standards in this rule instead of
 moving to the 2012 meal standards. The estimated potential impacts are provided to quantify the changes in
 purchasing patterns and labor hours to meet these requirements.
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($millions/year)        Total        -$830         2020                7      FY 2022-2026
                                                           -877         2020                3
----------------------------------------------------------------------------------------------------------------
Federal costs:
Qualitative and Quantitative: There are no estimated change in Federal reimbursement levels associated with this
 rule. It is assumed participation will not measurably change from the baseline approximated by the status quo.
 However, if this rule is not issued then (reflecting the same analytic baseline against which the school cost
 savings, above, are estimated) there is an estimated reduction due to schools leaving the NSLP and SBP due to
 difficulties returning to the 2012 standards. These figures are presented in the impact analysis.
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($millions/year)         n.a.         n.a.         n.a.             n.a.      FY 2022-2026
----------------------------------------------------------------------------------------------------------------

IV. Section by Section Analysis

    This final rule provides standards related to milk, whole 
grains, and sodium that will set clear programmatic parameters as 
schools return to traditional meal service after over two years of 
serving meals under pandemic conditions. The Administration plans to 
propose new standards later in the year, after a robust engagement 
process with program stakeholders. Absent this rule, schools must 
return to the milk, whole grains, and sodium regulations from the 
2012 rule, which:
     Allowed flavoring only in fat-free milk in the NSLP and 
SBP.
     Required that at least half of the grains offered in 
the NSLP be whole grain-rich (meaning the grain product contains at 
least 50 percent whole grains and the remaining grain content of the 
product must be enriched) in SY 2012-2013 and one year later in the 
SBP; and required that effective SY 2014-2015, all grains offered in 
both programs be whole grain-rich; and
     Required schools participating in the NSLP and SBP to 
reduce the sodium content of meals offered on average over the 
school week by meeting progressively lower sodium targets over a 10-
year period. The 2012 rule directed SFAs to meet Sodium Target 1 by 
SY 2014-2015, Sodium Target 2 by SY 2017-2018, and the Sodium Final 
Target by SY 2022-2023.
    As noted earlier, full implementation of the 2012 meal pattern 
requirements for milk, whole grains, and sodium has been delayed due 
to legislative, regulatory, and administrative actions, and the 
COVID-19 pandemic. This section assesses the impact of this rule as 
well as the impact absent this rule, which would restore the above 
2012 standards for milk, whole grains, and sodium.

A. Key Assumptions

    USDA conducted a comprehensive study on the school meal programs 
in SY 2014-2015 called the School Nutrition and Meal Cost Study. 
Data from this study are the most current available on the status of 
schools meeting the nutrition standards.\80\ The following impact 
analyses use SY 2014-2015 data as applicable and more recent 
information to make assumptions to estimate the status. 
Additionally, data on the value of school district acquisitions are 
from the School Food Purchase Study reflecting SY 2009-2010. This is 
the most current school district food acquisition data available and

[[Page 7012]]

figures from this study are inflated to reflect current prices. 
However, the distribution of the types of foods school districts 
purchase may have shifted during the implementation of the 2012 
standards and more recently due to COVID-19 operations.
---------------------------------------------------------------------------

    \80\ USDA started to collect data for the next iteration of the 
School Nutrition Meal Cost study which is the comprehensive 
assessment of the school meal program in SY 2019-2020. Data 
collection was stopped due to COVID-19 pandemic and the resulting 
school closures. The study is now planned to collect data in SY 
2022-2023.
---------------------------------------------------------------------------

    The analyses assume Congress will not override these final 
standards for the milk, whole grains, and sodium requirements in the 
near-term. The base analyses also assume that after two and one-half 
years of serving meals through COVID-19 waivers, school meal 
participation will normalize to be consistent with service levels in 
FY 2019. Simulation of different participation levels are presented 
in the Uncertainty Section.
    This analysis also assumes that due to the plan to revise these 
standards via another rulemaking that there will not be any 
measurable health or nutritional impact of the changes in this rule. 
This rule builds on the major achievements schools already made 
improving school meals to support healthy diets for school children. 
Schools have made significant progress towards healthier school 
meals. Between SY 2009-2010 and SY 2014-2015, ``Healthy Eating 
Index-2010'' (HEI-2010) scores of diet quality for NSLP and SBP 
increased significantly. Over this period, the mean HEI-2010 score 
for NSLP lunches increased from 57.9 to 81.5 out of a possible 100 
points, and the mean HEI-2010 score for SBP breakfasts increased 
from 49.6 to 71.3 out of a possible 100 points. These significant 
increases in HEI are driven by the full suite of the 2012 standards 
including higher scores for fruits and vegetables and reduction in 
empty calories.
    HEI-2010 scores also greatly improved for whole grains. In SY 
2014-2015, the HEI-2010 component score 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). 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 timeframe.\81\
---------------------------------------------------------------------------

    \81\ These improvements were made with on average schools 
offering 70 percent of grain offerings as whole grain-rich. In SY 
2014-2015, one quarter (27 percent) of weekly lunch menus met the 
new requirement, which was first implemented in SY 2014-2015. The 
majority (87 percent) of weekly lunch menus met the requirements 
from the prior school year--that at least 50 percent of grains be 
whole grain-rich.
---------------------------------------------------------------------------

    In SY 2014-2015, the HEI-2010 score for sodium improved 
significantly from a score of 10 percent of the maximum score to 27 
percent of the maximum score, which reflects the majority of schools 
meeting Sodium Target 1 in the first-year schools were required to 
meet Sodium Target 1. From SY 2009-2010 to SY 2014-2015, the average 
sodium content of NSLP lunches decreased between 15 percent and 21 
percent and SBP breakfasts decreased between 10 percent to 15 
percent. By comparison, from SY 2004-2005 to SY 2009-2010, sodium 
levels for NSLP lunches and SBP breakfasts decreased by 2 percent 
and 11 percent, respectively.\82\
---------------------------------------------------------------------------

    \82\ 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.
---------------------------------------------------------------------------

    While the HEI-2010 scores for meals offered significantly 
improved after implementation of the 2012 meal standards, the HEI-
2010 scores for the lunches and breakfasts consumed by students 
participating in NSLP and SBP in SY 2014-2015 were significantly 
higher than nonparticipants. Students who ate a school lunch were 
more likely to consume milk, fruits, and vegetables and less likely 
to consume desserts, snack items, and non-milk beverages at lunch 
than students who ate lunch from home or other places. NLSP lunches 
consumed had significantly higher HEI-2010 scores compared to 
lunches consumed from home or other places (80 percent versus 65 
percent out of a possible 100 points). The lunches consumed by NSLP 
participants received significantly higher scores than the lunches 
consumed by matched nonparticipants for total vegetables (52 percent 
of the maximum score versus 38 percent), whole grains (100 percent 
versus 63 percent), and dairy (100 percent versus 69 percent). 
Additionally, lunches consumed by NSLP participants were lower in 
calories, total fat, and saturated fat than lunches consumed by 
matched nonparticipants. Breakfasts consumed by SBP participants 
contained significantly larger amounts of fruit and whole grains 
than breakfasts consumed by matched nonparticipants and had a 
significantly higher HEI-2010 score than breakfasts consumed by 
matched nonparticipants (66.1 percent versus 58.9 percent).\83\ 
School meals serve as a critical source of nutrition for the 
nation's children especially for children in low-income 
households.\84\
---------------------------------------------------------------------------

    \83\ 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.
    \84\ A higher percentage of income-eligible NSLP participants 
consumed any items from the vegetables, fruit, milk products, and 
mixed dish categories compared with income-eligible nonparticipants: 
Unreleased USDA report using 2011-2016 National Health and Nutrition 
Examination Survey (NHANES) data to examine the relationship between 
estimated program participation, diet quality, indicators of 
nutrition and health, food consumption patterns, and nutrient 
intakes.
---------------------------------------------------------------------------

    The HEI measures alignment with the Dietary Guidelines of 
Americans, which are set based on nutrition recommendations and 
evidence of health benefits. Research has shown that closer 
alignment with the Dietary Guidelines reduces the risk of obesity 
related chronic diseases.\85\ The improvements in HEI scores further 
demonstrate the extension of the current health benefits realized by 
the 2012 standards to date and the importance of starting healthy 
eating habits early.
---------------------------------------------------------------------------

    \85\ Dietary Guidelines for Americans, 2020-2025.
---------------------------------------------------------------------------

    Early in the COVID-19 pandemic, many schools transitioned to 
serving meals under the Summer Food Service Program, which operates 
under a separate, simpler meal pattern. In SY 2021-2022, schools 
were still able to offer all meals free, but through the Seamless 
Summer Option, which uses the NSLP and SBP meal patterns. This 
transitioned schools back to the healthier school meals that are 
traditionally offered during the school year. However, supply chain 
disruptions created additional challenges, and many schools needed 
waivers for specific meal pattern requirements, including milk, 
whole grains, and sodium. It is expected that the overall positive 
nutritional impacts of the 2012 meal standards will continue to 
benefit school children as this rule makes achievable adjustments to 
strengthen the meal standards while balancing the need to support 
schools during transition from COVID-19 operations and supply chain 
disruptions. This rule builds on the significant progress schools 
already made in implementing the 2012 standards.
    Absent this rule, schools would be required to meet the 2012 
standards, which would not permit flavored low-fat milk, require all 
grains to be whole grain-rich, and require schools to meet the 
Sodium Final Target in SY 2022-2023. While these requirements would 
further nutritional improvements in school meals, many schools would 
not be able to fully meet these requirements in the near term. This 
is particularly true for the Sodium Final Target. The time needed to 
successfully lower sodium levels in school meals will vary 
considerably. For certain products, lowering sodium levels in school 
meals may be quicker and for other products it may require more 
time. This transitional rule will give schools more time to work to 
identify student preferences through combination of practices 
including taste tests, tailoring menu options, promoting healthy 
choices, and making incremental menu changes.\86\
---------------------------------------------------------------------------

    \86\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A. 
Glenn, M.E., Burke, S. & Connor, P. (2019). Successful Approaches to 
Reduce Sodium in School Meals Final Report. Prepared by 2M Research 
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S. 
Department of Agriculture, Food and Nutrition Service.
---------------------------------------------------------------------------

    Implementing the Sodium Final Target would require a significant 
reduction over an extremely short period of time, which would not be 
achievable for both industry and schools. The 2012 sodium reduction 
timeline was never fully implemented due to a long history of 
administrative and legislative actions that delayed implementation 
of Sodium Target 2. It is unrealistic to expect full implementation 
of the 2012 standards for milk, whole grains, and sodium and the 
associated nutritional improvement to be realized in SY 2022-2023 
due to the significant challenges facing schools and industry in the 
near term. As USDA commences subsequent rulemaking to propose and 
finalize long-term standards, the nutritional impacts resulting from 
changes to the milk, whole grains, and sodium requirements will be 
reexamined and included in the process. USDA welcomes any

[[Page 7013]]

additional information that should be considered on the nutritional 
impacts of the milk, whole grains, and sodium requirements in this 
rule.

B. Impacts

Milk Standard

    In this final rule, USDA allows NSLP and SBP operators the 
option to offer flavored low-fat milk and requires unflavored milk 
to be offered at each meal service. This flavored milk standard will 
be extended to beverages for sale during the school day and will 
also apply in the SMP and CACFP for participants ages 6 years and 
older. The decision to allow flavored low-fat milk reflects concerns 
about declining milk consumption and the importance of the key 
nutrients provided by milk for school-aged children.\87\ 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. This final rule does not change the 
upper caloric and fat limits specified in the 2012 rule or the 
requirement to offer a variety (at least two choices) of fluid milk 
in the NSLP and SBP.
---------------------------------------------------------------------------

    \87\ https://www.gpo.gov/fdsys/pkg/FR-2017-11-30/pdf/2017-25799.pdf.
---------------------------------------------------------------------------

    Unflavored low-fat and flavored fat-free milks were the most 
frequently offered varieties on daily menus in SY 2014-2015. The 
change in this rule may result in SFAs substituting flavored fat-
free milk varieties with flavored low-fat varieties. About 91 
percent of daily NSLP menus and 76 percent of daily SBP menus 
offered flavored fat-free milk.\88\ The cost for eight ounces of 
flavored low-fat milk is on average about $0.02 higher than flavored 
fat-free milk.\89\ If across all NSLP and SBP menus, all flavored 
low-fat milk was substituted with flavored fat-free milk, it would 
cost about $126 million more a year. Not all schools will want to 
make this substitution as the change must be made within current 
resources and caloric and fat limits. Based on the most current data 
available, about 8 percent of school districts requested an 
exemption to serve flavored low-fat milk.\90\ Using the average 
number of children per school district,\91\ it is estimated that 
about 9 percent of daily NSLP and SBP menus include flavored low-fat 
milk through exemptions or flexibilities. USDA estimates this to be 
about $13 million more a year in the value spent on milk.
---------------------------------------------------------------------------

    \88\ 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.
    \89\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Research and Analysis, School Food Purchase Study-III, by 
Nick Young et al. Project Officer: John R. Endahl, Alexandria, VA: 
March 2012.
    \90\ Based on unpublished USDA data: Child Nutrition Program 
Operations study year 3.
    \91\ There were no significant characteristics of these school 
district suggesting that smaller or larger districts requesting the 
exemption. This analysis assumes that about 57 percent of children 
enrolled in the 8 percent of districts requesting an exemption 
participate in the NSLP and about 30 percent participate in the SBP.

      Table 3--Estimated Impact of Purchasing Low Fat Flavored Milk
                               [Millions]
------------------------------------------------------------------------
                                                             Estimated
                   Substitution level                       annual cost
------------------------------------------------------------------------
MAXIMUM--REPLACE ALL FAT FREE FLAVORED WITH LOW FAT                 $126
 FLAVORED...............................................
MINIMUM--9 PERCENT OF DAILY MENUS REPLACED FAT FREE WITH              13
 LOW FAT FLAVORED (BASED ON EXEMPTION DATA).............
------------------------------------------------------------------------

    Most milk producers likely supply both varieties, which 
minimizes actual industry impacts. The additional cost of flavored 
low-fat milk may result in purchasing pattern shifts in school 
districts choosing to serve flavored low-fat milk. USDA estimates 
that this final rule will increase the milk cost and/or transfers 
from anywhere between $13 million and $126 million. Absent this 
rule, there would be a reduction in milk costs of the same range due 
to the restriction on offering flavored low-fat milk.\92\
---------------------------------------------------------------------------

    \92\ Voluntary incurring of a cost is likely associated with 
benefits that are difficult to quantify--potentially, in this case, 
including reduced food waste.
---------------------------------------------------------------------------

Whole Grain-Rich Standard

    Starting in SY 2022-2023, this final rule will require that at 
least 80 percent of the 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. The 2012 final rule 
required all grains to be whole grain-rich by SY 2014-2015; however, 
this requirement was never fully implemented due to a long history 
of administrative and legislative actions, including exemptions that 
began in the first year of implementation. 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 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 offered at least 50 percent of the grains as whole grain-
rich. Despite some challenges, schools have made considerable 
progress offering whole grain-rich products. On average, in SY 2014-
2015, 70 percent of the weekly menus offered at least 80 percent of 
the grain items as whole grain-rich for both breakfast and 
lunch.\93\ This rule recognizes this progress and the nutritional 
importance of whole grains, while still providing support for 
schools facing challenges serving all grain items as whole grain-
rich.
---------------------------------------------------------------------------

    \93\ Based on an internal USDA analysis using 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.
---------------------------------------------------------------------------

    This analysis is based on the price difference between whole 
grain-rich items and enriched grain items to calculate the impact 
associated with changing the whole grain-rich requirement. The 2012 
final meal standards rule Regulatory Impact Analysis estimated that 
whole grain-rich items cost 34 percent more than enriched grain 
items.\94\ While this is an older analysis, it is still the most 
current available. However, there are other more recent data points 
that suggest that this price difference is likely lower due to wider 
availability of whole grain-rich items. Over 85 percent of the grain 
offerings in NSLP and SBP in SY 2014-2015 were whole grain-rich. 
This suggests most items are whole grain-rich, but certain grains 
may be more difficult to find in acceptable whole grain-rich form, 
including commonly offered items such as croutons, biscuits, and 
rolls.\95\ Additionally, during the period in which schools needed 
an exemption if they were unable to meet the requirement to offer 
all grains as whole grain-rich, use of the exemption was relatively 
low. According to an unpublished USDA study, as of SY 2017-2018, 28 
percent of SFAs requested an exemption for the whole grain-rich 
requirement in at least one school year. In SY 2017-2018, 24 percent 
requested an exemption. The availability of whole grain-rich 
products through USDA Foods and the commercial market has increased 
significantly since the implementation of the 2012 meal standards. 
Additionally, there was no consistent significant difference in the 
cost per meal between schools that offered at least 50 percent whole 
grain-rich items and schools that offered under 50 percent. There 
was also no significant difference in the meal

[[Page 7014]]

costs for schools meeting the overall grain quantity 
requirement.\96\
---------------------------------------------------------------------------

    \94\ Footnote in the CACFP rule provides the citation for the 
34% as it was based on an internal USDA analysis and it is not in 
the published 2012 meal standards rule https://www.regulations.gov/document/FNS-2011-0029-4304.
    \95\ These were the items that school districts requested 
exemptions to serve based on informal USDA data.
    \96\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, School Nutrition and Meal Cost Study, 
Final Report Volume 3: School Meal Costs and Revenues by Christopher 
Logan, Vinh Tran, Maria Boyle, Ayesha Enver, Matthew Zeidenberg, and 
Michele Mendelson. Project Officer: John Endahl. Alexandria, VA: 
April 2019.
---------------------------------------------------------------------------

    For these reasons, this analysis estimates a price increase of 
15 percent for whole grain-rich items over enriched grain items to 
estimate the impact of serving more whole grain-rich items. Using 
data from the SY 2009-2010 School Food Purchase Study III, which 
collects data on the value of school district food acquisitions,\97\ 
a weighted average price per ounce of grains is calculated. This 
price per ounce is then adjusted by the Producer Price Index for 
grains to account for inflation since these data were collected. The 
adjusted price per ounce is $0.10. As noted, this analysis assumes 
whole grain-rich items are estimated to cost 15 percent more than 
the estimated $0.10 per ounce of grain. This means that it costs 
$0.015 more on average for an ounce of whole grain-rich grains 
compared to an ounce of enriched grains.
---------------------------------------------------------------------------

    \97\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Research and Analysis, School Food Purchase Study-III, by 
Nick Young et al. Project Officer: John R. Endahl, Alexandria, VA: 
March 2012.

                  Table 4--Price per Pound for Grain Items From School Food Purchase Study III
----------------------------------------------------------------------------------------------------------------
                                                      $ Value         Pounds         Price per
                Grain item group                     purchased       purchased         pound       Price per oz
----------------------------------------------------------------------------------------------------------------
BREAD & ROLLS...................................    $465,505,505     406,629,005         $1.1448         $0.0715
PASTA & NOODLES.................................      22,795,477      24,500,911          0.9304          0.0581
RICE, BARLEY & OTHER GRAINS.....................      17,626,092      18,115,017          0.9730          0.0608
                                                 ---------------------------------------------------------------
    TOTAL WEIGHTED..............................     505,927,074     449,244,933          1.1262          0.0704
----------------------------------------------------------------------------------------------------------------

    Schools must offer a minimum quantity of grains daily and weekly 
for both lunch and breakfast; these requirements vary for the three 
age/grade groups. For the 9-12 age/grade group, the minimum quantity 
of grain that must be offered per week is 10 oz equivalent, which is 
the sum of the daily quantity requirement of 2 oz equivalents. For 
the K-5 and 6-8 age/grade groups, the required weekly quantity is 
higher than the daily totals summed across the week.\98\ The average 
weighted daily quantity of grains necessary to meet the average 
weekly requirement across all age/grade groups and NSLP and SBP is 
1.68 oz equivalents (or 8.44 oz equivalents across the week). The 
1.68 oz equivalents of whole grain-rich grains a day is estimated to 
cost $0.025 (1.68 x $0.015) more than the cost of 1.68 oz 
equivalents of enriched grain items. This price difference applied 
to the number of additional grain oz equivalents that schools will 
need to offer as whole grain-rich to meet the requirements of this 
final rule, multiplied by the number of meals, provides an estimated 
value of the cost to transition more offerings to whole grain-rich.
---------------------------------------------------------------------------

    \98\ This assumes a 5-day school week and the daily quantity for 
K-5 and 6-8 age/grade groups is 1 oz equivalents and the weekly 
requirement is 8 oz equivalents for NSLP and 7 oz equivalents for 
SBP.

        Table 5--Ounce Equivalents at Each Whole Grain-Rich Level
------------------------------------------------------------------------
                                                           Total weekly
                                                               ounce
         Whole grain-rich requirement percentage            equivalents
                                                             required
------------------------------------------------------------------------
100 PERCENT (2012 REQUIREMENT)..........................            8.44
80 PERCENT (THIS FINAL RULE)............................            6.75
50 PERCENT (PRIOR REQUIREMENT)..........................            4.22
75 PERCENT (ESTIMATED CURRENT LEVEL)....................            6.33
------------------------------------------------------------------------

    The range of costs are built on two separate sets of 
assumptions. The high estimated cost level assumes that because the 
2012 whole grain-rich requirement was never fully implemented, all 
schools moved back to the requirement to offer half of grains as 
whole grain-rich which was the requirement in the proposed rule. 
This is likely an overestimate due to the significant progress 
schools and the food industry have made since SY 2012-2013. The low 
estimated scenario, which is the expected scenario, uses the 
information to-date on whole grain-rich progress and assumes that on 
average schools are currently offering 75 percent grain items as 
whole grain-rich. This uses the information that 70 percent of 
weekly menus at schools were already offering at least 80 percent of 
grain items as whole grain-rich in SY 2014-2015.
    These estimated costs may be incurred by the school district 
and/or within the grain market in the form of purchases of 
additional whole grain-rich varieties. Schools may shift away from 
items that are not preferred as whole grain-rich and substituting 
different whole grain-rich items. This could potentially reduce 
variety and impact the manufacturers of these items, possibly 
resulting in loss of some of the school market or increased costs to 
develop successful whole grain-rich options.
    Table 6 shows the costs associated with moving fully to 2012 
standard that all grains are whole grain-rich and moving to the 80 
percent threshold in this rule from both estimated starting points 
(75 percent and 50 percent of grains as whole grain-rich). These are 
the costs if this rule is not issued, and schools must return to the 
2012 standard of exclusively offering whole grain-rich items. The 
costs associated with moving to the 80 percent threshold are the 
costs of this rule.

      Table 6--Estimated Costs of Increasing Whole Grain-Rich Items
                               [Millions]
------------------------------------------------------------------------
                              Expected annual cost    High annual cost
Whole grain-rich requirement     (increasing from   (increasing from  50
                                 75 percent WGR)        percent WGR)
------------------------------------------------------------------------
INCREASING TO 80 PERCENT....                   $76                  $454

[[Page 7015]]

 
INCREASING TO 100 PERCENT...                   379                   757
------------------------------------------------------------------------

    Without this final rule, schools would be required to meet the 
2012 requirement to offer all grains as whole grain-rich. Compared 
to the 2012 requirement, this rule is estimated to save $303 million 
annually by instead requiring 80 percent of grains offered to be 
whole grain-rich.

Sodium Standard

    The 2012 Final Rule directed schools to meet Sodium Target 1 by 
SY 2014-2015, Sodium Target 2 by SY 2017-2018, and the Sodium Final 
Target by SY 2022-2023. This rule extends Sodium Target 1 through 
the end of SY 2022-2023 for both NSLP and SBP and requires 
compliance with Sodium Target 1A for NSLP starting in SY 2023-2024. 
In the absence of this rule, schools would be required to implement 
the Sodium Final Target for both NSLP and SBP 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.\99\ According to the 
USDA study on Successful Approaches to Reduce Sodium in School 
Meals,\100\ schools, Food Service Management Companies, and 
manufacturers noted that it was possible to meet Target 1 with foods 
already developed but to implement the subsequent targets, schools 
will likely need to move to more scratch cooking. Almost 80 percent 
of schools do some scratch cooking and 70 percent of schools do on-
site preparation, where the school prepares meals on-site for 
serving only at that school.\101\ This suggests that schools in 
general have the structure to conduct some scratch cooking, but that 
reductions in sodium may result in more labor-intensive food 
preparations and/or additional infrastructure needs.
---------------------------------------------------------------------------

    \99\ 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.
    \100\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A. 
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to 
Reduce Sodium in School Meals Final Report. Prepared by 2M Research 
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S. 
Department of Agriculture, Food and Nutrition Service.
    \101\ Standing, Kim, Joe Gasper, Jamee Riley, Laurie May, Frank 
Bennici, Adam Chu, and Sujata Dixit-Joshi. Special Nutrition Program 
Operations Study: State and School Food Authority Policies and 
Practices for School Meals Programs School Year 2012-13. Project 
Officer: John R. Endahl. Prepared by Westat for the U.S. Department 
of Agriculture, Food and Nutrition Service, October 2016.
---------------------------------------------------------------------------

    There was no significant difference between the cost per meal 
for schools that were meeting Target 1 and those that were not 
meeting Target 1.\102\ Given that most schools were able to meet 
Target 1 with available food or with few changes to meal-
preparation, this finding is not surprising, but may not be 
sustained as further sodium Targets are implemented. The need for 
more labor-intensive food preparation, including scratch cooking, 
would likely continue until lower sodium products are more readily 
available in the school food market, which will take time.
---------------------------------------------------------------------------

    \102\ U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, School Nutrition and Meal Cost 
Study, Final Report Volume 3: School Meal Costs and Revenues by 
Christopher Logan, Vinh Tran, Maria Boyle,Ayesha Enver, Matthew 
Zeidenberg, and Michele Mendelson. Project Officer: John Endahl. 
Alexandria, VA: April 2019.
---------------------------------------------------------------------------

    Industry members reported in the USDA study on Successful 
Approaches to Reduce Sodium in School Meals that to be successful in 
reducing sodium, taste tests with students are critical before mass 
production. Industry reported that this process can take time and if 
not done correctly may result in increased plate waste or students 
choosing not to participate in school meals. If school meals taste 
markedly different than foods that students eat outside of school, 
which may have much more sodium, it can be difficult to gain their 
acceptance of the foods served in schools.
    About three-quarters of school food service directors reported 
in SY 2016-2017 that gaining student acceptance of the new standards 
was moderately to extremely challenging with respect to maintaining 
student participation.\103\ Returning to the 2012 standards in SY 
2022-2023 will not allow for sufficient time for industry to 
continue to successfully reduce sodium levels in products for the 
school market.
---------------------------------------------------------------------------

    \103\ U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, Child Nutrition Program 
Operations Study (CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, 
and Charlotte Cabili. Project Officer: Holly Figueroa. Alexandria, 
VA: June 2021.
---------------------------------------------------------------------------

    The Final Sodium Target in the 2012 standards was meant to be 
achieved over a period of ten years while meeting two interim sodium 
Targets. Sodium Target 2 was a 20 percent reduction from Sodium 
Target 1. The Sodium Final Target was another 25 percent reduction 
from Sodium Target 2 and a 40 percent reduction from Sodium Target 
1.\104\ Like the 2012 whole grain-rich requirement, schools were 
never required to fully adhere to the 2012 sodium reduction timeline 
due to a long history of administrative and legislative actions. The 
immediacy of going straight to the Sodium Final Target when the 
gradual sodium reduction did not occur as intended, compounded by 
the COVID-19 pandemic, will likely be extremely difficult due to the 
drastic reduction required over a short period of time. Meeting the 
Sodium Final Target would be a 35 percent drop on average for NSLP 
and SBP from sodium levels in prepared meals in SY 2014-2015.\105\
---------------------------------------------------------------------------

    \104\ Percent decreases are based on the sum of Sodium Target 
lunch and breakfast requirements.
    \105\ 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.
---------------------------------------------------------------------------

    Industry has made great strides in producing lower sodium 
products since the implementation of the 2012 standards and USDA 
Foods increased lower sodium offerings; however, additional time is 
necessary for industry to adjust and continue to formulate lower 
sodium products. The FDA, in October 2021, released voluntary sodium 
reduction targets for the food industry. The FDA's guidance provides 
voluntary short-term (2.5 year) sodium reduction targets for food 
manufacturers, chain restaurants, and food service operators for 163 
categories of processed, packaged, and prepared foods. The targets 
in the FDA's guidance seek to support decreasing average U.S. 
population sodium intake from approximately 3,400 mg to 3,000 mg per 
day, about a 12 percent reduction. While FDA is recommending the 
voluntary targets be met in 2.5 years, in advance of that timeframe 
schools are anticipated to be able to procure additional options 
that are lower in sodium as the food industry continues 
reformulation efforts and develops new food products that align with 
FDA's voluntary targets.\106\
---------------------------------------------------------------------------

    \106\ U.S. Food and Drug Administration: Voluntary Sodium 
Reduction Goals: Target Mean and Upper Bound Concentrations for 
Sodium in Commercially Processed, Packaged, and Prepared Foods. 
October 2021 https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-voluntary-sodium-reduction-goals.
---------------------------------------------------------------------------

    The USDA study on Successful Approaches to Reduce Sodium in 
School Meals also noted that reducing sodium can be challenging, 
especially when using pre-packaged products, which may result in 
schools no longer purchasing these items.\107\ Combination entrees 
and accompaniments contributed the most (61 percent) to the

[[Page 7016]]

sodium levels of prepared foods, specifically sandwiches with plain 
meat and poultry, condiments, and toppings.\108\ This may 
financially impact the manufacturers of these products if they are 
not able to successfully reduce the sodium levels of products sold 
to schools.
---------------------------------------------------------------------------

    \107\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A. 
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to 
Reduce Sodium in School Meals Final Report. Prepared by 2M Research 
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S. 
Department of Agriculture, Food and Nutrition Service.
    \108\ 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.
---------------------------------------------------------------------------

    This final rule maintains Sodium Target 1 for NSLP and SBP 
through SY 2022-2023, retains Sodium Target 1 for SBP in SY 2023-
2024, and institutes a modified Sodium Interim Target 1A for NSLP 
beginning in SY 2023-2024.\109\ USDA set the near-term Target 1A 
reduction at 10 percent, which also aligns with research indicating 
gradual sodium reductions are less noticeable to consumers.\110\ 
Target 1A is about a 1 percent to 5 percent decrease from sodium 
levels in prepared meals in SY 2014-2015 for K-5 and 9-12 age grade 
groups and a 2 percent increase for 6-8 age/grade group.\111\
---------------------------------------------------------------------------

    \109\ As noted in the preamble, when examining the daily sodium 
allocation attributed to each meal, USDA determined that sodium 
reductions are most needed at lunch. Therefore, USDA is maintaining 
Sodium Target 1 for breakfast during the two-year timeframe of this 
transitional rule, which will allow schools to focus their sodium 
reduction efforts on school lunch.
    \110\ Institute of Medicine 2010. Strategies to Reduce Sodium 
Intake in the United States. Washington, DC: The National Academies 
Press. https://doi.org/10.17226/12818.
    \111\ 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.

                                   Table 8--Sodium Target 1 and 1A and Average Weekly Sodium Levels for Prepared Meals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           SY 2014-2015 NSLP
                   Age/grade group                      Sodium Target 1     average  sodium    % Difference from    Target 1A NSLP     % Difference from
                                                             NSLP            levels \112\       Sodium Target 1                        Sodium Target 1A
--------------------------------------------------------------------------------------------------------------------------------------------------------
K-5.................................................               1,230               1,125                  -9               1,110                  -1
6-8.................................................               1,360               1,200                 -12               1,225                   2
9-12................................................               1,420               1,345                  -5               1,280                  -5
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Sodium Target 1    SY 2014-2015 SBP   % Difference from  ..................
                                                                     SBP             average     Sodium Target 1
                                                                               sodium levels
                                                                                       \113\
                                                     ------------------------------------------------------------
K-5.................................................                 540                 505                  -6
6-8.................................................                 600                 564                  -6
9-12................................................                 640                 584                  -9
--------------------------------------------------------------------------------------------------------------------------------------------------------

    To estimate the impacts associated with additional sodium 
reduction, this analysis focuses on the increased need for scratch 
cooking due to immediate sodium reduction timeframe which does not 
allow for sufficient time for product development as noted earlier. 
Scratch cooking is one method to reduce sodium levels and over time 
can be successfully integrated into a comprehensive sodium reduction 
plan along with incorporating more lower sodium products into menus. 
Schools would be able to balance scratch cooking with lower sodium 
products as industry continues to formulate lower sodium foods. The 
requirement of the Sodium Final Target going into effect immediately 
in SY 2022-2023 absent this rule will require schools to move 
straight to cooking more recipes from scratch. As schools prepare 
more foods on site, labor costs will increase as prepackaged foods 
are substituted with scratch cooked foods and schools will need to 
increase time spent on food preparation. This may require hiring 
more school food service staff and/or reallocating responsibilities. 
In addition to labor impacts, the types of foods schools purchase 
will likely change due to reducing the prepackaged foods and 
increasing ingredient-based items to support sodium reduction. For 
example, the USDA study on Successful Approaches to Reduce Sodium in 
School Meals found that school districts in the study reported 
serving more fresh fruits and vegetables to reduce sodium content. 
This may cause a reduction in food costs if items purchased to 
scratch cook are less expensive; however, these costs may be offset 
by the quantity needed or additional foods purchased to prepare 
meals from scratch.
---------------------------------------------------------------------------

    \112\ 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.
    \113\ 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.
---------------------------------------------------------------------------

    Food and labor costs account for the vast majority (45 percent 
each for a total of 90 percent) of the average cost to produce a 
school lunch for a school district. Other reported direct costs are 
the remaining 10 percent. This distribution is similar for SBP 
breakfasts.\114\ To simulate the potential increase in costs due to 
changes to the Sodium Targets, this analysis focuses on the 
estimated increase in labor costs, however food costs are also 
estimated to proportionally increase based on the distribution of 
food and labor costs in a school meal.\115\
---------------------------------------------------------------------------

    \114\ U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, School Nutrition and Meal Cost 
Study, Final Report Volume 3: School Meal Costs and Revenues by 
Christopher Logan, Vinh Tran, Maria Boyle, Ayesha Enver, Matthew 
Zeidenberg, and Michele Mendelson. Project Officer: John Endahl. 
Alexandria, VA: April 2019.
    \115\ This distribution of food, labor, and other has remained 
consistent between the two study time periods (SY 2005-2006 and SY 
2015-2015). The School Lunch and Breakfast Cost Study--II in SY 
2005-2006 and School Nutrition Meal Cost study in SY 2014-2015.
---------------------------------------------------------------------------

    To capture current scratch cooking practices to estimate the 
potential increase in scratch cooking and the corresponding impacts, 
data from USDA's Farm to School Census \116\ are used. While the 
Farm to School Census does not represent all school districts, it 
does encompass the majority: 65 percent of school districts reported 
that they participated in at least one Farm to School activity in SY 
2018-2019. The distribution of prevalence of scratch cooking from 
the Farm to School Census is assumed across the 97,000 schools for 
this analysis.\117\ In this respect, these estimates may overstate 
the current scratch cooking levels with the assumption that school 
districts participating in Farm to School activities may be more 
likely to prepare more recipes from scratch.
---------------------------------------------------------------------------

    \116\ Bobronnikov, E. et al. (2021). Farm to School Grantee 
Report. Prepared by Abt Associates, Contract No. AG-3198-B-16-0015. 
Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, Project Officer: Ashley Chaifetz.
    \117\ Applying this distribution to schools assumes no 
significant variation in scratch cooking by school district 
characteristics.

[[Page 7017]]



    Talbe 7--Percent of School Districts by Percent of Scratch Cooked
                                 Recipes
                      [Farm to School Census data]
------------------------------------------------------------------------
                    Prevalence                       Percent of schools
------------------------------------------------------------------------
<25% RECIPES MADE FROM SCRATCH....................                    40
26-50% RECIPES MADE FROM SCRATCH..................                    32
51-75% RECIPES MADE FROM SCRATCH..................                    19
76-100% RECIPES MADE FROM SCRATCH.................                    10
------------------------------------------------------------------------

    This analysis assumes that 2 hours a day of additional labor is 
needed to increase scratch cooking to meet the Sodium Final 
Target.\118\ This could be achieved by hiring a new employee for 10 
hours a week or shifting staff for schools already conducting some 
scratch cooking. Using the average of the Bureau of Labor Statistics 
series on total compensation for service occupations related to 
leisure and hospitality and the accommodation and food service 
workers series, an hourly rate of $15.43 is used to estimate the 
wage rate of the additional food service staff to perform the 
additional scratch cooking.\119\ This is an additional $30.85 a 
school day for scratch cooking or $5,553 a year for one school. 
Multiplying this across all schools provides an estimated $538 
million for all schools to increase labor for scratch cooking for 2 
additional hours a day. This calculates to $0.07 more a meal for the 
increase in labor. This $0.07 per meal cost is then scaled by 
prevalence of scratch cooking across recipes and the estimated labor 
costs are then doubled to account for the proportional increase in 
food costs. This analysis assumes that about 7.5 billion school 
meals (5 billion lunches and 2.5 billion breakfasts) are served in 
SY 2022-2023. It is assumed that about 10 percent of these meals are 
served in schools that are already cooking 76 percent to 100 percent 
of their recipes from scratch and will not have measurable costs 
associated with moving to the Sodium Final Target in SY 2022-2023. 
The remaining 90 percent of meals are served in schools that must 
incur some additional labor and food costs to reduce current sodium 
levels.
---------------------------------------------------------------------------

    \118\ This is just for the base analysis. The Uncertainties 
section provides a sensitivity analysis of other labor hour options. 
The additional 2 hours is for preparing breakfasts and lunches. It 
is likely that lunch preparation will account for a larger share of 
the 2 hours. The two hours is loosely modeled from the higher 
average of 51 minutes spent of food preparation from the American 
Time Use Survey. American Time Use Survey Home Page (bls.gov).
    \119\ Full compensation series is less granular that wage 
series, the two closest series are used to estimate the labor rates 
for additional food service staff dedicated to cooking.
---------------------------------------------------------------------------

    This analysis assumes, based on early implementation progress, 
most schools are already meeting Sodium Target 1 and can meet Target 
1A with reasonable menu changes. In SY 2014-2015, the first year the 
Sodium Target 1 went into effect, 72 percent of the schools were 
meeting this requirement for NSLP and 13 percent were within 10 
percent of meeting Target 1 for NSLP. For SBP, 67 percent were 
meeting Target 1 and just over 10 percent were within 10 percent of 
meeting Target 1. Average prepared sodium levels were already 5 
percent to 12 percent lower than the Target 1 limits for NSLP and 6 
percent to 9 percent lower for SBP. Average NSLP sodium levels in SY 
2014-2015 were also very close to Target 1A.
    To capture any schools that are not currently meeting Target 1 
or Target 1A, this analysis assumes that 10 percent of meals are 
served in schools that will need to make changes to their current 
menus to incorporate lower sodium products. Target 1 was meant to be 
mostly met with products currently available, but these schools may 
also need to slightly increase scratch cooking or change preparation 
practices. This analysis assumes that these schools will need to 
allow for one more labor hour a day to facilitate the menu changes 
needed to achieve Target 1 and Target 1A. This is estimated to cost 
about $98 million more in labor and food to bring these schools to 
Targets 1 and 1A in SY 2022-2023.
    Absent this rule, schools would be required to move to the 
Sodium Final Target. For this analysis it is assumed if schools are 
cooking more than 75 percent of recipes from scratch, the Sodium 
Final Target is achievable. This is supported by the assumption that 
scratch cooking would reduce combination entr[eacute]es and 
condiments, which USDA research finds contribute the most sodium to 
school meals. Based on the prevalence of scratch cooking, it is 
assumed that about 80 percent meals are served in schools that will 
need to increase labor by two full hours per day. The remaining 20 
percent of meals are served in schools that will need to increase 
labor by one hour per day, because these schools are already making 
between 51 percent and 75 percent of recipes from scratch. It is 
estimated that it would cost about $975 million in food and labor 
costs to achieve the Sodium Final Target in SY 2022-2023. This is a 
per meal increase of $0.13.

                                    Table 9--Estimated Costs by Sodium Target
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                  Average hours
                     Target                       of additional      Estimated    Estimated food     Estimated
                                                  labor per day     labor costs        costs        total costs
----------------------------------------------------------------------------------------------------------------
TARGET 1 IN SY 2022-2023; TARGET 1A IN SY 2023-              1.0             $49             $49             $98
 2024..........................................
FINAL TARGET IN SY 2022-2023...................              1.8           438.5           438.5             877
----------------------------------------------------------------------------------------------------------------

    This analysis does not take into consideration the costs of 
purchasing additional equipment and/or kitchen renovations to 
support scratch cooking or the challenges of immediately moving to 
the Sodium Final Target without enough time to implement successful 
strategies to reduce sodium. The school districts in the USDA study 
on Successful Approaches to Reduce Sodium in School Meals reported 
that scratch cooking and fresh produce preparation required space 
for preparing foods, adequate storage space including freezer and 
refrigeration space, proper cafeteria line display and service 
equipment, and maintenance or upgrading of kitchen equipment for 
efficient mass preparation of items. Smaller SFAs and those with 
older cafeteria equipment especially noted these challenges. It is 
unlikely that schools would be able to procure the necessary 
equipment to support the increases in scratch cooking in time for SY 
2022-2023 due to the procurement process timeframe, which has been 
further delayed by supply chain disruptions. School size and 
urbanicity were also associated with SFAs' abilities to procure 
lower sodium foods and to utilize effective menu planning 
strategies. Small, rural SFAs reported fewer resources available for 
purchasing and preparing lower sodium foods, while large, urban SFAs 
were able to procure more low-sodium items at a lower cost and 
reported having access to a larger number of suppliers, which 
enabled them to use more effective menu planning strategies. This is 
further supported by smaller school districts (less than 500 
students enrolled) and rural school districts on average serving

[[Page 7018]]

meals with significantly higher sodium levels in SY 2014-2015.\120\
---------------------------------------------------------------------------

    \120\ 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.
---------------------------------------------------------------------------

    As noted, sodium reduction must be implemented over time to 
allow for successful product reformulation while balancing increased 
scratch cooking. Taste testing was the most used approach for 
gaining student acceptance of lower sodium items. School districts 
reported experiencing challenges in gaining student acceptance, but 
indicated that they were often successful when using a combination 
of supportive approaches such as performing taste tests to identify 
student preferences, tailoring menu options to cultural and regional 
preferences, promoting healthy food choices through education and 
communication materials, and implementing menu changes 
incrementally.
    Many districts also engaged parents, staff, and community 
members in taste tests, nutrition education, and other promotional 
activities to increase buy-in.\121\ According to an analysis of 
2011-2016 National Health and Nutrition Examination Survey (NHANES) 
data, almost all school children (94 percent) had usual sodium 
intakes that exceed the Chronic Disease Risk Reduction (CDRR) 
level.122 123 This is a widespread issue and strategies 
must be implemented by industry and schools over time for success.
---------------------------------------------------------------------------

    \121\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A. 
Glenn, M.E., Burke, S. & Connor, P. (2019). Successful Approaches to 
Reduce Sodium in School Meals Final Report. Prepared by 2M Research 
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S. 
Department of Agriculture, Food and Nutrition Service.
    \122\ Reducing sodium intakes above the CDRR is expected to 
reduce the risk of chronic disease.
    \123\ Unreleased USDA report using 2011-2016 National Health and 
Nutrition Examination Survey (NHANES) data to examine the 
relationship between estimated program participation, diet quality, 
indicators of nutrition and health, food consumption patterns, and 
nutrient intakes.
---------------------------------------------------------------------------

    Given that these strategies are meant to be implemented over 
time, schools will not be able to pivot quickly to these strategies 
in SY 2022-2023, particularly given the challenges they will face in 
shifting off of COVID-19 operations. This is also compounded by the 
current labor shortages school districts and the entire food service 
industry are facing as employees left jobs during the pandemic.\124\ 
Prior to the pandemic schools expressed concerns about staffing 
levels especially in smaller school districts where staff may be 
responsible for multiple jobs.\125\ The pandemic intensified 
staffing issues for schools and many are currently experiencing 
shortages and increases in labor rates. Additional burden is 
currently placed on schools due to the time needed to manage 
procurement and menu changes in response to the supply chain 
disruptions. The immediacy of moving to the Sodium Final Target in 
SY 2022-2023 does not allow schools sufficient time to set up the 
necessary infrastructure to achieve the sodium reduction required 
for the Sodium Final Target.
---------------------------------------------------------------------------

    \124\ Employment in leisure and hospitality is down by 1.4 
million, or 8.2 percent, since February 2020. The Employment 
Situation--October 2021 (bls.gov).
    \125\ U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, School Nutrition and Meal Cost 
Study, Final Report Volume 1: School Meal Program Operations and 
School Nutrition Environments by Sarah Forrestal, Charlotte Cabili, 
Dallas Dotter, Christopher W. Logan, Patricia Connor, Maria Boyle, 
Ayseha Enver, and Hiren Nissar. Project Officer: John Endahl. 
Alexandria, VA: April 2019.
---------------------------------------------------------------------------

Participation Impacts

    This final rule is not anticipated to measurably impact school 
meal participation due to the changes to the milk, whole grains, and 
sodium requirements. As noted earlier, this rule provides realistic 
goals for schools still transitioning from COVID-19 operations and 
encountering supply chain issues. The COVID-19 meal service levels 
were lower than typical in the early part of the pandemic when most 
schools shut down and transitioned to grab-and-go sites to ensure 
continuity of school meals for children. As schools opened and more 
children attended school in person, meals served started to move 
closer to pre-pandemic levels.\126\ Through the COVID-19 nationwide 
waivers, schools have been able to offer free meals to all children 
to facilitate COVID-19 safety precautions. As schools transition 
back to typical operations, there may be some uncertainty in 
participation levels, which may pose challenges in projecting 
quantities of foods to purchase. This rule is sensitive to the types 
of foods schools already typically have available to purchase to 
meet the meal standards. While this rule is not expected to 
significantly impact program participation, it does support schools 
and allows additional time for schools to gauge meal program 
participation post-COVID.
---------------------------------------------------------------------------

    \126\ According to FNS administrative data on meals served 
across NSLP, SBP, and SFSP, October 2020 meals were only 65 percent 
of total October 2019 meals. May 2021 meals were 86 percent of May 
2019 meals service.
---------------------------------------------------------------------------

    Absent this rule, schools would be required to meet the 2012 
standards, most notably meeting the Sodium Final Target requirement, 
which is a significant reduction in sodium levels. This would pose 
an extreme challenge for most schools as the full sodium reduction 
timeline from the 2012 standards was never fully implemented and 
schools were never required to meet targets below Sodium Target 1. 
Without this rule, some schools may leave the programs, as the 
benefits of participation are outweighed by the resources needed to 
meet program requirements.
    It is unlikely that schools will leave the programs due to the 
milk and whole grain-rich requirements in the 2012 standards due to 
improved product availability and current progress. However, moving 
straight to the Sodium Final Target without gradual reduction in 
sodium levels through product availability and increased scratch 
cooking is unrealistic and may result in schools dropping out the 
programs. As noted earlier, smaller (less than 500 enrolled 
students) and rural schools had significantly higher sodium levels 
and face additional challenges due to insufficient resources and 
lack of product availability. Schools that already receive low 
levels of federal reimbursement due to less free and reduced-price-
certified students may not find the benefits of the programs worth 
the additional resources needed to abruptly meet the Sodium Final 
Target. To assess the potential number of schools that would drop 
out of the school meal programs if the 2012 standards immediately 
went into effect next school year, smaller schools with low levels 
of free and reduced-price-certified children (less than 25 percent) 
are targeted in estimating this unintentional impact.
    Just under 5 percent of schools nationwide have less than 500 
students enrolled and less than 25 percent free and reduced-price-
certified children. This is about 4,500 schools estimated to drop 
out of the school meal programs absent this rule. About 25 percent 
of these schools are in rural areas. There are estimated to be about 
1.4 million children enrolled in these schools with about 214,000 
children approved for free and reduced-price meals.\127\ USDA 
estimates there are about 814,000 daily NSLP participants and 
428,000 daily SBP participants in these schools.\128\ Federal 
reimbursements are estimated to decrease by an estimated $180 
million the first year (or about 1 percent of total NSLP and SBP 
meal reimbursements) due to schools dropping out of the NSLP and SBP 
and children losing access to school meal benefits.
---------------------------------------------------------------------------

    \127\ Based on an internal USDA analysis using nationally 
representative data from the School Nutrition Meal Cost study on 
school characteristics.
    \128\ Using national participation rates of 57 percent for NSLP 
and 30 percent for SBP.

            Table 10--Annual Reduction in Federal Reimbursements Due To Schools Leaving NSLP and SBP
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
     FY 2022            FY 2023            FY 2024            FY 2025            FY 2026             5-Year
----------------------------------------------------------------------------------------------------------------
            -$3              -$179              -$184              -$190              -$195              -$751
----------------------------------------------------------------------------------------------------------------


[[Page 7019]]

    While this is a savings for the Federal government in meal 
reimbursements, it transfers the costs of preparing school meals to 
the households. Given the time it takes to prepare meals and higher 
food costs due to inflation and not being able to purchase foods in 
bulk, it is likely that the costs to the households would be higher 
than just the Federal reimbursement levels. Lunches consumed from 
school are, on average, the most nutritious compared to lunches from 
home or other places, and students consuming school lunch were more 
likely to consume milk, fruits, vegetables than students who did not 
eat a school lunch.\129\ It would take additional time and resources 
for households to prepare lunches that are equivalent in nutritional 
value. This could pose hardships for households, especially for 
those with children approved for free or reduced-price meals.
---------------------------------------------------------------------------

    \129\ 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.
---------------------------------------------------------------------------

Summary

    As noted earlier, this rule is intended to support the 
transition from COVID-19 operations and to allow time for a more 
long-term comprehensive rulemaking process to further update the 
standards to reflect the Dietary Guidelines for Americans, 2020-
2025.\130\ This rule makes adjustments from the proposed rule to 
continue efforts to improve the nutrition of school meals while 
maintaining operational feasibility. Most of the impacts associated 
with this rule are in the form of shifts in purchasing patterns and 
costs incurred by the schools to procure additional products to meet 
the standards and increases in labor. Costs in this section may not 
actually be incurred but reflect the potential value of the changes 
in this rule and impacts absent this rule.
---------------------------------------------------------------------------

    \130\ The new final rule is anticipated to be in effect in time 
for SY 2024-2025.

    Table 11--Estimated Annual Increase and Reduction in School Costs
                               [Millions]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
             ESTIMATED ANNUAL COSTS MOVING TO 2012 STANDARDS
------------------------------------------------------------------------
MILK (NO LOW FAT FLAVORED)..............................            -$13
100 PERCENT WHOLE GRAIN-RICH............................             378
SODIUM FINAL TARGET.....................................             975
                                                         ---------------
    TOTAL...............................................           1,341
                                                         ---------------
        PER MEAL........................................            0.18
------------------------------------------------------------------------
                  ESTIMATED ANNUAL COSTS OF FINAL RULE
------------------------------------------------------------------------
MILK (LOW FAT FLAVORED ALLOWED).........................              13
80 PERCENT WHOLE GRAIN-RICH.............................              76
SODIUM TARGET 1 AND 1A..................................              98
                                                         ---------------
    TOTAL...............................................             187
                                                         ---------------
        PER MEAL........................................            0.03
------------------------------------------------------------------------
 ESTIMATED ANNUAL REDUCTIONS WITH FINAL RULE COMPARED TO 2012 STANDARDS
------------------------------------------------------------------------
MILK (LOW FAT FLAVORED ALLOWED).........................              13
80 PERCENT WHOLE GRAIN-RICH.............................            -303
SODIUM TARGET 1 AND 1A..................................            -780
                                                         ---------------
    TOTAL...............................................          -1,069
                                                         ---------------
        PER MEAL........................................           -0.15
------------------------------------------------------------------------

    If the 2012 standards for milk, whole grain, and sodium are 
fully implemented in SY 2022-2023, it will cost schools $0.18 cents 
per lunch and breakfast in food and labor costs. Impacts to the 
market will be similar in magnitude as purchasing patterns shift to 
encompass more whole grain-rich items and ingredients for scratch 
cooking. The shifts would primarily occur from enriched to whole 
grain-rich products to the meet the grain requirement and from 
prepackaged foods with higher sodium levels to other food, such as 
more fruits and vegetables and ingredients to support more scratch 
cooking. The milk purchases will shift away from flavored low-fat to 
flavored fat-free varieties, which will offset total costs since 
flavored low-fat varieties are slightly more expensive than flavored 
fat-free varieties. Total annual costs associated with restoring the 
2012 standards in SY 2022-2023 are estimated at $1.3 billion the 
first year to make this transition based on progress to-date in 
implementing the 2012 standards. If progress regressed from SY 2014-
2015 due to uncertainty in the requirements over the years and 
COVID-19 impacts, costs are estimated to be closer to $1.7 billion 
the first year or $0.24 more per breakfast and lunch.
    Estimated annual costs associated with moving to the 
requirements in this rule are $187 million the first year or $0.03 
more per lunch and breakfast. These costs are associated with 
purchasing flavored low-fat milk and more whole grain-rich products. 
There are also some costs associated with schools that still need to 
move to Target 1 for NSLP and SBP and Target 1A for NSLP in SY 2023-
2024 through purchasing shifts to lower sodium products and 
increases in scratch cooking. If all flavored fat-free milk is 
substituted with flavored low-fat milk, and schools regressed in 
whole grain-rich progress compared to SY 2014-2015, this rule is 
estimated to cost $665 million the first year or $0.09 more per 
meal.
    This rule is estimated to reduce impacts to schools by $0.15 per 
meal or $1.1 billion in the first year by reducing the requirement 
from serving exclusively whole grain-rich products to 80 percent 
whole grain-rich products and holding Sodium Target 1 for SY 2022-
2023 for NSLP and SBP and moving to Target 1A for NSLP in SY 2023-
2024. There is an increase in costs due to allowing flavored low-fat 
milk, which tends to cost slightly more than flavored fat-free 
milk.\131\
---------------------------------------------------------------------------

    \131\ Voluntary incurring of a cost is likely associated with 
benefits that are difficult to quantify--potentially, in this case, 
including reduced food waste.
---------------------------------------------------------------------------

    This rule provides achievable standards while USDA engages in 
more comprehensive long-term rulemaking to further update the

[[Page 7020]]

meal standards. These costs assume relatively stable participation 
over the 5-years with SY 2022-2023 projected to return to pre-
pandemic meal service levels.

                                                     Table 12--Estimated 5-Year Costs and Reduction
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              FY 2022         FY 2023         FY 2024         FY 2025         FY 2026         5-Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        ESTIMATED COSTS MOVING TO 2012 STANDARDS
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK (NO FLAVORED LOW-FAT)..............................             -$2            -$13            -$13            -$14            -$14            -$56
100 PERCENT WHOLE GRAIN-RICH............................              61             378             386             394             402           1,620
SODIUM FINAL TARGET.....................................             156             975             995           1,015           1,035           4,176
                                                         -----------------------------------------------------------------------------------------------
    TOTAL...............................................            $214          $1,341          $1,367          $1,395          $1,423          $5,740
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              ESTIMATED COSTS OF FINAL RULE
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK (FLAVORED LOW-FAT ALLOWED).........................               2              13              13              14              14              56
80 PERCENT WHOLE GRAIN-RICH.............................              12              76              77              79              80             324
SODIUM TARGET 1 AND 1A..................................              16              98             100             102             104             421
                                                         -----------------------------------------------------------------------------------------------
    TOTAL...............................................              30             187             191             195             199             802
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     ESTIMATED REDUCTION IN COSTS DUE TO FINAL RULE
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK (FLAVORED LOW-FAT ALLOWED).........................               2              13              13              14              14              56
80 PERCENT WHOLE GRAIN-RICH.............................             -48            -303            -309            -315            -321          -1,296
SODIUM TARGET 1 AND 1A..................................            -125            -780            -795            -811            -827          -3,338
                                                         -----------------------------------------------------------------------------------------------
    TOTAL...............................................            -171          -1,069          -1,090          -1,112          -1,134          -4,577
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The number of schools dropping out of the programs will reduce 
the number of meals served if 2012 standards are restored. This will 
reduce the costs associated with returning to the 2012 standards by 
3 percent or an annual reduction of $40 million due to schools 
dropping out of the school meal programs and less children 
participating.

                                   Table 13--Interaction Between 2012 Standards Cost and Schools Leaving NSLP and SBP
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
         FY 2022                   FY 2023                   FY 2024                   FY 2025                  FY 2026                   5-Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                $208                    $1,300                    $1,326                    $1,354                    $1,382                   $5,362
--------------------------------------------------------------------------------------------------------------------------------------------------------

Uncertainties

School Meal Student Participation

    As noted earlier, participation for the base estimates is 
assumed to mirror pre-pandemic levels and then stabilize at a rate 
of about a 2 percent increase from year to year. Long-term 
participation impacts of the pandemic are unknown, and a full 
rebound may not occur. There is also the chance participation will 
increase as most schools have been offering meals at no charge to 
students. Households may have realized the benefits of school meals 
during the pandemic, which may cause children to participate at 
higher rates even as schools return to standard operations. This 
sensitivity analysis assumes a participation increase and decrease 
of 5 percent to measure the impact of participation changes on the 
estimated impacts of this rule and returning to the 2012 standards 
absent this rule. This analysis does not take into consideration 
potential economies of scale: As more meals are served, schools may 
be able to reduce costs through bulk purchasing and preparing meals 
at a lower per meal cost. These costs are compared to the base 
analysis costs for the first year of $1.3 billion to return to the 
2012 standards and $187 million for this final rule.

            Table 14--Projected Costs by Participation Change
                               [Millions]
------------------------------------------------------------------------
                                          1-Year             5-Year
------------------------------------------------------------------------
                ESTIMATED COSTS MOVING TO 2012 STANDARDS
------------------------------------------------------------------------
5 PERCENT PARTICIPATION INCREASE..             $1,408             $6,292
5 PERCENT PARTICIPATION DECREASE..              1,274              4,928
------------------------------------------------------------------------
                      ESTIMATED COSTS OF FINAL RULE
------------------------------------------------------------------------
5 PERCENT PARTICIPATION INCREASE..                197                879
5 PERCENT PARTICIPATION DECREASE..                178                689
------------------------------------------------------------------------


[[Page 7021]]

Grain Cost Difference

    The base analysis assumed that there is currently about a 15 
percent price increase for whole grain-rich items compared to 
enriched grain items. This assumption was based on decreasing the 34 
percent assumed mark up in whole grain-rich prices in the Regulatory 
Impact Analysis for the 2012 rule. Most of the grain items offered 
in school meals in SY 2014-2015 were whole grain-rich, as USDA Foods 
and the broader school food industry have increased whole grain 
offerings over the years. This reduction was assumed to be about 
half the 34 percent; however, this was adjusted based on data 
supporting a reduction in the 34 percent but unable to be 
quantified. The impacts estimated below are based on a 30 percent 
and 5 percent price increase for whole grain-rich products compared 
to enriched grain products. This gives a sense of the potential 
range of costs associated with the whole grain-rich requirements in 
this rule, and in the 2012 rule. These estimates are compared to the 
base analysis estimates of $379 million to go to the 2012 standards 
and $76 million for this rule.

 Table 15--Estimated Costs of Increasing Whole Grain-Rich Items by Whole
                     Grain-Rich Cost Increase Level
                               [Millions]
------------------------------------------------------------------------
                                     Expected annual
                                    cost  (increasing   High annual cost
        Requirement change           from  75 percent   (increasing from
                                           WGR)         50 percent WGR)
------------------------------------------------------------------------
     ASSUMING A 30 PERCENT COST INCREASE FOR WHOLE GRAIN-RICH ITEMS
------------------------------------------------------------------------
INCREASING TO 100 PERCENT.........               $757             $1,513
INCREASING TO 80 PERCENT..........               $151                908
------------------------------------------------------------------------
      ASSUMING A 5 PERCENT COST INCREASE FOR WHOLE GRAIN-RICH ITEMS
------------------------------------------------------------------------
INCREASING TO 100 PERCENT.........                126                252
INCREASING TO 80 PERCENT..........                 25                151
------------------------------------------------------------------------

Labor Hours for Scratch Cooking

    As noted, until lower sodium products are more readily available 
in the school food market, USDA expect that schools would rely on 
more labor-intensive food preparation, including scratch cooking, to 
meet lower sodium standards. The assumption that it would take about 
2 hours a day to increase scratch cooking to support sodium 
reduction was based on a general concept that about an hour is spent 
on food preparation and clean up a day.\132\ For the sake of the 
base analysis, this time is doubled to two hours to reflect the 
average increased time for bulk scratch cooking across schools. This 
may be an underestimate especially absent this rule and requiring 
schools to quickly pivot to scratch cooking possibly for the first 
time. It may take longer to plan recipes and successfully prepare 
meals as well as obtain the necessary equipment, resources, and 
staff to support additional scratch cooking. This analysis increases 
the labor hours to 20 hours per week or 4 hours per day to estimate 
the increased costs for additional hours dedicated to scratch 
cooking.
---------------------------------------------------------------------------

    \132\ Table A-1. Time spent in detailed primary activities and 
percent of the civilian population engaging in each activity, 
averages per day by sex, 2019 annual averages (bls.gov).

                          Table 16--Estimated Increase in Sodium Costs for 4 Hours/Day
----------------------------------------------------------------------------------------------------------------
                                                          Estimated labor    Estimated  food    Estimated total
                         Target                                costs              costs              costs
----------------------------------------------------------------------------------------------------------------
TARGET 1 IN SY 2022-2023; TARGET 1A IN SY 2023-2024....                $97                $97               $194
FINAL TARGET IN SY 2022-2023...........................                877                877              1,754
----------------------------------------------------------------------------------------------------------------

D. Benefits

    This final rule aligns with progress implementing the 2012 meal 
standards and provides schools the ability to transition from COVID-
19 operations. It is not expected schools will need to make 
significant modifications to their typical operations and resources 
to meet the requirements in this final rule. This rule is to support 
schools recovering from significant supply chain disruptions, which 
have made it difficult to obtain food needed to meet certain meal 
pattern requirements and provide the necessary time for USDA to make 
long term changes to continue to improve the nutritional content of 
school meals.
    School meals are an important source of food for almost 30 
million children each school day and have served as critical 
nutrition support during the COVID-19 pandemic. During the COVID-19 
pandemic, about 1 in 10 adults (25 million) reported that they or 
their families have sometimes or often not had enough food to eat in 
the last 7 days. Food hardship rates were higher for Black and 
Hispanic adults, with 1 and 5 Black adults, and 1 in 6 Hispanic 
adults, reporting that they or their families have sometimes or 
often not had enough to eat in the last 7 days. Families with 
children were also more likely to experience hardship, with 49 
percent more frequent reports of food insufficiency compared to 
those without children. Schools served an important source of food 
assistance during the pandemic. Families reporting receiving free 
meals or groceries during the last 7 days reported schools as the 
most common source of this assistance.\133\
---------------------------------------------------------------------------

    \133\ USDA internal analysis of the Census Household Pulse data: 
Household Pulse Survey Data Tables (census.gov).
---------------------------------------------------------------------------

    The nutrition content of school meals has already significantly 
increased and is leading to long term dietary improvements among 
school children. As noted earlier, total HEI-2010 scores for lunches 
consumed were higher for NSLP participants, regardless of income, 
compared to nonparticipants, and NSLP participants' lunches had 
higher scores for of dairy, whole grains, and vegetables and lower 
concentrations of refined grains and empty calories.\134\ Another 
study that evaluated diet quality trends by food source among U.S. 
children and adults and by different sociodemographic subgroups 
found that the quality of foods (meals, snacks, and beverages) 
consumed from school improved significantly without population 
disparities. These findings suggest that the 2012 meal standards 
produced significant, specific, and equitable changes in dietary 
quality of school foods. The increase in dietary quality of foods 
consumed from school was primarily driven by significant improvement 
in scores

[[Page 7022]]

for whole grains, saturated fat, and sodium.\135\
---------------------------------------------------------------------------

    \134\ Gearan EC, Monzella K, Jennings L, Fox MK. Differences in 
Diet Quality between School Lunch Participants and Nonparticipants 
in the United States by Income and Race. Nutrients. 
2021;12(12):3891. https://www.mdpi.com/2072-6643/12/12/3891.
    \135\ Liu J, Micha R, Li Y, Mozaffarian D. Trends in Food 
Sources and Diet Quality Among US Children and Adults, 2003-2018. 
JAMA Netw Open. 2021;4(4):e215262. doi:10.1001/
jamanetworkopen.2021.5262.
---------------------------------------------------------------------------

    This final rule maintains and advances these nutritional 
improvements while USDA works to further strengthen the school meal 
pattern requirements through a permanent rulemaking based on a 
comprehensive review of the Dietary Guidelines for Americans, 2020-
2025. Taking time to incorporate the latest science is imperative. 
The Dietary Guidelines note that taste preference for salty foods 
may be established early in life, and that early food preference can 
influence later food choices. In adults, there is moderate to strong 
evidence for a causal and intake-response relationship between 
sodium intake and cardiovascular risk factors, including 
hypertension.\136\ Reducing daily sodium intake down to the CDRR 
reduces these risks and would particularly 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. 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 \137\ stressing the 
importance of building on the success of school meals in supporting 
healthy eating.
---------------------------------------------------------------------------

    \136\ 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.
    \137\ 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.
---------------------------------------------------------------------------

    Returning to the 2012 standards in SY 2022-2023 would be 
unrealistic for schools, with an estimated $1.3 billion in food and 
labor costs to support more scratch cooking and food purchases 
shifts but also from an operational standpoint. Standing up 
increased scratch cooking takes time to execute successfully, 
including time for students to provide feedback through taste tests 
and other activities to increase acceptance. Manufacturers need time 
to test and reformulate whole grain-rich and lower sodium products 
for the school market for schools to employ a comprehensive sodium 
reduction plan.
    The COVID-19 nationwide waivers significantly changed program 
operations, and time is needed to transition back to typical meal 
service. The timing of this rule is important as it provides time 
for schools to transition, but also leverages the important lessons 
from the pandemic on the importance of strong nutrition standards. 
The COVID-19 pandemic and corresponding school closures greatly 
disrupted the lives of children, likely resulting in increased 
stress, irregular mealtimes, less access to nutritious foods, 
increased screen time, and fewer opportunities for physical 
activity. Families already disproportionally affected by obesity 
risk factors likely had additional interruptions in income, food, 
and other social factors that impact obesity risk and health 
138 139 This rule is estimated to potentially require 
$187 million in additional resources or changes in purchasing 
patterns to implement; however, it saves an estimated $0.15 per meal 
if schools were required to fully meet all 2012 standards in SY 
2022-2023. Schools would face extreme challenge immediately 
returning to the 2012 standards from COVD-19 operations which would 
be compounded by the supply chain disruptions. This rule strikes the 
necessary balance in operational feasibility and recognizing the 
critical need to maintain strong achievable school nutrition 
standards during this transition period to continue to improve the 
diets of school children.
---------------------------------------------------------------------------

    \138\ Andrew G. Rundle1,2, Yoosun Park3, Julie B. Herbstman4, 
Eliza W. Kinsey1, and Y. Claire Wang, COVID-19-Related School 
Closings and Risk of Weight Gain Among Children.
    \139\ Lange SJ, Kompaniyets L, Freedman DS, et al. Longitudinal 
Trends in Body Mass Index Before and During the COVID-19 Pandemic 
Among Persons Aged 2-19 Years--United States, 2018-2020. MMWR Morb 
Mortal Wkly Rep 2021;70:1278-1283. DOI: http://dx.doi.org/10.15585/mmwr.mm7037a3.
---------------------------------------------------------------------------

E. Alternatives

Whole Grain-Rich Requirement at 60 Percent

    One consideration when developing this rule was to set a 
requirement that schools must offer at least 60 percent of grain 
offerings as whole grain-rich instead of 80 percent. As noted 
earlier, in SY 2014-2015, schools were on average serving about 70 
percent of grains as whole grain-rich. While the 60 percent 
threshold would likely be easier to meet, it could be a step back in 
whole grain-rich progress. If all schools regressed back to the 
requirement that only half of grain offerings had to be whole grain-
rich, the 60 percent would have slightly increased progress. USDA 
has no evidence to suggest that schools regressed in whole grain-
rich offerings before the pandemic and recognizes the important role 
whole grains play in a nutritious diet. Using the same methodology 
as the base whole grain-rich analysis, it would cost about $151 
million for schools to move to 60 percent of grain offerings as 
whole grain-rich. This estimate assumes that all schools moved back 
to the requirement of just half of grains offering as whole grain-
rich. This is equivalent to the $454 million for all schools to move 
from half of grain offerings as whole grain-rich to 80 percent whole 
grain-rich offerings.

     Table 17--Estimated Costs of Increasing Whole Grain-Rich Items
                               [Millions]
------------------------------------------------------------------------
                                     Expected annual
                                    cost  (increasing   High annual cost
             Threshold               from 75 percent    (increasing from
                                           WGR)         50 percent WGR)
------------------------------------------------------------------------
INCREASING TO 100 PERCENT.........               $378               $757
INCREASING TO 80 PERCENT..........                 76                454
INCREASING TO 60 PERCENT..........                  0                151
------------------------------------------------------------------------

Sodium Target 1 for SY 2022-2023 and Sodium Target 2 for SY 2023-2024

    Another consideration during the decision process for this rule 
was to require schools to meet Sodium Target 1 in SY 2022-2023 and 
move to Sodium Target 2 in SY 2023-2024. As noted earlier, the 
sodium timeline from the 2012 standards was never fully implemented 
and schools have only been required to reach Sodium Target 1. Sodium 
Target 2 for SBP is about a 10 percent reduction from Sodium Target 
1 and a 24 percent reduction for NSLP. Average sodium levels for 
prepared SBP breakfasts in SY 2014-2015 were about 2 percent to 5 
percent higher than Sodium Target 2, and average sodium levels for 
NSLP lunches were about 14 percent to 20 percent higher than Sodium 
Target 2. This would still be a substantial reduction for schools to 
achieve in one school year. Originally, Sodium Target 2 was meant to 
go into effect 3 years after schools were required to meet Sodium 
Target 1. These difficulties would be compounded by prolonged 
uncertainty regarding the Sodium Targets, industry needing more time 
to reformulate products with lower sodium levels, and the challenges 
schools may face transitioning from COVID-19 operations and supply 
chain disruptions. Using the same methodology as the base sodium 
estimates, it is estimated that schools would require at least 1 
hour a day of additional scratch cooking to meet Sodium Target 2 as 
well as the equivalent amount to support changes in purchasing 
patterns. It is estimated to cost

[[Page 7023]]

about $244 million in labor and the same amount in food costs for a 
total of $488 million for schools to reach Sodium Target 2. Along 
with the costs to reach Target 2, it would cost an additional $98 
million for 10 percent of schools to comply with Target 1. This is 
an annual total of $585 million for food and labor costs for schools 
to meet Sodium Target 2. The base analysis estimate for this rule 
only included the $98 million for the 10 percent of meals to reach 
Target 1 and Target 1A.

                                   Table 18--Estimated Costs by Sodium Target
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                  Average hours
                     Target                       of additional      Estimated    Estimated food     Estimated
                                                  labor per day     labor costs        costs        total costs
----------------------------------------------------------------------------------------------------------------
TARGET 1 IN SY 2022-2023; TARGET 1A IN SY 2023-              1.0             $49             $49             $98
 2024..........................................
FINAL TARGET IN SY 2022-2023...................              1.8           438.5           438.5             877
TARGET 2 IN SY 2023-2024.......................              1.0             244             244             488
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2022-02327 Filed 2-4-22; 8:45 am]
BILLING CODE 3410-30-P