[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Rules and Regulations]
[Pages 31962-32120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08098]



[[Page 31961]]

Vol. 89

Thursday,

No. 81

April 25, 2024

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: Meal Patterns Consistent With the 2020-2025 
Dietary Guidelines for Americans; Final Rule

  Federal Register / Vol. 89 , No. 81 / Thursday, April 25, 2024 / 
Rules and Regulations  

[[Page 31962]]


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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, 225, and 226

[FNS-2022-0043]
RIN 0584-AE88


Child Nutrition Programs: Meal Patterns Consistent With the 2020-
2025 Dietary Guidelines for Americans

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

ACTION: Final rule.

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SUMMARY: This rulemaking finalizes long-term school nutrition 
requirements based on the goals of the Dietary Guidelines for 
Americans, 2020-2025, robust stakeholder input, and lessons learned 
from prior rulemakings. Notably, this rulemaking gradually phases in 
added sugars limits for the school lunch and breakfast programs and in 
the Child and Adult Care Food Program, updates total sugars limits for 
breakfast cereals and yogurt to added sugars limits. As a reflection of 
feedback from stakeholders, this final rule implements a single sodium 
reduction in the school lunch and breakfast programs and commits to 
studying the potential associations between sodium reduction and 
student participation in the school lunch and breakfast programs. This 
rulemaking addresses a variety of other school meal requirements, 
including establishing long-term milk and whole grain requirements. 
Finally, this rule includes provisions that strengthen Buy American 
requirements. While this rulemaking takes effect school year 2024-2025, 
the Department is gradually phasing in required changes over time. 
Program operators are not required to make any changes to their menus 
as a result of this rulemaking until school year 2025-2026 at the 
earliest.

DATES: This final rule is effective July 1, 2024. Phased-in 
implementation dates for required changes are addressed in the 
SUPPLEMENTARY INFORMATION section of this rule.

ADDRESSES: Docket: Go to the Federal eRulemaking Portal at https://www.regulations.gov for access to the rulemaking docket, including any 
background documents.

FOR FURTHER INFORMATION CONTACT: Andrea Farmer, Director, School Meals 
Policy Division--4th floor, Food and Nutrition Service, 1320 Braddock 
Place, Alexandria, VA 22314; telephone: 703-305-2054.

SUPPLEMENTARY INFORMATION: 

Table of Contents

1. Background
    Phased-In Implementation
    USDA Support for Child Nutrition Programs
    Federal Strategies To Reduce Sodium and Added Sugars in the Food 
Supply
    Overview of Public Comments
2. Added Sugars
3. Milk
    3A: Flavored Milk
    3B: Fluid Milk Substitutes: Responses to Request for Input
    3C: Fluid Milk Substitutes: Nutrient Requirements
4. Whole Grains
5. Sodium
6. Meats/Meat Alternates at Breakfast
7. Substituting Vegetables for Grains in Tribal Communities
8. Traditional Indigenous Foods
9. Afterschool Snacks
10. Substituting Vegetables for Fruits at Breakfast
11. Nuts and Seeds
12. Beans, Peas, and Lentils at Lunch
13. Competitive Foods: Bean Dip Exemption
14. Meal Modifications
15. Clarification on Potable Water Requirements
16. Synthetic Trans Fats
17. Professional Standards: Hiring Exception for Medium and Large 
Local Educational Agencies
18. Buy American
    18A: Limited Exceptions to the Buy American Requirement
    18B: Exception Documentation and Reporting Requirements
    18C: Procurement Procedures
    18D: Definition of ``Substantially''
    18E: Clarification of Requirements for Harvested Farmed and Wild 
Caught Fish
19. Geographic Preference
20. Miscellaneous Changes
21. Summary of Changes
    21A: Descriptive Summary of Changes
    21B: Table of Changes by Program
22. Procedural Matters
    Regulatory Impact Analysis

Table of Abbreviations

AFHK--Action for Healthy Kids
ADA--Americans with Disabilities Act
CACFP--Child and Adult Care Food Program
CNA--Child Nutrition Act
CN-OPS--Child Nutrition Operations Study
FAR--Federal Acquisitions Regulations
FDA--U.S. Food and Drug Administration
FNS--Food and Nutrition Service
HEI--Healthy Eating Index
HMI--Healthy Meals Incentives
ICN--Institute of Child Nutrition
NASEM--National Academies of Science, Engineering, and Medicine
NSLA--National School Lunch Act
NSLP--National School Lunch Program
SBP--School Breakfast Program
SFSP--Summer Food Service Program
SNAP--Supplemental Nutrition Assistance Program
SMP--Special Milk Program
SY--School Year
USDA--U.S. Department of Agriculture

Section 1: Background

    On February 7, 2023, the U.S. Department of Agriculture (USDA) 
published Child Nutrition Programs: Revisions to Meal Patterns 
Consistent With the 2020 Dietary Guidelines for Americans \1\ (``2023 
proposed rule'') to update the school meal pattern requirements based 
on a comprehensive review of the Dietary Guidelines for Americans, 
2020-2025 (Dietary Guidelines), robust stakeholder input on the school 
meal patterns, and lessons learned from prior rulemakings.\2\ USDA is 
finalizing that proposed rule, with some modifications based on public 
input. This final rule is the next step in an ongoing effort toward 
healthier school meals that USDA and the broader school meals community 
have been partnering on for well over a decade.
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    \1\ Child Nutrition Programs: Revisions to Meal Patterns 
Consistent With the 2020 Dietary Guidelines for Americans (88 FR 
8050, February 7, 2023). Available at: https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for.
    \2\ 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/.
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    Separately, on January 23, 2020, USDA published a proposed rule, 
Simplifying Meal Service and Monitoring Requirements in the National 
School Lunch and School Breakfast Programs (``the 2020 proposed 
rule'').\3\ As noted in the 2023 proposed meal pattern rule, based on 
public comment, USDA is finalizing certain meal pattern provisions from 
the 2020 proposed rule in this final rule.\4\ The following sections 
address rule provisions that were included in the 2020 proposed rule:
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    \3\ Simplifying Meal Service and Monitoring Requirements in the 
National School Lunch and School Breakfast Programs (85 FR 4094, 
January 23, 2020). Available at: https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school.
    \4\ Other provisions of the 2020 proposed rule related to 
program monitoring were finalized in Child Nutrition Program 
Integrity (88 FR 57792, August 23, 2023). Available at: https://www.federalregister.gov/documents/2023/08/23/2023-17992/child-nutrition-program-integrity.

 Section 6: Meats/Meat Alternates at Breakfast
 Section 12: Beans, Peas, and Lentils at Lunch
 Section 14: Meal Modifications
 Section 15: Clarification on Potable Water Requirements
 Section 16: Synthetic Trans Fats

    Through this rulemaking, USDA is exercising broad discretion 
authorized by Congress to administer the school

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lunch and breakfast programs and ensure meal patterns ``are consistent 
with the goals of the most recent'' Dietary Guidelines.\5\ See 42 
U.S.C. 1752, 1758(a)(1)(B), 1758(k)(1)(B), 1758(f)(1)(A), and 
1758(a)(4)(B). Consistent with its historical position, USDA interprets 
``consistent with the goals of'' the Dietary Guidelines to be a broad, 
deferential phrase that requires consistency with the ultimate 
objectives of Dietary Guidelines but not necessarily the adoption of 
the specific consumption requirements or specific quantitative 
recommendations in the Dietary Guidelines. Accordingly, through this 
final rule, USDA is working to ensure an appropriate degree of 
consistency between school meal patterns and the Dietary Guidelines by 
considering operational feasibility and the ongoing recovery from the 
impacts of COVID-19, while also ensuring schools can plan appealing 
meals that encourage consumption and intake of key nutrients that are 
essential for children's growth and development.
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    \5\ The Dietary Guidelines, 2020-2025 provide four overarching 
recommendations: (1) Follow a healthy dietary pattern at every life 
stage. (2) Customize and enjoy nutrient-dense food and beverage 
choices to reflect personal preferences, cultural traditions, and 
budgetary considerations. (3) Focus on meeting food group needs with 
nutrient-dense foods and beverages and stay within calorie limits. 
(4) Limit foods and beverages higher in added sugars, saturated fat, 
and sodium, and limit alcoholic beverages.
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    This rulemaking updates current meal pattern requirements, which 
were most recently updated in SY 2022-2023 through the final rule, 
Child Nutrition Programs: Transitional Standards for Milk, Whole 
Grains, and Sodium (``the transitional standards rule''). USDA intended 
for the transitional standards rule to serve as a bridge, providing 
immediate relief as schools returned to traditional school meal service 
following extended use of COVID-19 meal pattern flexibilities. A 
detailed overview of the transitional standards rule, USDA's 
stakeholder engagement campaign, and other factors considered in the 
proposed rule development can be found in the 2023 proposed rule 
preamble.\6\ With this rule, USDA intends to further align school meal 
nutrition requirements with the goals of the Dietary Guidelines, 2020-
2025. This effort is described in greater detail, as informed by public 
comments on the proposed rule, throughout this preamble.
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    \6\ Child Nutrition Programs: Revisions to Meal Patterns 
Consistent With the 2020 Dietary Guidelines for Americans (88 FR 
8050, February 7, 2023). Available at: https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for.
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Phased-In Implementation

    For most children, school meals are the healthiest meals they 
consume in a day,\7\ and USDA research has found that school meals 
contribute positively to the diet quality of all participating 
students.\8\ However, there is still room for improvement. For example, 
the Dietary Guidelines for Americans, 2020-2025 indicates that about 70 
to 80 percent of school children exceed the recommended daily limit of 
added sugars.\9\ Research suggests that among adolescents, certain poor 
dietary behaviors--such as skipping breakfast and infrequent 
consumption of fruits and vegetables--worsened during the COVID-19 
pandemic.\10\ Updating the school meal patterns is one strategy to 
increase healthy dietary behaviors among school children for the long 
term. Many children rely on school meals for more than half of their 
food each school day, so even small nutritional improvements can make a 
difference.\11\
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    \7\ 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.
    \8\ ``While USDA school meals were bigger contributors to the 
caloric intakes of students from less food-secure households, they 
contributed positively to the diet quality of all participating 
students . . . For both food-insecure and food-secure students, the 
average HEI scores for non-school foods were between 55 and 57, 
whereas school foods scored between 79 and 81. School foods were 
particularly noteworthy as sources of fruit, dairy, and whole 
grains.'' U.S. Department of Agriculture. USDA School Meals Support 
Food Security and Good Nutrition. May 3, 2021. Available at: https://www.ers.usda.gov/amber-waves/2021/may/usda-school-meals-support-food-security-and-good-nutrition/.
    \9\ See ``Percent Exceeding Limits of Added Sugars, Saturated 
Fat, and Sodium'' on pages 79, 82, and 85. 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/.
    \10\ Michael SL, Jones SE, Merlo CL, et al. Dietary and Physical 
Activity Behaviors in 2021 and Changes from 2019 to 2021 Among High 
School Students--Youth Risk Behavior Survey, United States, 2021. 
MMWR Suppl 2023;72(Suppl-1):75-83. DOI: http://dx.doi.org/10.15585/mmwr.su7201a9.
    \11\ 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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    At the same time, USDA understands that changes to the meal 
patterns need to be gradual and predictable to give child nutrition 
program operators and children time to adapt, and to allow industry 
time to develop new products. This final rule responds to stakeholder 
input by building in plenty of time for State agencies, school 
nutrition professionals, and other program operators to successfully 
implement the required changes. For example, as discussed in Section 2: 
Added Sugars, USDA is gradually phasing in the product-based and weekly 
limits for added sugars in the school meal programs. As discussed in 
Section 5: Sodium, this final rule gives schools and manufacturers even 
more time to reduce sodium compared to the proposed rule. As 
recommended by numerous stakeholders, it also commits to examining 
sodium reduction in school meals and assessing the potential impact of 
these reductions on program operations and student participation. This 
rulemaking does not make changes to the current whole grain 
requirements for school meals and continues to allow schools to offer 
flavored milk, subject to new added sugars limits, to all K-12 
students. Although USDA considered alternatives for the whole grain and 
flavored milk requirements, based on stakeholder input, USDA determined 
that maintaining the current requirements would best position schools 
and students for success.
    Other changes in this rule simplify program regulations and provide 
child nutrition program operators more flexibility to successfully plan 
and prepare meals. These changes will be implemented on a quicker 
timeline, as they provide optional administrative or operational 
flexibilities but do not require operators to change menus or 
operations. For example, this rulemaking makes it easier for schools to 
offer meats/meat alternates at breakfast by removing the minimum grains 
requirement. It removes the limit for nut and seed crediting at 
breakfast, lunch, and supper in the child nutrition programs, making it 
easier for operators to offer vegetarian meals. This rulemaking also 
makes it easier for program operators to purchase local foods for the 
child nutrition programs by allowing ``locally grown, raised, or 
caught'' to be used as procurement specifications for unprocessed or 
minimally processed food items.
    Each provision of this rule, along with its implementation date, is 
discussed in greater detail throughout this preamble. A chart outlining 
each regulatory change and its implementation date is included in 
Section 21: Summary of Changes.

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USDA Support for Child Nutrition Programs

    USDA is incredibly grateful for the dedication of child nutrition 
program operators who serve children healthy meals with kindness and 
care. USDA understands that some program operators continue to face 
high food costs and supply chain issues. The Department is committed to 
continuing to provide program operators with support to help them 
succeed.
    USDA is making a $100 million \12\ investment in the Healthy Meals 
Incentives (HMI) Initiative, which is dedicated to improving the 
nutritional quality of school meals through food systems 
transformation, school food authority recognition and technical 
assistance, the generation and sharing of innovative ideas and tested 
practices, and grants. As part of a cooperative agreement to develop 
and implement USDA's HMI Initiative, Action for Healthy Kids (AFHK) has 
awarded nearly $30 million in grants to 264 small and/or rural school 
food authorities across 44 States and the District of Columbia. These 
school food authorities will use funding to modernize their operations 
and provide more nutritious meals to students. Additionally, AFHK is 
offering Recognition Awards to celebrate and spotlight school food 
authorities who use innovative practices, student and community 
engagement activities, and other strategies to provide meals that are 
consistent with the Dietary Guidelines for Americans, 2020-2025.
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    \12\ U.S. Department of Agriculture. USDA Launches $100 Million 
Healthy School Meals Initiative, Announces Grant Program for Rural 
Schools. September 23, 2022. Available at: https://www.fns.usda.gov/news-item/fns-0010.22.
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    USDA also provides support to schools through its annual Patrick 
Leahy Farm to School Grant Program. These funds support a wide range of 
farm to school activities designed to improve access to local foods in 
eligible schools from training, planning, and developing partnerships 
to creating new menu items, expanding local supply chains, offering 
taste tests to children, purchasing equipment, planting school gardens, 
and organizing field trips to agricultural operations.
    Finally, USDA will continue to provide technical assistance to 
State agencies, schools, and other program operators to ensure they 
have the guidance and support they need to successfully implement this 
rule. USDA will release updated policy guidance and will host a series 
of webinars to provide a detailed overview of this rulemaking. In 
addition, communications resources related to this rulemaking are 
available on the USDA Food and Nutrition Service website.\13\
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    \13\ U.S. Department of Agriculture Food and Nutrition Service. 
Available at: https://www.fns.usda.gov/.
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Federal Strategies To Reduce Sodium and Added Sugars in the Food Supply

    USDA recognizes that schools and child and adult care institutions 
are part of the broader food environment. In order to successfully make 
improvements to the child nutrition program meal patterns, stakeholders 
have emphasized that similar improvements must be made to the broader 
food environment. For example, stakeholders have suggested that 
children are more likely to accept lower sodium school meals if the 
meals they consume outside of school are lower in sodium. Research has 
shown that consumer preferences and expectations for salty tastes can 
adjust as dietary intake changes.\14\
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    \14\ The Food and Drug Administration. Memo: Salt Taste 
Preference and Sodium Alternatives. 2016. Available at: https://www.regulations.gov/document/FDA-2014-D-0055-0152.
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    To that end, other Federal agencies are supporting efforts to 
improve dietary behaviors among the U.S. population. For example, the 
Food and Drug Administration (FDA) is taking an iterative approach to 
gradually reduce sodium in the U.S. food supply that includes 
establishing voluntary sodium targets for industry, monitoring and 
evaluating progress, and engaging with stakeholders. The FDA is 
especially encouraging adoption of the voluntary targets by food 
manufacturers whose products make up a significant proportion of 
national sales in one or more food categories and restaurant chains 
that are national and regional in scope.\15\ These efforts are 
discussed in greater detail in Section 5: Sodium.
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    \15\ The Food and Drug Administration. Sodium Reduction. 
Available at: www.fda.gov/SodiumReduction.
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    The FDA is also committed to reducing added sugars in the U.S. food 
supply and in individual's diets. In 2016, FDA issued a final rule \16\ 
updating the Nutrition Facts label, which requires, in part, a 
declaration of the added sugars in a serving of a product and the 
percent Daily Value (% DV) for added sugars. Manufacturers with $10 
million or more in annual sales were required to update their labels by 
January 1, 2020; manufacturers with less than $10 million in annual 
food sales were required to update their labels by January 1, 2021.
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    \16\ Food Labeling: Revision of the Nutrition and Supplement 
Facts Labels (81 FR 33742, May 27, 2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels.
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    Additionally, following the 2022 White House Conference on Hunger, 
Nutrition, and Health, the White House released a National Strategy 
\17\ that highlighted that the intake of added sugars for most 
Americans is higher than what is recommended by the Dietary Guidelines 
and included several FDA initiatives to accelerate efforts to empower 
individuals with information and create a healthier food supply. In 
November 2023, FDA, in collaboration with USDA and the U.S. Department 
of Health and Human Services, held a virtual public meeting and 
listening sessions entitled, ``Strategies to Reduce Added Sugars 
Consumption in the United States.'' This public meeting was a 
commitment made in the National Strategy and connected Federal 
agencies, communities, and private industry to explore different 
tactics for reducing added sugars in the U.S. food supply and in 
individuals diets. Presentations during this meeting provided a 
background on added sugars, discussed strategies for reducing added 
sugars by other countries, and highlighted approaches to increase 
engagement and education on added sugars. This meeting was accompanied 
by two days of facilitated listening sessions where participants 
offered feedback and recommendations for next steps on proposed 
strategies.
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    \17\ Biden-Harris Administration National Strategy on Hunger, 
Nutrition, and Health, September 2022. Available at: https://www.whitehouse.gov/wp-content/uploads/2022/09/White-House-National-Strategy-on-Hunger-Nutrition-and-Health-FINAL.pdf.
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    The U.S. Department of Health and Human Service's Office of Disease 
Prevention and Health Promotion's Healthy People 2030 initiative also 
includes a focus on reducing consumption of added sugars and sodium in 
individuals aged 2 years and older.\18\ As detailed in Section 2: Added 
Sugars and Section 5: Sodium, the Dietary Guidelines, which are updated 
and jointly released by the USDA and the Department of Health and Human 
Services, recommend limiting foods and beverages higher in added sugars 
and sodium. Specifically, the Dietary Guidelines recommend that added 
sugars make up less than 10 percent of calories per day for individuals 
age 2 years and older. The Dietary Guidelines also recommend consuming 
less than 2,300 milligrams of sodium per day--

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and even less for children younger than age 14.\19\
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    \18\ U.S. Department of Health and Human Service's Office of 
Disease Prevention and Health Promotion. Health People 2030. 
Available at: https://health.gov/healthypeople.
    \19\ 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/.
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    In addition, the historic White House Conference on Hunger, 
Nutrition, and Health inspired actions to support a whole of society 
approach to improving nutrition and health. Over $8 billion in public- 
and private-sector commitments were made to improve food and nutrition 
security, promote healthy choices, and improve physical activity. USDA 
expects that, when carried through, the commitments made as part of the 
White House Conference will support improvements to the broader food 
environment, thereby supporting efforts to improve nutrition in school 
and child and adult care settings.
    For example, the private sector made the following commitments in 
fall 2022: \20\
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    \20\ The White House. FACT SHEET: The Biden-Harris 
Administration Announces More Than $8 Billion in New Commitments as 
Part of Call to Action for White House Conference on Hunger, 
Nutrition, and Health. September 28, 2022. Available at: https://www.whitehouse.gov/briefing-room/statements-releases/2022/09/28/fact-sheet-the-biden-harris-administration-announces-more-than-8-billion-in-new-commitments-as-part-of-call-to-action-for-white-house-conference-on-hunger-nutrition-and-health/.
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     Danone North America committed to prioritizing new 
reduced-sugar, low-sugar, and no-added-sugar options in its children's 
products and pledged that 95 percent of these products will contain 
less than 10 grams of total sugar per 100 grams of food product by 
2030.
     The National Restaurant Association committed to expand 
its Kids Live Well program to 45,000 additional restaurants and food 
service locations. Kids Live Well is a voluntary initiative to help 
restaurants offer healthier meal options for children that meet added 
sugars, sodium, and calories thresholds established by the latest 
nutrition science.
     Tyson Foods committed to reformulating and improving the 
nutritional value of its prepared foods portfolio, with a focus on 
reducing sodium.
     Walgreens committed to increasing the selection of fresh 
food in its stores by 20 percent, including a greater variety of fresh 
produce, and implementing new solutions to highlight healthy 
ingredients and further reduce harmful ones.
    The strides made in school nutrition over the past decade 
demonstrate that healthier school meals are possible when everyone who 
plays a part--food industry, school nutrition professionals, USDA, and 
others--work together toward the common goal of improving children's 
health. This includes USDA continuing to do its part to ensure schools 
and other child nutrition program operators have the support they need 
to successfully implement this rulemaking. USDA recognizes that child 
nutrition program operators have a challenging job and appreciates 
their tireless dedication to the children in their care. USDA is 
continually looking for ways to better support program operators who 
provide our Nation's children with nutritious meals and snacks. The 
Department welcomes input from stakeholders on what additional guidance 
and support State agencies, schools, and other program operators will 
need to successfully implement this rulemaking.

Overview of Public Comments and USDA Response

    USDA appreciates public interest in the proposed rule. USDA 
initially provided a 60-day public comment period (February 7, 2023, 
through April 10, 2023). Based on stakeholder requests \21\ for 
additional time to review the rule and assess its impact, USDA extended 
the public comment period by 30 days. During the 90-day comment period 
(February 7, 2023, through May 10, 2023), USDA received more than 
136,000 comments. Of the total, about 125,000 were form letters from 46 
form letter campaigns, and about 5,000 were unique submissions. An 
additional 6,400 were duplicate or non-germane submissions. USDA 
received public comments from State agencies, school nutrition 
professionals, advocacy groups, industry respondents, professional 
associations, school districts, CACFP sponsoring organizations, 
dietitians, and individuals, including students, parents and guardians, 
grandparents, and other caregivers. Overall, over 23,000 respondents, 
including over 700 unique submissions, supported the proposed rule in 
its entirety. Over 6,000 respondents, including over 1,000 unique 
submissions, opposed the proposed rule in its entirety.
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    \21\ USDA received requests to extend the proposed rule comment 
period from the American Commodity Distribution Association and the 
Urban School Food Alliance and from Senator Boozman and 
Representative Foxx. The letters are available at: https://www.regulations.gov/comment/FNS-2022-0043-2915 and https://www.regulations.gov/comment/FNS-2022-0043-12391.
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    Many school nutrition professionals supported provisions of the 
rule that provide menu planners more flexibility, and provisions that 
maintain requirements that menu planners have already successfully 
implemented. For example, a national organization representing tens of 
thousands of school nutrition professionals offered support for the 
following provisions that USDA ultimately finalized or committed to in 
this final rule:
     Maintaining the current requirement allowing all schools 
to offer fat-free and low-fat milk, flavored and unflavored, to K-12 
students.
     Maintaining the current requirement that at least 80 
percent of weekly grains offered in school meals are whole grain-rich.
     Committing to conducting a study on potential associations 
between sodium reduction and student participation.
     Allowing schools more flexibility to offer meats/meat 
alternates in place of grains at breakfast.
     Allowing tribally operated schools, schools operated by 
the Bureau of Indian Education, and schools serving primarily American 
Indian or Alaska Native children to serve vegetables to meet the grains 
requirement.
     Codifying in regulation that traditional Indigenous foods 
may be served in reimbursable school meals.
     Allowing nuts and seeds to credit for the full meats/meat 
alternates component in all child nutrition programs and meals.
     Exempting bean dip from the total fat standard in Smart 
Snacks regulations.
     Allowing State agencies discretion to make exceptions to 
the degree requirement for school nutrition directors hired in medium 
and large districts.
    USDA worked in collaboration with a data analysis company to code 
and analyze the public comments using a commercial, web-based software 
product. The Summary of Public Comments report is available under the 
Browse Documents tab in docket FNS-2022-0043. All comments are posted 
online at https://www.regulations.gov.\22\
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    \22\ See: Docket FNS-2022-0043. Child Nutrition Programs: 
Revisions to Meal Patterns Consistent with the 2020 Dietary 
Guidelines for Americans. Available at: https://www.regulations.gov/docket/FNS-2022-0043.
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    The following paragraphs describe general themes from the public 
comments. Many respondents also provided feedback on the specific 
proposals. This specific feedback is included in the subsequent 
sections of the preamble, as applicable.
Public Comments: Dedication of School Nutrition Professionals
    Several respondents expressed appreciation for the efforts of 
school

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nutrition professionals. An advocacy group noted that school nutrition 
professionals provide balanced, nutritious meals to children, promoting 
academic success and supporting the entire school community's efforts 
to enrich the lives of students. Another respondent emphasized that 
school nutrition professionals are deeply caring people who are 
invested in children's health and wellbeing. An advocacy group agreed, 
noting that school nutrition professionals go ``above and beyond'' to 
keep children nourished; as an example, one respondent described 
efforts at their school to create menus that are nutritionally 
balanced, flavorful, and cater to student preferences. When considering 
options for the final rule, one dietitian urged USDA to listen to the 
school nutrition professionals who ``do the work'' every day by 
providing meals to children.
    Respondents also commended successful implementation of school meal 
pattern improvements established under the Healthy Hunger-Free Kids 
Act. For example, one advocacy group reported that the updated 
nutrition standards enhanced the nutritional quality of meals and 
increased student participation. Another advocacy group noted that 
school nutrition professionals have worked tirelessly to reduce sodium, 
calories, and fat; to introduce students to whole grain foods; and to 
increase fruits and vegetables in school meals. Another respondent was 
proud of efforts made by school nutrition professionals thus far, 
emphasizing that school meals are the healthiest meals that most 
students receive each day. A joint response from several elected 
officials stated that strong school nutrition requirements are ``one of 
the most important public health achievements in a generation.'' This 
response also noted that school cafeterias across the country are 
``leading the way to serving healthy, delicious, and culturally 
relevant foods'' to children.
    USDA Response: USDA appreciates and agrees with public comments 
that cited the important work of school nutrition professionals. The 
Department values the vital work that school nutrition professionals 
and other child nutrition program operators do every day to keep our 
Nation's children nourished and healthy. In this final rule, USDA 
incorporated feedback from individuals with firsthand experience 
operating the child nutrition programs. For example, this feedback is 
reflected in Section 3A: Flavored Milk, where USDA considered 
operational challenges that respondents raised in response to the 
proposal that would have applied different milk requirements across 
grade levels. USDA also considered child nutrition program operator 
feedback when determining implementation dates for the provisions of 
this rule, including in Section 5: Sodium.
Public Comments: Nutrition and Health
    Over 11,000 respondents cited the need for strong nutrition 
requirements. For example, an advocacy group suggested that aligning 
the school meal nutrition requirements with the goals of the Dietary 
Guidelines ``sets our students up for lifelong success.'' Other 
respondents emphasized the importance of strong nutrition requirements 
to children's academic achievement and overall wellbeing. A form letter 
campaign stated that strong nutrition requirements can help to address 
health disparities and improve nutrition equity. Another respondent 
agreed, maintaining that the child nutrition programs are important 
tools in addressing health disparities and advancing nutrition security 
among communities of color. An advocacy group emphasized the importance 
of nutritious meals in schools and child care settings, noting that 
these meals often represent a significant portion of children's food 
intake. This respondent argued that continued improvement in the meal 
patterns could reduce children's risk for diet-related diseases. 
Another advocacy group agreed, stating that the school meal programs 
provide more than half of some students' calories and are often the 
healthiest sources of food for school children. An industry respondent 
described school meals as a nutrition ``success story'' and stated that 
good nutrition is essential to children's growth, learning, and 
development. An advocacy group emphasized that the proposed evidence-
based standards will ``make school meals even healthier.''
    Some respondents, including a form letter campaign, encouraged USDA 
to go further; for example, by implementing sodium reductions beyond 
those proposed in the rule. Respondents also encouraged USDA to 
strengthen the whole grains proposal, by requiring all grains offered 
in school meals to be whole grain-rich.\23\ Others urged USDA to adopt 
a swifter timeline for implementation; for example, one advocacy group 
recommended that USDA ``implement the strongest nutrition standards on 
the fastest timeline possible.'' A few respondents, including an 
advocacy group, encouraged USDA to update the Summer Food Service 
Program meal patterns to more closely align with the goals of the 
Dietary Guidelines, including by serving more fruits, vegetables, and 
whole grains. These respondents emphasized the importance of providing 
children with healthy, high-quality meals year-round.
---------------------------------------------------------------------------

    \23\ 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.
---------------------------------------------------------------------------

    USDA Response: USDA appreciates public comments that discussed the 
importance of strong, science-based nutrition requirements and the 
positive impact on children's health. The Department agrees with 
respondents that asserted that meals served in child nutrition programs 
contribute to healthy dietary patterns and improved dietary outcomes. 
In this final rule, USDA has considered these important factors, along 
with the importance of ensuring that the meal patterns are practical 
and achievable for schools. For example, this final rule will continue 
to reduce sodium in school meals, while taking a gradual approach to 
implementation to give schools, students, and the food industry time to 
adapt to the changes. The Department also acknowledges comments that 
requested more whole grains in school meals; instead, this final rule 
continues the requirement that the majority of grains offered be whole 
grain-rich, while providing schools some flexibility to offer other 
grains. USDA remains committed to its statutory obligation to establish 
nutrition requirements for school meals that are consistent with the 
goals of the Dietary Guidelines in efforts to improve the nutritional 
quality of program meals serve to the Nation's children. While USDA 
appreciates public comments regarding the Summer Food Service Program, 
extensive updates to the Summer Food Service Program meal pattern are 
outside the scope of this rulemaking.
Public Comments: Student Participation
    Many respondents expressed concern that the proposed changes could 
negatively impact student participation and consumption of meals. Some 
respondents suggested that, if the proposed rule was finalized, 
students would choose to consume a lunch from home or elsewhere instead 
of participating in the school meal programs. These respondents argued 
that this would result in non-participating students consuming a meal 
that is less nutritious than school meals offered under the current 
requirements. Other respondents maintained that school nutrition 
programs would suffer if student participation declines.

[[Page 31967]]

    Respondents also raised concerns that the proposed limits for added 
sugars and sodium could make school meals less appealing to students. 
For example, an industry respondent asserted that the proposed added 
sugars and sodium limits would negatively impact the taste of foods 
that children enjoy. However, an advocacy group noted that students and 
families support improving the nutritional quality of school meals, 
citing the role school meals play in student academic achievement and 
health. A joint comment from several elected officials suggested that 
children enjoy healthier school meals, and that the amount of food 
wasted in schools has not changed since the nutrition requirements were 
updated in 2012.
    USDA Response: Although USDA does not expect that updated nutrition 
requirements would negatively impact student participation in the 
school meal programs,\24\ the Department acknowledges respondent 
concerns about the importance of maintaining student participation. The 
Department strives to advance nutrition security while also ensuring 
that school meals are appealing and enjoyable to students. The changes 
finalized in this rule thoughtfully consider both concerns by gradually 
phasing in required changes, such as the added sugars limits and sodium 
reduction. This phased-in approach will give program operators and 
children time to implement and adapt to the changes. Additionally, as 
noted in Section 5: Sodium, as part of this rulemaking, USDA has 
committed to conducting a study on potential associations between 
sodium reduction and student participation.
---------------------------------------------------------------------------

    \24\ According to USDA research conducted following 
implementation of the 2012 final rule, ``There was a positive and 
statistically significant association between student participation 
in the NSLP and the nutritional quality of NSLP lunches, as measured 
by the HEI-2010. Rates of student participation were significantly 
higher in schools with HEI-2010 scores in the third and highest 
quartiles (that is, the top half) of the distribution compared to 
the lowest quartile.'' See page 38. U.S. Department of Agriculture, 
Food and Nutrition Service, Office of Policy Support, School 
Nutrition and Meal Cost Study Summary of Findings. Available at: 
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
---------------------------------------------------------------------------

Public Comments: Product Availability
    Numerous respondents argued that the proposed meal pattern changes 
would force vendors out of the child nutrition market, making it more 
difficult for schools to find products needed to comply with USDA meal 
requirements. Several respondents expressed concern about increased 
costs, procurement challenges, and reduced options for school breakfast 
under the proposed rule. A joint comment from a group of elected 
officials agreed, arguing that the proposed changes could lead to 
``increased complexity'' in school food purchasing, decreasing the 
number of options available to schools and forcing schools to compete 
for a limited supply of specialized foods. Respondents also expressed 
concern about ongoing supply chain issues and food-price inflation. One 
industry respondent suggested that rather than implementing new 
requirements, USDA should maintain the current requirements and teach 
students how to make healthy choices through nutrition education.
    A school food service director stated that procurement would be a 
challenge under the proposed rule and suggested that it takes ``a few 
years'' for manufacturers to catch up with new regulations. This 
respondent also suggested manufacturers do not dedicate as much space 
to school-specific items in their warehouses, which impacts product 
availability. An advocacy group argued that it takes industry three to 
five years, and a significant amount of money, to reformulate ``any 
given product.'' This respondent also pointed out that the K-12 sector 
tends to be the least lucrative market for the food industry. Another 
advocacy group agreed, arguing that the cost of producing and stocking 
specialized K-12 menu items is ``too high,'' and the demand for these 
products on the commercial market is ``too low.'' A State agency also 
expressed concern about proposed implementation timeframes, noting that 
manufacturer and distributor capabilities have not yet returned to pre-
pandemic levels. A form letter campaign encouraged USDA to work with 
the food industry to ensure product availability, particularly for 
lower sodium products. One respondent stated that school kitchens are 
understaffed, and school nutrition professionals rely heavily on food 
manufacturers to provide meals for students. A school district raised 
concerns about increased pressure for scratch cooking; while this 
respondent acknowledged they would ``love for more scratch options to 
be served,'' they did not view this as a realistic option given current 
staffing challenges.
    Respondents also cited the importance of supporting local farmers 
and producers and helping children learn about where their food comes 
from. One advocacy group cited the benefits of local food systems, 
which they argued stimulate local economies and provide reliable 
product availability during supply chain disruptions. Respondents 
encouraged USDA to consider equity and inclusion in establishing 
regulatory requirements; for example, an advocacy group suggested that 
USDA consider the broader food system and supply chains, including farm 
workers and other people employed in the food system. This respondent 
supported efforts to create a fair and sustainable agricultural 
economy. Another respondent advocated for policies that encourage child 
nutrition operators to source from socially disadvantaged producers. An 
advocacy group suggested that purchases made through the child 
nutrition programs should prioritize respect, equity, and inclusion 
across the food supply chain. This respondent asserted that supporting 
local and regional foods systems, including by strengthening support 
for locally owned agricultural and food processing operations, may 
create more diversified and resilient supply chains. While offering 
support for the proposed geographic preference provision, some 
respondents suggested operators would need more financial support to 
purchase local foods, especially in the CACFP.
    USDA Response: USDA recognizes that many stakeholders expressed 
concerns about product availability and understands the impact of 
product availability and cost on the operation of the child nutrition 
programs, as well as challenges posed by staffing constraints. At the 
same time, the Department appreciates public comments that cited 
continuous industry efforts to develop nutritious foods for child 
nutrition programs, and many of the provisions of this rule incorporate 
input from industry respondents. For example, USDA agrees with public 
comments that stated there are products already available that meet the 
product-based limits for added sugars, which aligns with data collected 
by USDA.\25\ USDA expects that ongoing industry efforts to develop 
nutritious foods will support product availability for child nutrition 
programs. USDA considered each of these factors when developing this 
final rule; for example, by moving forward with important changes while 
providing ample time for implementation. As detailed in Section 2: 
Added Sugars and Section 5: Sodium, USDA is providing about three years 
for implementation of the weekly added sugars limit and sodium 
reduction in response to public comments that suggested it takes about

[[Page 31968]]

three years for manufacturers to reformulate products.
---------------------------------------------------------------------------

    \25\ U.S. Department of Agriculture Food and Nutrition Service, 
Office of Policy Support data collection of nutrition label 
information from major cereal and yogurt manufacturer K-12 and food 
service catalogs. Data were collected on 191 total cereal products 
and 110 total yogurt products. See Regulatory Impact Analysis.
---------------------------------------------------------------------------

Public Comments: Financial Challenges
    Many respondents emphasized the importance of investing in school 
nutrition programs financially. For example, respondents cited concerns 
about food cost, inflation, meal debt, and supply chain challenges. An 
advocacy group noted that many stakeholder concerns about the proposed 
rule are related to resource constraints. This respondent suggested 
financial pressures undermine the program's goals. Another advocacy 
group expressed appreciation for the HMI Initiative to support small 
and rural schools, and supported USDA's plans to provide technical 
assistance, share best practices, and encourage collaboration with the 
food industry. One State agency supported increased meal 
reimbursements, investments in kitchen equipment and infrastructure, 
and more training opportunities. Another respondent agreed, stating 
that the program reimbursement rates are ``simply not enough'' to cover 
food and labor costs, while others suggested schools would need extra 
supplies or funding to implement the updated meal patterns.
    USDA Response: USDA acknowledges public comments from program 
operators that emphasized that financial sustainability is critical for 
successful child nutrition program operations. USDA understands that 
schools and other program operators need support to succeed in 
implementing updated requirements. As part of this effort, USDA 
continues to provide high-quality, cost-effective foods through USDA 
Foods and various grant-funded opportunities. USDA has also provided 
significant additional financial resources to address specific needs, 
such as the $3.8 billion in supply chain assistance funds provided in 
fiscal years 2021, 2022, and 2023 to address product shortages and 
price increases experienced after the pandemic.\26\ While increasing 
the Federal reimbursement rates is beyond USDA's authority and would 
require Congressional action, the Department remains committed to 
providing support to child nutrition program operators.
---------------------------------------------------------------------------

    \26\ U.S. Department of Agriculture. FNS Actions to Address 
COVID-19 Related Supply Chain Disruptions. Available at: https://www.fns.usda.gov/supply-chain.
---------------------------------------------------------------------------

Public Comments: Practical and Durable Standards
    Numerous respondents discussed the need for attainable nutrition 
requirements. Some respondents asserted that certain proposals are 
impractical, or that the school nutrition programs cannot move beyond 
current meal pattern requirements. A handful of respondents suggested 
maintaining the transitional standards as the permanent school 
nutrition requirements, suggesting the transitional standards represent 
a ``middle ground.'' Many respondents recommended that USDA study the 
impact of the current meal pattern requirements prior to making any 
further changes.
    Respondents cited concerns about the broader food environment, 
arguing that schools are not solely to blame for children's excess 
consumption of added sugars and sodium. One respondent pointed out that 
when considering the full calendar year, many children consume more 
meals outside of school than in school. This respondent agreed that 
school meals contribute to children's health but emphasized the 
importance of improving food choices in other settings. Another 
respondent recommended that USDA focus on the ``food system as a 
whole'' and engage in a public health initiative to reduce added sugars 
and sodium in grocery store foods.
    Regarding implementation dates, one dietitian recommended that USDA 
delay implementation of any new requirements until 2027. This 
respondent suggested that additional time would allow school nutrition 
directors to educate staff on upcoming changes and allow industry to 
develop new food products. A school district agreed, describing the 
implementation timeframes for added sugars and sodium as ``a little 
rushed.'' Several respondents specifically recommended delaying 
implementation of any provisions that would impact CACFP. These 
respondents raised concerns about a lack of CACFP stakeholder 
engagement and the importance of providing the CACFP community ample 
time to prepare for the changes.
    Other respondents felt the proposed implementation timeframes were 
adequate. An advocacy group argued that the food industry could adapt 
to incremental implementation, which they noted was built into the 
proposed rule. A State agency agreed, suggesting that the proposed 
phased-in implementation would provide the opportunity to revise menu 
offerings, manage inventory, and offer technical assistance. A second 
State agency affirmed that the proposed implementation dates provide 
adequate lead time; however, this respondent also noted that timely 
publication of the final rule would be ``critical'' to allow for 
product reformulation, procurement, and menu planning. An advocacy 
group described USDA's phased-in approach as ``reasonable,'' stating 
that the proposed rule would improve school meals ``in a practical 
way.'' This respondent suggested that the proposed sodium limits, for 
example, would give schools time to plan, source, and test meals that 
meet the proposed limits. Another advocacy group that described the 
rule as ``scientifically sound and practical'' argued that the proposed 
rule would give schools time to implement the new requirements while 
also prioritizing children's health. A joint response from several 
elected officials maintained that the proposed rule included a 
``common-sense incremental approach to implementation, making it 
feasible for schools and the food industry to have success.'' An 
advocacy group supported the phased-in implementation for sodium but 
noted it would be ``incumbent'' upon manufacturers to reformulate 
products to ensure the limits would be effective.
    USDA Response: USDA recognizes that meaningful improvement in the 
nutritional quality of school meals is best achieved by nutrition 
requirements that are both ambitious and feasible. The Department also 
acknowledges public comments that suggested child nutrition program 
operators need time to successfully implement new requirements, and 
that feedback is reflected in this final rule. For example, this final 
rule gradually phases in certain requirements, such as the added sugars 
limits, to provide program operators time to make menu changes. 
Additionally, this final rule includes several provisions that provide 
menu planners with more options to create healthy meals; for example, 
by making it easier for schools to offer meats/meat alternates at 
breakfast (see Section 6: Meats/Meat Alternates at Breakfast). By 
incorporating valuable feedback from stakeholders into this final rule, 
the Department continues to put children's health at the forefront 
while also ensuring that the program requirements are achievable and 
set up schools and child and adult care institutions for success.
Public Comments: Other School Nutrition Comments
    Some respondents recommended other meal pattern requirements or 
offered suggestions for USDA to consider. One respondent suggested 
adding a requirement for ``healthy fats'' in school meals, while 
another recommended establishing a minimum fiber standard. Another 
respondent encouraged USDA to provide recipes, training, and nutrition 
education to

[[Page 31969]]

encourage schools to offer more seafood in school meals. Numerous 
respondents recommended that USDA restrict or limit the use of 
artificial or non-nutritive sweeteners in school meals. Others 
encouraged USDA to provide incentives for fresh fruits and vegetables, 
rather than restricting certain foods. A form letter campaign and 
numerous other respondents supported expanding access to vegetarian, 
vegan, or plant-based school meals. One respondent suggested 
implementing a plant-based protein requirement in school meals, while 
another encouraged schools to adopt a ``meat-free day.'' A few 
respondents noted that Black, Indigenous, and other People of Color 
(BIPOC) are three times as likely to follow a plant-based diet than 
white people and suggested that providing more plant-based meals would 
support equity in the school meal programs. Respondents also cited the 
importance of meeting cultural food preferences. For example, one 
advocacy group noted that food is ``socially and emotionally 
nurturing'' and emphasized the importance of meeting nutrition 
requirements as well as food preferences. Another advocacy group cited 
a research brief that suggested that ``enhancing the palatability and 
cultural appropriateness of meals'' offered would improve meal 
consumption.
    A few respondents, particularly those who operate multiple child 
nutrition programs, supported stronger alignment of the nutrition 
requirements for all program meal patterns. A student encouraged USDA 
to seek student perspectives on meal pattern requirements. This 
respondent suggested students who participate in the school meal 
programs would provide important perspectives on food waste, cultural 
relevance, and nutrition. Although outside the scope of this 
rulemaking, several respondents supported expanding access to free 
school meals and providing students with more time to eat school lunch. 
For example, one respondent noted that studies have shown that even 
modest increases in time to eat result in ``improved consumption, 
particularly of fruit and vegetables, and reduced food waste.''
    USDA Response: USDA appreciates public comments that provided 
additional feedback and suggestions for new requirements beyond what 
was proposed. Certain suggestions, such as adjusting the eligibility 
requirements for free meals or providing more time for children to eat 
their meals, are beyond USDA's authority. While USDA does not have 
authority to regulate the length of school meal periods, USDA 
encourages schools to provide children adequate seat time to consume 
their meals. USDA acknowledges public comments encouraging more plant-
based meals as a strategy to support equity in school meals. Meal 
pattern requirements are established to provide the foundation of well-
balanced meals, and USDA encourages program operators to develop menus 
that meet the needs of their diverse communities. This rulemaking 
provides more opportunities for schools to offer plant-based meals. In 
response to requests to streamline program requirements, USDA has 
endeavored to better align child nutrition program requirements in this 
rulemaking; for example, by aligning nut and seed crediting across all 
child nutrition programs and meals (see Section 11: Nuts and Seeds). 
While other suggestions outside the scope of this rulemaking, such as 
developing requirements for ``healthy fats'' and artificial sweeteners, 
are not included in the final rule, the Department remains committed to 
providing the technical assistance needed to enable schools to serve 
diverse, culturally diverse meals to meet the unique needs and 
preferences of their students.
Public Comments: Child and Adult Care Food Program
    Although the proposed rule primarily focused on revisions to the 
school meal patterns, the following proposals applied to CACFP:
     Added Sugars: USDA proposed updating the current CACFP 
total sugars limits for breakfast cereals and yogurt to added sugars 
limits, consistent with the proposed limits for breakfast cereals and 
yogurt in the school meal programs.
     Whole grains definition: USDA proposed adding a definition 
of ``whole grain-rich'' to CACFP regulations, consistent with the 
definition USDA proposed adding in school meal regulations.
     Menu Planning Options for American Indian and Alaska 
Native Students: USDA proposed to allow CACFP institutions and 
facilities serving primarily American Indian or Alaska Native children 
to substitute vegetables for grains. This proposal also applied to 
NSLP, SBP, and SFSP.
     Nuts and Seeds: USDA proposed to allow nuts and seeds to 
credit for the full meats/meat alternates component in all child 
nutrition program meals and snacks. This proposal applied to NSLP, SBP, 
SFSP, and CACFP.
     Geographic Preference: USDA proposed to expand geographic 
preference options by allowing ``locally grown, raised, or caught'' as 
procurement specifications for unprocessed or minimally processed food 
items in the child nutrition programs. This proposal applied to NSLP, 
SBP, SFSP, and CACFP.
     Miscellaneous Changes: USDA proposed to change the name of 
the ``meats/meat alternates'' meal component to ``protein sources'' in 
CACFP, consistent with the proposed change in NSLP and SBP. USDA also 
proposed a few other minor terminology changes and meal pattern table 
revisions that impact CACFP.
     Proposals from Prior USDA Rulemaking: USDA signaled its 
intent to finalize a prior proposal that would update meal modification 
regulations for disability and non-disability reasons, impacting NSLP, 
SBP, and CACFP. USDA signaled its intent to finalize a prior proposal 
regarding a technical correction for nutrient requirements for fluid 
milk substitutes, impacting NSLP, SMP, SBP, and CACFP.
    With the exception of the proposal to change the name of the 
``meats/meat alternates'' meal component to ``protein sources'' in 
CACFP, which is not finalized, all of the proposed changes to CACFP are 
finalized in this rulemaking.
    USDA received over 90 comments from CACFP sponsoring organizations. 
USDA also received comments from advocacy groups representing the CACFP 
community, and hundreds of form letters from individuals who are a part 
of the CACFP community. An advocacy group recommended that USDA engage 
CACFP stakeholders before finalizing and implementing the rule. This 
respondent argued such engagement is necessary to understand the rule's 
impacts on CACFP, including costs, product availability, and 
nutritional quality. Another advocacy group emphasized the importance 
of supporting efforts to stabilize the CACFP workforce. This respondent 
recommended delaying implementation to ensure that the CACFP community 
has time to prepare for implementation and provide input on the 
proposed changes.
    Specific feedback from the CACFP community is detailed in the 
relevant sections throughout this preamble. At a high level, concerns 
raised by the CACFP community include:
     Potential impact on training, technical assistance, and 
resource development, especially related to the proposed terminology 
change for the meats/meat alternates component.
     Potential costs associated with updating websites, 
materials, menus, and recipes.
     The need for implementation support for the proposed 
changes, such as the need for tools and resources to

[[Page 31970]]

successfully implement the proposed added sugars limits for yogurt and 
cereal. Specifically, one advocacy group recommended USDA develop an 
``approved'' list of products that could be offered under the added 
sugars limits.
     An overall concern that the proposed rule lacked a ``CACFP 
lens,'' and therefore did not adequately consider its potential impact 
on the CACFP community.
    The CACFP community also raised concerns about other challenges 
facing operators that were outside the scope of the proposed rule. For 
example, respondents noted ongoing pandemic recovery, staff shortages, 
and vendor losses, and the loss of pandemic-era funding and 
flexibilities. Respondents emphasized the importance of supporting 
CACFP, which one advocacy group described as a ``financial and 
nutritional lifeline'' for many children and families. Other 
respondents agreed, noting that CACFP plays a ``vital role in 
supporting good nutrition'' and providing ``quality affordable child 
care'' for families.
    USDA Response: USDA appreciates public comments received on behalf 
of the CACFP community and agrees that CACFP operators play a vital 
role in supporting the goals of child nutrition programs. USDA 
acknowledges that the listening sessions conducted prior to the 
development of the proposed rule were primarily focused on nutrition 
requirements for school meal programs, given that the majority of the 
provisions in the proposed rule relate to NSLP and SBP. However, many 
of the organizations that USDA engaged with through these listening 
sessions also advocate on behalf of CACFP and/or SFSP operators, in 
addition to school meals. USDA also received over 8,000 comments on the 
transitional standards rule, including comments related to CACFP, which 
were considered in the development of the proposed rule. Public 
comments submitted in response to the 2023 proposed rule, including 
those submitted by the CACFP community, were also crucially important 
to the development of this final rule. As emphasized throughout the 
proposed rule, USDA greatly values this feedback. USDA has responded to 
the CACFP community's feedback in the subsequent sections of the rule, 
especially Section 2: Added Sugars and Section 20: Miscellaneous 
Changes.
Public Comments: Supplemental Nutrition Assistance Program
    Several respondents raised concerns about the Supplemental 
Nutrition Assistance Program, or SNAP, a USDA Federal assistance 
program. While comments related to SNAP are outside the scope of this 
rulemaking, USDA is providing a summary of the comments here. 
Respondents were concerned that SNAP does not impose the same nutrition 
requirements as USDA's child nutrition programs. These respondents 
asserted that students, including those participating in SNAP, are 
exposed to unhealthy food outside of school. Some respondents argued 
that all Federal nutrition programs, including SNAP, should have the 
same nutrition requirements. For example, a dietitian suggested that if 
USDA finalizes added sugars limits for school meals, those limits 
should also apply to SNAP.
    USDA Response: USDA appreciates public comments about SNAP and its 
relation to the Department's other Federal assistance programs, 
including the child nutrition programs. USDA's mission is to increase 
food security and reduce hunger by providing children and income 
eligible people access to food, a healthful diet, and nutrition 
education in a way that supports American agriculture and inspires 
public confidence. Within that mission, USDA administers 16 critical 
nutrition assistance programs, one of which is SNAP, the Nation's 
largest domestic food and nutrition assistance program for income 
eligible Americans. SNAP is the primary source of nutrition assistance 
for millions of people each month, and SNAP participants can purchase a 
variety of eligible foods items, as defined by statute.\27\ USDA is 
committed to helping SNAP participants and all Americans make healthier 
food choices through evidenced-based nutrition education. SNAP-Ed is an 
evidenced-based, federally funded grant program that supports SNAP 
participants with nutrition education to help participants maximize 
benefits and make healthy food choices to promote nutrition security. 
In USDA's most recent analysis of food purchases by SNAP and non-SNAP 
households,\28\ SNAP households and non-SNAP households purchased 
similar types of foods, such as fruit, vegetables, and milk. This 
affirms that SNAP households are purchasing similar types of nutrient-
dense foods compared to non-SNAP households. Additionally, USDA 
encourages healthy eating for SNAP participants through incentive 
programs, which provide additional ways to make healthy choices, such 
as purchasing fruits and vegetables, easier for SNAP participants. 
Recent research \29\ shows that participants of the Gus Schumacher 
Nutrition Incentive Program (GusNIP) reported greater fruit and 
vegetable intake and improvements in food security. Similarly, in a 
Healthy Incentive Pilot (HIP) report,\30\ participants spent more SNAP 
benefits on fruits and vegetables than non-HIP households. SNAP 
incentive programs, along with all USDA Federal nutrition assistance 
programs, play an important role in making nutritious foods more 
accessible and affordable. While there are differences across the 
programs, each of USDA's Federal nutrition assistance programs are 
critical to advancing nutrition security and promoting healthy dietary 
patterns.
---------------------------------------------------------------------------

    \27\ See: Section 3(k) of the Food and Nutrition Act of 2008 (7 
U.S.C. 2012(k)).
    \28\ U.S. Department of Agriculture. Foods Typically Purchased 
by Supplemental Nutrition Assistance Program (SNAP) Households. 
November 18, 2016. Available at: https://www.fns.usda.gov/snap/foods-typically-purchased-supplemental-nutrition-assistance-program-snap-households.
    \29\ GusNIP NTAE. Gus Schumacher Nutrition Incentive Program 
(GusNIP): Impact Findings Y3: September 1, 2021 to August 31, 2022. 
Prepared for U.S. Department of Agriculture, National Institute of 
Food and Agriculture; 2023. Available at: https://nutritionincentivehub.org/gusnip-ntae-y3-impact-findings.
    \30\ U.S. Department of Agriculture. Evaluation of the Healthy 
Incentives Pilot (HIP) Final Report. September 2014. Available at: 
https://www.fns.usda.gov/snap/hip/final-evaluation-report.
---------------------------------------------------------------------------

Section 2: Added Sugars

Current Requirement

    Currently, there are no added sugars limits in the school meal 
programs. Under the current regulations, schools may choose to serve 
some menu items and meals that are high in added sugars, provided they 
meet average weekly calorie limits (7 CFR 210.10(f)(1) and 
220.8(f)(1)).
    The Dietary Guidelines for Americans, 2020-2025 recommends limiting 
intake of added sugars to less than 10 percent of calories per day. 
School meal data from school year (SY) 2014-2015 found that the average 
percentage of calories from added sugars in school meals was 
approximately 11 percent in school lunch and 17 percent in school 
breakfast.\31\ The Dietary Guidelines further indicate that 70 to 80 
percent of all school-aged children exceed the recommended limit for 
added sugars.\32\ The current calorie requirements for the school meal 
programs are intended to encourage schools to choose nutrient-dense 
foods and beverages. However,

[[Page 31971]]

USDA determined that a specific added sugars requirement would more 
effectively reduce added sugars in school meals, consistent with the 
goals of the Dietary Guidelines.
---------------------------------------------------------------------------

    \31\ Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals 
and the Diets of School-Age Children. Nutrients. 2021; 13(2):471. 
Available at: https://doi.org/10.3390/nu13020471.
    \32\ 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/.
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to reduce added sugars in school meals through a 
gradual, phased-in, two-step approach: product-based limits followed by 
a weekly dietary limit. First, beginning in SY 2025-2026, USDA proposed 
to implement quantitative limits for leading sources of added sugars in 
school meals. The proposed product-based limits were as follows:
     Grain-based desserts: would be limited to no more than 2 
ounce equivalents per week in school breakfast, consistent with the 
current limit for school lunch. Examples of grain-based desserts 
include cereal bars, doughnuts, sweet rolls, toaster pastries, coffee 
cakes, and fruit turnovers.\33\
---------------------------------------------------------------------------

    \33\ U.S. Department of Agriculture, Food Buying Guide for Child 
Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs, 
for a list of grain-based desserts.
---------------------------------------------------------------------------

     Breakfast cereals: would be limited to no more than 6 
grams of added sugars per dry ounce.
     Yogurt: would be limited to no more than 12 grams of added 
sugars per 6 ounces.
     Flavored milk: would be limited to no more than 10 grams 
of added sugars per 8 fluid ounces or, for flavored milk sold as a 
competitive food \34\ for middle and high schools, 15 grams of added 
sugars per 12 fluid ounces.\35\
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    \34\ Competitive food is a term to define all food and beverages 
that are available for sale to students on the school campus during 
the school day. (7 CFR 210.11(a)(2))
    \35\ For clarification, USDA proposed a higher added sugars 
limit for flavored milk sold as a competitive food in middle and 
high schools due to the larger serving size. The serving size for 
milk offered as part of a reimbursable meal is 8 fluid ounces. Milks 
sold to middle and high school students as a competitive food may be 
up to 12 fluid ounces.
---------------------------------------------------------------------------

    For the second step, beginning in SY 2027-2028, USDA proposed to 
implement a dietary specification for added sugars. The dietary 
specification would limit added sugars to less than 10 percent of 
calories per week in the school lunch and breakfast programs. This 
weekly limit would be in addition to the product-based limits described 
above.
    USDA requested public input on both steps as well as the following 
questions:
     USDA is proposing product-specific limits on the following 
foods to improve the nutritional quality of meals served to children: 
grain-based desserts, breakfast cereals, yogurt, and flavored milk. Do 
stakeholders have input on the products and specific limits included in 
this proposal?
     Do the proposed implementation timeframes provide 
appropriate lead time for food manufacturers and schools to 
successfully implement the new added sugars standards? Why or why not?
     What impact will the proposed added sugars standards have 
on school meal menu planning and the foods schools serve at breakfast 
and lunch, including the overall nutrition of meals served to children?
    For consistency across child nutrition programs, USDA also proposed 
to apply the product-based added sugars limits to breakfast cereals and 
yogurt served in the CACFP; under the proposed rule, the added sugars 
limits would replace the current total sugars limits for breakfast 
cereals and yogurt in CACFP. The proposed product-based limits for 
CACFP aligned with the proposed limits for school breakfast and lunch, 
and were as follows:
     Breakfast cereals: would be limited to no more than 6 
grams of added sugars per dry ounce.
     Yogurt: would be limited to no more than 12 grams of added 
sugars per 6 ounces.

Public Comments

    USDA received tens of thousands of comments on added sugars, with 
most in support of reducing added sugars in school meals. State 
agencies, school nutrition professionals, advocacy groups, industry 
respondents, professional organizations, CACFP sponsoring 
organizations, dietitians, and individual respondents, such as parents 
and students, provided input on the proposals for added sugars. At a 
high-level, respondents provided the following feedback on added sugars 
requirements:
     Limiting added sugars in school meals is important for 
children's health and academic performance.
     Product-based limits would incentivize the food industry 
to reformulate products to help schools meet the weekly added sugars 
limit.
     Many respondents expressed a preference for one type of 
limit over the other:
     Some respondents suggested that product-based limits would 
be easier and less burdensome for program operators to implement 
compared to the weekly limit.
     Other respondents asserted that weekly limits align with 
recommendations from the Dietary Guidelines and would allow more 
flexibility for menu planners compared to the product-based limits.
    The following paragraphs describe specific feedback on the proposal 
as well as feedback on each step of the proposal: product-based limits 
and weekly limits.
Reducing Added Sugars and Children's Health
    Numerous respondents, including advocacy groups, school districts, 
school nutrition professionals, parents, and a few form letter 
campaigns, supported added sugars limits in school meals. Several 
advocacy groups justified limits on added sugars based on the 
recommendations from the Dietary Guidelines. One advocacy group 
asserted that reducing added sugars is ``urgent'' because children's 
current intake of added sugars is high. Other proponents reasoned that 
implementing added sugars limits in school meals would be beneficial to 
children's health. An advocacy group applauded the proposal because it 
makes a distinction between naturally occurring and added sugars and 
creates an incentive to reduce added sugars in ``hyper-processed 
products.'' A few parents emphasized that reducing added sugars is a 
top health priority. One parent strongly supported the proposed limits, 
stating that currently, ``children who rely on school meals [have] no 
option but to eat sugary breakfasts.'' An individual cited multiple 
studies demonstrating the negative impacts of added sugars on health, 
and an advocacy group noted that consuming too many added sugars can 
increase the risk of type 2 diabetes and heart disease. A few 
individuals and a form letter campaign affirmed that reducing added 
sugars may help address health disparities by improving the overall 
nutritional quality of school meals.
Challenges With Reducing Added Sugars
    Other respondents cited challenges with reducing added sugars in 
school meals. A school district appreciated USDA's efforts but voiced 
concerns that an added sugars limit would drastically reduce schools' 
buying options. One school food service director claimed that school 
meals are already low in sugar and that tracking added sugars would be 
another standard to monitor. An industry respondent noted that if the 
proposed rule is finalized, added sugars would be the only element in 
the meal pattern ``with two prongs of compliance monitoring,'' as it 
would be subject to both product-based and weekly limits. A dietitian 
expressed concern about the palatability of meals, adding that

[[Page 31972]]

limiting added sugars could negatively impact student participation. 
One individual supported reducing added sugars, but expressed concern 
that students will not like the food, which could increase food waste.
    One industry respondent argued that the existing calorie ranges 
``adequately control for sugar'' and schools ``should not be further 
regulated'' with added sugars limits. Another industry respondent 
opposed the proposed added sugars limits due to the cost of product 
reformulation. An advocacy group also raised concerns about product 
reformulation, noting that each time a food producer needs to change 
the specifications of a product, it can take up to three years and cost 
as much as $750,000 per item. This respondent was concerned that some 
manufacturers may choose to stop making school-specific items instead 
of reformulating their products.
Proposed Approach: Product-Based Limits
    Over 86,000 respondents, including 96 unique comments, supported 
the proposed product-based limits in general; comment counts specific 
to each product-based limit are detailed in each product-based comment 
summary section, below. A school district suggested that product-based 
limits would provide helpful benchmarks for initial added sugars 
reductions. An industry respondent asserted that product-based limits 
would help reduce added sugars in breakfast items. An individual 
agreed, stating that limiting high-sugar breakfast items would support 
children in the classroom as well. This respondent explained that 
breakfasts that are high in sugar do not provide sustainable energy for 
students to focus in the classroom. A professional organization stated 
that product-based limits would promote ``progress toward more nutrient 
dense'' foods, and that the phased-in approach would allow schools and 
manufacturers time to ``learn and adapt.''
    Other respondents supported the product-based limits but did not 
support the weekly limit. For example, an advocacy group affirmed that 
the product-based limits would be easier for schools operationally, 
noting that CACFP sponsoring organizations have successfully 
implemented product-based limits for breakfast cereals and yogurt. This 
advocacy group stated that product-based limits would better align 
child nutrition program requirements and reduce administrative burden. 
A State agency suggested that the proposed product-based limits would 
help to educate the public about the health impacts of added sugars. 
However, this State agency did not support the weekly limit, asserting 
that it may be burdensome for schools. A school district also preferred 
the product-based limits over the weekly limit, suggesting that 
product-based limits would be easier to implement after schools 
overcome the initial burden of identifying compliant products. An 
advocacy group agreed, maintaining that the product-based limits are 
necessary to reduce added sugars at breakfast, but noting that the 
weekly limit would ``negatively impact school meal menu planning.'' An 
industry respondent described the product-based limits as ``appropriate 
tools to reduce consumption of added sugars,'' and argued that an 
additional weekly limit would be ``duplicative.''
    About 100 respondents, including 81 unique comments, opposed 
proposed product-based limits in general; comment counts specific to 
each product-based limit are detailed in each product-based comment 
summary section, below. A food service director opposed the proposed 
limits for school breakfast specifically, describing breakfast as an 
important meal and suggesting that some added sugar encourages students 
to eat breakfast. An individual stated that product-based limits would 
decrease the availability of grab-and-go meals and would reduce overall 
breakfast participation. Several respondents, including industry 
respondents, school districts, and dietitians, added that product-based 
limits would hinder alternative breakfast models (e.g., breakfast in 
the classroom) because pre-packaged, grain-based desserts are more 
commonly offered in these models. A dietitian claimed that even though 
some popular whole grain products served at breakfast contain added 
sugars, the nutritional benefits of these foods ``outweigh the sugar 
content.'' A State agency agreed that breakfast cereals, yogurt, and 
flavored milks provide ``numerous essential nutrients'' and raised 
concerns about the potential negative impacts of decreased consumption 
under the product-based limits. A few school districts expressed 
concerns about increased costs. An industry respondent asserted that 
product-based limits are ``too prescriptive and unnecessarily 
complicate the nutrition standards.'' Instead of requiring the product-
based limits, a State agency suggested USDA partner with K-12 food 
manufacturers to work toward implementation of voluntary, product-based 
added sugars limits.
Proposed Product-Based Limit: Grain-Based Desserts at Breakfast
    Over 900 respondents supported the proposed limit for grain-based 
desserts in school breakfast, including 20 unique comments. A parent 
applauded limits for grain-based desserts at breakfast, suggesting that 
they would ``encourage more nutrient-dense choices.'' An individual 
supported limits on grain-based desserts, asserting that schools can 
``find healthier ways to serve breakfast.'' A school nutrition 
professional agreed, supporting a limit on ``desserts [and] sweet 
entr[eacute]es during breakfast.'' An advocacy group explained that 
applying the current school lunch limit for grain-based desserts to 
school breakfasts (i.e., the ability to offer up to 2 ounce equivalents 
of grain-based desserts per week) would help simplify menu 
requirements.
    Over 700 respondents opposed the proposed limit for grain-based 
desserts in school breakfast, including 85 unique comments. Many 
opponents stated that grain-based desserts are popular among students 
and that limiting these foods may impact student breakfast 
participation. An individual raised concerns that schools have few 
options at breakfast and reducing grain-based desserts would further 
limit menus. An advocacy group noted that currently, schools offer a 
variety of grain items at breakfast to promote participation, for 
example, by including whole grain-rich toaster pastries and whole 
grain-rich cereal bars daily, along with whole grain donuts and whole 
grain cinnamon rolls on occasion. This respondent maintained that the 
proposed rule would severely limit schools' ability to serve these 
popular items at breakfast. A school district noted that convenient, 
on-the-go grain items are important options for students who attend 
morning tutoring to recover from learning loss following the COVID-19 
pandemic.
    Several respondents cited confusion about the definition of 
``grain-based dessert'' as described in Exhibit A: Grain Requirements 
for Child Nutrition Programs of the Food Buying Guide.\36\ An industry 
respondent argued that under current policy, grain-based desserts are a 
``list of foods with no explanation of what sets them apart from other 
grain foods.'' This respondent noted this list includes a wide range of 
foods that can differ

[[Page 31973]]

vastly in added sugars content. Additionally, this respondent suggested 
that under the proposed rule, manufacturers would have little incentive 
to reduce added sugars in grain-based desserts, since these products 
would still face ``strict limitations,'' regardless of their added 
sugars content. A State agency noted that items such as cereal bars are 
not typically identified as ``desserts'' outside of the child nutrition 
programs and encouraged USDA to reevaluate the food items that are 
considered grain-based desserts. A form letter campaign agreed, 
pointing out that many items considered to be grain-based desserts are 
offered as part of a balanced breakfast at school or at home. A State 
agency requested clarification on what the proposed grain-based dessert 
limit for school breakfast would mean for preschool meals, noting that 
the meal pattern currently does not allow any grain-based desserts to 
be offered to preschoolers.
---------------------------------------------------------------------------

    \36\ U.S. Department of Agriculture, Food Buying Guide for Child 
Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs, 
for a list of grain-based desserts.
---------------------------------------------------------------------------

Proposed Product-Based Limit: Breakfast Cereals
    Over 900 respondents supported the proposed product-based added 
sugars limit for breakfast cereals, including 20 unique comments. Many 
respondents supported the proposal for breakfast cereals without 
providing additional rationale. A State agency affirmed that there are 
plenty of breakfast cereals that already meet the proposed product-
based limit. This State agency also suggested that the implementation 
date would provide sufficient time for manufacturers to decrease added 
sugars in non-compliant breakfast cereals. Another State agency 
supported limiting added sugars in breakfast cereals but recommended 
increasing the limit to 8 or 9 grams per dry ounce, instead of the 
proposed 6 grams per dry ounce.
    About 50 respondents opposed the proposed product-based limit for 
breakfast cereals, including 33 unique comments. A school nutrition 
professional and several school districts expressed concern that the 
product-based limit for breakfast cereals would severely limit variety. 
An industry respondent claimed that they provide numerous breakfast 
cereal options that are inexpensive, convenient, and popular with 
students, and argued that the product-based limit is not necessary 
because the weekly limit would effectively limit breakfast cereals that 
are high in added sugars. This respondent stated that their school 
breakfast cereals provide less than 8 grams of added sugars per 
serving, but that the product-based limit would limit their options for 
schools to only two cereals. A school district argued that the 
breakfast cereals that meet the proposed product-based limit are not 
preferred by students.
Proposed Product-Based Limit: Yogurt
    Nearly 1,000 respondents supported the proposed product-based added 
sugars limit for yogurt, including 24 unique comments. An industry 
respondent suggested that ``many options on the market meet the 
proposed limit'' for yogurt (12 grams of added sugars per 6 ounces). 
This respondent noted that manufacturers have greater ability to 
formulate yogurts that meet a product-based limit, as opposed to a 
weekly limit. Another industry respondent suggested that some yogurts 
would meet the proposed product-based limit, while others would not, 
potentially requiring reformulation. A parent who supported the 
product-based limit suggested that yogurt could be sweetened with fruit 
instead of added sugars. A professional organization noted that most 
yogurt served in their program already meets the proposed product-based 
limit and described it as ``realistic for manufacturers and programs.''
    Forty respondents opposed the proposed product-based added sugars 
limit for yogurt, including 21 unique comments. A CACFP sponsoring 
organization asserted that it would limit the yogurt that program 
operators can offer and only allow varieties that ``children will not 
want to eat.'' A State agency described the proposed limit as 
``confusing,'' noting that most yogurt comes in 4-ounce packages and 
schools would need to ``do culinary math'' to determine how to apply 
the limit, which was for 6-ounce packages. An industry respondent 
suggested that yogurt products should be allowed to have various levels 
of sugars so that schools have more flexibility in selecting products. 
One school district shared that yogurt varieties that are currently 
popular with students at breakfast would not meet the product-based 
limit. This respondent raised concerns that, under the proposed limit, 
certain varieties of yogurt would be eliminated from their menus and 
there would be ``limited choices for replacements.''
Proposed Product-Based Limit: Flavored Milk
    Over 900 respondents supported the proposed product-based limit for 
flavored milks, including 44 unique comments. A State agency maintained 
that they did not expect the flavored milk limit to be an issue, as 
dairy suppliers are already working to reduce added sugars in flavored 
milks. Another State agency and two professional associations also 
supported the proposed limits, and one of these professional 
associations noted that most milk producers already meet the proposed 
limit. A school district confirmed that flavored milks currently 
offered in their district meet the proposed added sugars limit. An 
industry respondent suggested that the proposed product-based limit for 
flavored milks is ``likely achievable'' but cautioned that some 
reformulation efforts to reduce added sugars have started to impact 
palatability. An advocacy group recommended applying the added sugars 
limits for flavored milks to SMP and CACFP ``to ensure maximum positive 
impact on child health.''
    Fifty respondents opposed the proposed product-based limit for 
flavored milks, all of which were unique comments. A State agency 
suggested that the product-based limit for flavored milks ``may not be 
necessary and may cause difficulties for schools lacking access to 
multiple options.'' This State agency pointed to existing efforts in 
the dairy industry to reduce added sugars in flavored milks, including 
the International Dairy Foods Association's recent commitment to lower 
added sugars in flavored milks available in schools.\37\ While 
acknowledging the great improvement, the State agency noted that, 
depending on their location, some rural schools may not have access to 
flavored milk options that meet the proposed limit. Another State 
agency expressed concern about the proposed limit, noting that 
producers in their State currently offer a fat-free, flavored milk with 
11 grams of added sugars per 8 fluid ounces. This State agency 
questioned whether it would be worth the financial burden for this 
producer to reformulate their product to reduce added sugars by 1 gram 
and meet the proposed 10 grams of added sugars per 8 fluid ounces 
limit. Another State agency mentioned a milk distributor

[[Page 31974]]

that currently has a flavored milk option with 13 grams of added sugars 
per 8 fluid ounces. Numerous respondents provided additional input on 
flavored milks, which is detailed in Section 3A: Flavored Milk.
---------------------------------------------------------------------------

    \37\ In April 2023, the International Dairy Foods Association 
announced its ``Healthy School Milk Commitment.'' According to a 
press release from the International Dairy Foods Association, 
``[b]eginning with the 2025-2026 school year, 37 school milk 
processors representing more than 90% of the school milk volume in 
the United States commit to provide healthy, nutritious school milk 
options with no more than 10 grams of added sugar per 8 fluid ounce 
serving.'' See: International Dairy Foods Association. IDFA 
Announces `Healthy School Milk Commitment' to Provide Nutritious 
Milk with Less Added Sugar for Students in Public Schools, 
Surpassing USDA Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
---------------------------------------------------------------------------

Product-Based Limits: Impact on Child and Adult Care Food Program
    USDA also received feedback from the CACFP community about how the 
proposed product-based limits for breakfast cereals and yogurt would 
affect CACFP. Several respondents opposed any changes to current CACFP 
total sugars limits, citing the potential burden of implementing the 
change and the operational differences between school meals and CACFP. 
For example, an advocacy group suggested that USDA's review of 
breakfast cereals and yogurt, which focused on products for K-12 
schools, did not necessarily reflect the yogurt products available to 
CACFP operators. An industry respondent agreed, adding that there may 
be ``little to no demand for these products in grocery stores,'' and 
products that are commonly served in schools may not be available in 
the broader food supply. Another industry respondent suggested that the 
proposed change for yogurt could impact the type of yogurt available in 
CACFP, resulting in ``less preferred yogurt types'' offered in the 
Program.
    An advocacy group asserted that making major changes to CACFP 
nutrition requirements to ``streamline'' work for schools is ``a 
mistake'' and recommended USDA further engage the CACFP community prior 
to finalizing the proposed breakfast cereal and yogurt added sugars 
limits in CACFP. This respondent added that CACFP providers use other 
Federal assistance programs, rather than school meals, as their point 
of reference. Another advocacy group noted that for breakfast cereals, 
the proposed change from 6 grams of total sugars per dry ounce to 6 
grams of added sugars per dry ounce would effectively increase the 
total sugar allowance. This respondent raised concerns about children's 
health and did not support what they considered to be a more lenient 
requirement. A State agency suggested applying the current CACFP total 
sugars limits for breakfast cereals and yogurt to school meals, instead 
of finalizing the proposed changes.
    Other respondents supported applying the added sugars limits for 
breakfast cereals and yogurt to CACFP. An industry respondent supported 
transitioning total sugars limits to added sugars limits, arguing that 
it ``appropriately reflects updated nutrition guidance.'' A dietitian 
noted that CACFP operators have successfully implemented total sugars 
limits and supported updating to added sugars limits because added 
sugars are now consistently listed on the Nutrition Facts label. An 
advocacy group agreed, suggesting that the updated Nutrition Facts 
label provides the information CACFP providers would need to select 
products, adding that there are numerous products in the marketplace 
that meet the proposed added sugars limits. Another advocacy group 
suggested that applying the proposed change to CACFP ``will simplify 
standards for both industry and program operators.''
    A form letter campaign supported the product-based limit for 
breakfast cereals only if CACFP providers can continue to use a list of 
allowable products provided by the Women, Infant and Children (WIC) 
Program to identify breakfast cereals that are allowed in the CACFP. 
Respondents explained that each State agency administering the WIC 
program provides a list of allowable foods (WIC list) that meet program 
nutrition requirements. A few advocacy groups highlighted the 
importance of the WIC list, with one noting that the majority of CACFP 
providers shop in retail stores and use the WIC list to easily identify 
cereals that meet CACFP total sugars requirements. A State agency 
agreed, describing the WIC list of approved breakfast cereals as ``an 
important resource used by both the State agency and CACFP sponsoring 
organizations.'' An advocacy group also highlighted the importance of 
collaboration between CACFP and WIC, including shared materials and 
messaging. An individual suggested that USDA develop its own ``approved 
list'' of breakfast cereals and yogurt that child care providers 
participating in CACFP could use to easily identify compliant products.
    Respondents also offered additional suggestions for how USDA could 
support the CACFP community in implementing the proposed changes, if 
finalized. An advocacy group recommended that USDA provide tools and 
resources to help CACFP providers identify allowable products. A CACFP 
sponsoring organization encouraged USDA to provide flexibility to 
operators and sites as they transition from current total sugars limits 
to the proposed added sugars limits. An advocacy group noted that CACFP 
sponsoring organizations would need ample time to retrain providers and 
suggested that USDA provide additional funding to support nutrition 
education, training, and material revisions at the local level. Another 
advocacy group noted that family child care providers often run small 
programs where they take on multiple roles including owner, caregiver, 
meal preparer, and more. This respondent suggested that child care 
providers may need additional time to implement the added sugars limits 
for breakfast cereals and yogurt, noting that the changes will require 
time, training, money, and technical assistance. However, a State 
agency suggested that the proposed rule would provide adequate lead 
time for CACFP operators to successfully implement the changes, noting 
that the State would have time to train sponsoring organizations and 
update technical assistance resources. However, the State agency 
recommended that USDA implement the CACFP changes at the beginning of 
the fiscal year, rather than the beginning of the school year, to match 
the start of the CACFP program year.
Proposed Approach: Weekly Limits
    Over 76,000 respondents, including 114 unique comments, supported a 
weekly added sugars limit in the school lunch and breakfast programs--
the second step of USDA's proposal to reduce added sugars. A dietitian 
supported the weekly limit, stating that it gives ``menu planners 
creative freedom'' to develop a menu that incorporates foods that are 
currently available in the K-12 market. Another respondent explained 
that the weekly limit would give schools flexibility to occasionally 
offer foods that are higher in added sugars, provided they are balanced 
with foods that are lower in added sugars throughout the week.
    Some respondents supported a weekly limit only and did not support 
the product-based limits. For example, an advocacy group suggested that 
a weekly limit would be easier to monitor, require less training, and 
provide more flexibility for operators, while still reducing overall 
intake of added sugars. This respondent suggested that all foods can 
fit into a healthy diet, just in different amounts and frequencies. An 
industry respondent also supported the weekly limit only, claiming that 
product-based limits would cause additional burden to monitor and limit 
student choice, which could reduce participation. Another industry 
respondent agreed, suggesting that a 10 percent weekly limit in lunch 
and breakfast programs provides flexibility for operators, maintains 
options for students, and gives manufacturers time to reformulate. This 
respondent argued that the product-based limits would ``reduce 
opportunities for whole grain intake'' due to the limitation of popular

[[Page 31975]]

grains items that contain added sugars, such as granola bars. A school 
district indicated that the weekly limit would be easier to implement 
and track and allow schools to decide ``where to spend'' their added 
sugars in lunch and breakfast menus. An advocacy group supported the 
weekly limit and suggested the two-step approach would ``cause a lot of 
confusion and be difficult to manage and document.''
    Forty-eight respondents opposed the weekly limit, the majority of 
which were unique comments. A school district argued that the weekly 
limit would ``significantly increase administrative burden.'' A State 
agency agreed, citing specific concern about the potential burden on 
small, rural districts that do not use menu planning software and may 
not have the staff capacity to calculate additional dietary 
specifications. An industry respondent suggested that a weekly limit 
may ``inadvertently lower the amount of yogurt and dairy'' offered in 
school meals, which they asserted could decrease ``the nutritiousness 
of meals.''
Two-Step Approach: Product-Based and Weekly Limits
    Some respondents supported both steps of USDA's phased-in approach 
to reduce added sugars in school meals and emphasized the importance of 
the product-based and weekly limits. An advocacy group strongly 
supported both proposals, noting that product-based limits alone would 
not achieve dietary recommendations for added sugars. This respondent 
emphasized the importance of implementing a weekly limit, while also 
pointing out the benefits of product-based added sugars limits--
particularly for foods that are commonly served in school meals. A 
professional association also supported the two-step approach, 
suggesting that it would allow ``schools, food manufacturers, and 
distributors time to learn and adapt.'' An advocacy group supported 
both added sugars proposals, but acknowledged that between the two, a 
weekly limit would be ``more effective'' to meet the Dietary Guidelines 
recommendations. Another advocacy group described USDA's two-step 
approach as ``balanced and practical'' and supported phasing in the 
product-based limits, followed by the weekly limit. A group of Federal 
elected officials applauded USDA's proposed ``gradual, phased-in 
approach'' to reducing added sugars in school meals. An advocacy group 
added that the ``combination of product-based and weekly limits are 
especially important'' given children's current, excessive intake of 
added sugars.
Proposed Implementation Timeframes
    Over 300 respondents addressed the proposed implementation 
timeframes, including 96 unique comments. Several respondents suggested 
that USDA provide schools and industry more time for implementation. A 
dietitian and a school nutrition director asserted that the product-
based limits do not provide manufacturers enough lead time and 
emphasized that reformulating products takes time and money. A school 
district stated that they ``have faith'' that manufacturers can reduce 
added sugars over time and students will adapt, but they do not think 
two years is adequate. This respondent was concerned about the 
potential impact on student participation, noting the importance of 
providing breakfast cereals and other food items that students enjoy. A 
respondent who supported the proposals expressed concern that the 
implementation timeline may not be long enough for small or rural 
school districts that rely on smaller food distributors. One State 
agency conducted a survey of child nutrition directors and NSLP 
stakeholders and found that 75 percent of respondents did not feel the 
proposed implementation dates were sufficient due to limited product 
availability, supply chain challenges, and student acceptance.
    A dietitian recommended lengthening the implementation timeline and 
providing funding to manufacturers. This respondent was concerned that 
manufacturers would ``quit the K-12 segment if they cannot comply'' 
with the limits. An industry respondent argued that, if manufacturers 
do not have additional lead time, student participation may decrease 
due to ``inadequate options.'' This respondent added that ``the school 
nutrition ecosystem is simply too fragile'' to follow the proposed 
timeline. A joint response from three industry respondents argued that 
the proposed implementation dates would not provide enough time for 
reformulation that ensures product quality and safety, given the 
functional role sugar plays as an ingredient (e.g., preventing 
spoilage, improving texture, and adding bulk). This response raised 
concerns about student acceptability, student participation, and food 
waste under the proposed implementation timeline. A dietitian suggested 
that if manufacturers are not able to create products to meet the 
proposed product-based limits, then the implementation dates should be 
delayed.
    An industry respondent maintained that added sugar reductions must 
be tailored for each individual product, suggesting that timelines can 
range from 12 to 16 months. This respondent added that schools 
typically solicit bids for products one year in advance, adding at 
least 12 months to the process. This industry respondent noted that 
additional time for implementation would allow schools to update meal 
planning databases, provide time to develop menu planning tools, and 
help students gradually adjust to foods containing less added sugars. A 
State agency relayed that manufacturers have expressed that SY 2027-
2028 would be a more realistic timeframe to implement breakfast cereal 
and yogurt limits. An advocacy group acknowledged that timelines for 
research and development vary and suggested that K-12 food companies 
typically report needing 3 years to reformulate products. A State 
agency also recommended providing at least 3 years after release of the 
final rule to allow adequate time to update trainings, materials, 
product formulations, and school menus. An individual suggested that 
industry would need a minimum of 3-5 years to reformulate or develop 
food items that meet the proposed limits. A State agency and an 
industry respondent expected product reformulation to take up to 5 
years. Another industry respondent asserted that the proposed 
implementation dates for added sugars are too short and suggested the 
reductions occur more gradually over the next 20 years or more.
    Other respondents suggested the proposed implementation timeframes 
were adequate, and some recommended accelerating timeframes in the 
interest of children's health. An advocacy group affirmed that phased-
in implementation would allow adequate time to implement the new 
requirements. Another advocacy group recommended implementing the 
weekly added sugars limit alongside the product-based limits in SY 
2025-2026. A State agency also suggested implementing the product-based 
limits and the weekly limit at the same time, suggesting that 12-18 
months would be a reasonable amount of time for industry and schools to 
prepare for changes. A parent suggested implementing the added sugars 
limits on a quicker timeframe, suggesting that the limits ``need to 
happen now'' due to what they consider to be an excessive amount of 
sugar in school meals. An advocacy group agreed, suggesting that USDA 
implement the added sugars limits ``as soon as is feasible,'' noting 
that these updates will be beneficial to children's health. Similarly, 
a second advocacy group stated that USDA

[[Page 31976]]

should implement the weekly limit in the school year immediately 
following release of the final rule. A local government supported both 
added sugars limits and the proposed implementation timeline; this 
respondent did not recommend extensions ``due to the urgency needed in 
reducing consumption of added sugars among children.'' An advocacy 
group and a few individuals asserted that ``there is no credible reason 
for USDA to delay achieving the reduction in sugar consumption,'' 
requesting implementation of the added sugars limits by fall 2023.
    A school nutrition professional suggested that the proposed 
implementation date for the product-based limits would provide ``plenty 
of time'' but claimed the weekly limit would be ``much harder'' to 
achieve. This respondent noted that many rural districts currently do 
not have nutrition software to facilitate implementation of a weekly 
limit for added sugars. Similarly, a dietitian suggested that the 
implementation date for product-based limits is achievable, provided 
that the final rule is published at least one year in advance of 
implementation (by July 1, 2024). The respondent suggested that this 
timing would allow USDA and State agencies to provide technical 
assistance and training. However, this respondent recommended delaying 
implementation of the weekly added sugars limit to allow additional 
time for product reformulation and menu revisions.
    One respondent encouraged USDA to remove the product-based limits 
and implement the weekly limit no later than 2025. By accelerating 
implementation of the weekly limit in school lunch and breakfast 
programs, this respondent suggested USDA could support healthier meals 
for children who are currently in school. An industry respondent also 
recommended removing the product-based limits while maintaining the 
proposed implementation of SY 2027-2028 for the weekly limit.
Alternative Approaches Suggested by Comments
    Some respondents offered alternatives to the proposals, or 
suggested changes. For example, an industry respondent suggested that 
USDA determine the product-based limits using the average added sugars 
content of currently available products. A professional organization 
recommended that USDA establish total sugars limits, rather than added 
sugars limits, for breakfast cereals and yogurt because of the 
naturally occurring sugar content of those foods. An individual 
suggested that USDA reduce sugar content in school breakfast by 
following Smart Snacks in School requirements for sugar.\38\ A few 
advocacy groups suggested USDA require or recommend product-based 
limits for condiments and toppings, noting that these products 
contribute to children's intake of added sugars, especially at 
breakfast.
---------------------------------------------------------------------------

    \38\ Regulations for competitive food service and standards are 
found at 7 CFR 210.11.
---------------------------------------------------------------------------

    Some respondents suggested alternatives to the proposed limit on 
grain-based desserts in school breakfasts. A professional organization 
and another respondent suggested that USDA prohibit (rather than limit) 
grain-based desserts in the school meal programs to promote more 
nutrient dense foods. A State agency recommended phasing in the grain-
based dessert limit by age/grade group, starting with K-5 children. 
This State agency suggested this could help prevent a drastic drop in 
participation among older students. A school nutrition professional 
suggested that grain-based desserts should not be defined by the 
product name, but by the amount of added sugars in the product. An 
advocacy group also encouraged USDA to establish a quantitative added 
sugars limit for grain-based desserts and suggested further reducing 
the proposed added sugars limit for breakfast cereals.
    An industry respondent suggested that if yogurt and flavored milks 
are subject to product-based limits, they should be excluded from the 
overall weekly limit. This respondent expressed concern that counting 
yogurt and flavored milks in the overall weekly limit could create 
``perverse and unintended incentives'' to remove these items from 
meals. Another industry respondent suggested that USDA exempt the added 
sugars in dried cranberries from the weekly added sugars limit. This 
respondent argued that not providing an exemption for cranberry 
products could discourage the consumption of products like cranberries 
that include added sugar for processing and palatability.
    A few respondents offered alternative suggestions for the weekly 
added sugars limit. For example, a school nutrition director suggested 
starting with a higher weekly dietary specification, such as 15 
percent, and adjusting the percentage down as needed. This respondent 
stated that a more gradual approach for the weekly limit would mirror 
the proposed sodium reductions. Similarly, an advocacy group 
recommended removing the product-based limits and instead, gradually 
phasing in the weekly limit for lunch and breakfast meals. This 
respondent recommended starting in SY 2025-2026 with a dietary 
specification limiting meals to less than 25 percent of calories from 
added sugars, and then implementing a 10 percent limit in SY 2027-2028. 
A school district supported finalizing a 25 percent weekly limit in SY 
2026-2027 and did not recommend further reductions. Another school 
district recommended a weekly dietary limit of 35 percent of calories 
from added sugars, with no product-based limits, beginning SY 2025-
2026.
    However, an advocacy group stated that USDA ``should reject any 
calls to set a limit higher than 10 percent'' because most children 
would benefit from a diet with even fewer added sugars, as low as 4 to 
8 percent. Another respondent argued that the proposed 10 percent limit 
is ``still very high.'' An advocacy group agreed, recommending that 
USDA take ``swifter and more far-reaching action'' by implementing a 6 
percent weekly limit for added sugars. A local government recommended 
that USDA apply the limit to both meals together (breakfast and lunch) 
instead of applying the 10 percent weekly limit to each meal 
separately. This respondent suggested this would increase the 
feasibility of implementation, since breakfast foods typically 
contribute larger amounts of added sugars. A school nutrition 
professional suggested incentivizing--but not requiring--schools to 
meet the 10 percent weekly limit.
    Several respondents, including a national organization representing 
tens of thousands of school nutritional professionals, recommended that 
USDA make it easier for schools to offer meats/meat alternates in place 
of grains at breakfast, which they argued would support reducing added 
sugars in school breakfasts. This includes options suitable for grab-
and-go breakfast, such as protein-rich breakfast sandwiches and wraps. 
A school district suggested many schools ``would love to be able to 
offer eggs and sausage, or fruit and yogurt parfaits for breakfast,'' 
and requested that USDA remove the requirement to offer a minimum 
amount of grains daily for breakfast. A dietitian recommended that USDA 
require a meat/meat alternate at breakfast. A few industry respondents 
maintained that the added sugars limit would ``create a drive in the 
market to increase the protein content of breakfast items,'' noting 
that the current grain minimum and cost constraints present a barrier 
to offering meats/meat alternates at breakfast. Additional comments on 
this topic, received in response to a prior

[[Page 31977]]

rulemaking, can be found in Section 6: Meats/Meat Alternates at 
Breakfast.
Other Comments About Added Sugars
    Respondents also submitted other comments about added sugars, 
including comments related to sweeteners, which respondents used a 
variety of terms to describe. A school nutrition professional raised 
concerns that manufacturers would replace added sugars with 
``artificial sweeteners'' when reformulating products to meet the 
proposed limits. Similarly, a dietitian stated that while they support 
reducing added sugars, food manufacturers would face challenges to meet 
this requirement without using ``sugar substitutes.'' A school 
nutrition professional suggested prohibiting ``non-caloric sweeteners 
(both natural and artificial)'' in school meals, noting that there is 
limited research on their long-term effects and expressed concern these 
additives may cause stomach problems in young children. An individual 
voiced similar concerns about ``low calorie sweeteners'' and suggested 
prohibiting or labeling products so that parents or students can avoid 
those food items, if desired.
    A school district requested that the added sugars limits be 
accompanied by an increase in reimbursement rates. This respondent 
anticipated an increase in product costs as added sugars are replaced 
with more expensive and healthier ingredients. One industry respondent 
also shared financial concerns, suggesting that schools would need to 
adjust menus by adding food items or increasing portion sizes to meet 
calorie ranges if added sugars are reduced. This respondent suggested 
one solution to this challenge would be to increase Federal funding. 
Another industry respondent described the ``chronic underfunding of 
school breakfasts'' and encouraged adequate resources to facilitate 
schools offering nutritious breakfast items, such as fresh fruits and 
vegetables. Although this respondent acknowledged their comment was 
outside the scope of this rulemaking, they emphasized that funding 
plays an important role in the types of foods that schools can offer 
students.
    A few advocacy groups encouraged USDA to provide sufficient time, 
menu planning resources, and technical assistance to support 
implementation of the added sugars limits. Specifically, some 
respondents suggested USDA update its Team Nutrition resources for 
reducing sugars in CACFP, if this requirement is finalized. A State 
agency requested that USDA update Administrative Review guidance and 
assessment tools, along with guidance on how schools can assess 
compliance with the weekly limit. An advocacy group recommended that, 
during implementation, schools should not be penalized and suggested 
that USDA prioritize additional technical assistance and training for 
schools that are struggling with compliance. A State agency provided 
similar input, suggesting that USDA provide schools a ``grace period'' 
for corrective actions during the first Administrative Review cycle, 
following implementation of the added sugars limits.

Final Rule

    This final rule codifies the proposed added sugars limits in the 
school lunch and breakfast programs, as follows:
     Product-based limits: By SY 2025-2026, schools must 
implement quantitative limits for breakfast cereals, yogurt, and 
flavored milks. As explained below, this rule does not finalize the 
proposed product-based limit for grain-based desserts at breakfast. The 
product-based limits that are finalized in this rule are as follows:
     Breakfast cereals are limited to no more than 6 grams of 
added sugars per dry ounce.
     Yogurt is limited to no more than 12 grams of added sugars 
per 6 ounces (2 grams of added sugars per ounce).
     Flavored milk is limited to no more than 10 grams of added 
sugars per 8 fluid ounces. Flavored milk sold as a competitive food for 
elementary school students will follow the 10 grams of added sugars per 
8 fluid ounce limit, while flavored milk sold as a competitive food for 
middle and high school students will be limited to 15 grams of added 
sugars per 12 fluid ounces.\39\
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    \39\ For clarification, the added sugars limit for flavored milk 
sold as a competitive food in middle and high schools due to the 
larger serving size. The serving size for milk offered as part of a 
reimbursable meal is 8 fluid ounces. Milks sold to middle and high 
school students as a competitive food may be up to 12 fluid ounces. 
Milks sold to elementary school students as a competitive food may 
be up to 8 fluid ounces, and so will follow the 10 grams of added 
sugars per 8 fluid ounce limit.
---------------------------------------------------------------------------

     Weekly dietary limit: By SY 2027-2028, schools must 
implement a dietary specification limiting added sugars to less than 10 
percent of calories per week in the school lunch and breakfast 
programs; this weekly limit will be in addition to the product-based 
limits described above.
    As proposed, this final rule also updates CACFP total sugar limits 
for breakfast cereals and yogurt to align with the product-based added 
sugars limits established for NSLP and SBP as stated above. Because 
CACFP operates on a fiscal year calendar, these changes must be 
implemented by October 1, 2025. For CACFP, the product-based added 
sugars limits are as follows:
     Breakfast cereals are limited to no more than 6 grams of 
added sugars per dry ounce.
     Yogurt is limited to no more than 12 grams of added sugars 
per 6 ounces (2 grams of added sugars per ounce).
    The existing total sugars limits for breakfast cereals and yogurt 
in CACFP will remain in place until October 1, 2025, when the new added 
sugars limits must be implemented. With State agency approval, CACFP 
operators may choose to implement the added sugars limits for breakfast 
cereals and yogurt early.
Two-Step Approach To Reduce Added Sugars in School Meals
    USDA is committed to improving the nutritional quality of school 
meals by establishing requirements that align with the goals of the 
most recent Dietary Guidelines. USDA also acknowledges stakeholders' 
concerns about added sugars in school meals and the harmful effects on 
children's health. The two-step approach to reducing added sugars 
finalized in this rule is expected to set schools up for success by 
gradually decreasing added sugars over the next several years. USDA 
acknowledges that, as noted in public comments, program operators need 
sufficient time to prepare and plan menus to meet the new added sugars 
limits. By first phasing in the product-specific limits for breakfast 
cereals, yogurt, and flavored milk, USDA expects that schools will be 
better positioned to successfully meet the weekly limits for added 
sugars, which will take effect two school years after the effective 
date of the product-based limits.
    USDA intends for the product-based limits for breakfast cereals, 
yogurt, and flavored milk to have a meaningful impact on the added 
sugars offered in school meals. However, USDA recognizes that there are 
other foods offered in school meals that contribute to children's 
overall intake of added sugars, which makes the weekly dietary limit an 
important second step to align school meals more closely with the goals 
of the Dietary Guidelines. For example, USDA expects that added sugars 
in condiments and toppings will be addressed through the weekly added 
sugars limit, upon implementation. While USDA appreciates public 
comments recommending product-based limits for condiments and toppings, 
such limits were not included in the proposed rule and this final rule 
does not establish product-based added

[[Page 31978]]

sugars limits for these items. USDA expects that the overall weekly 
limit will help to reduce the amount of added sugars offered in 
condiments and toppings. Additionally, although this rule does not 
finalize the grain-based dessert limit at breakfast, USDA expects that 
schools will select grains with less added sugars to meet the weekly 
added sugars limit at breakfast and, as explained below, USDA will 
provide resources to support more nutrient-dense choices at breakfast. 
USDA is also interested in additional stakeholder input on how to 
improve and simplify its grain-based desserts requirements and will 
solicit stakeholder input on grain-based desserts in the coming months.
    USDA also acknowledges respondent concerns regarding the 
palatability of meals with less added sugars and related concerns about 
plate waste and student participation. However, USDA expects that 
gradually phasing in these requirements will give schools time to 
adjust menus and help children gradually adapt to meals with fewer 
added sugars over time.
Added Sugars in the Child and Adult Care Food Program
    For consistency, this final rule applies the product-based added 
sugars limits for breakfast cereals and yogurt to the CACFP. Based on 
public comment, USDA has adjusted the implementation date for CACFP to 
follow the program calendar, which operates on a fiscal year rather 
than a school year. Effective October 1, 2025, the added sugars limits 
will replace the current total sugar limits for breakfast cereals and 
yogurt in CACFP. The existing total sugars limits for breakfast cereals 
and yogurt in CACFP will remain in place until October 1, 2025, when 
the new added sugars limits take effect. However, with State agency 
approval, CACFP operators may choose to implement the added sugars 
limits for breakfast cereals and yogurt early.
    As mentioned in public comments, CACFP operators have successfully 
implemented product-based sugar limits, and this rule updates these 
limits from total sugars to added sugars based on Dietary Guidelines 
recommendations. Although some public comments recommended continuing 
with total sugars limits, that approach would not be consistent with 
the Dietary Guidelines recommendations. And, as noted, added sugars 
information is now available on the Nutrition Facts label.\40\ USDA 
recognizes that many stakeholders would like more consistent 
requirements across child nutrition programs; this final rule supports 
USDA's efforts to better align program requirements. Additionally, in 
response to public comments, USDA clarifies that the per-ounce limit 
for yogurt will be 2 grams of added sugars. While this clarification 
applies to NSLP, SBP, and CACFP, it is most relevant to CACFP, where 
smaller portions may be offered to younger participants and operators 
will more often need to assess compliance with the added sugars limit 
in serving sizes that are smaller than 6 ounces.
---------------------------------------------------------------------------

    \40\ Food Labeling: Revision of the Nutrition and Supplement 
Facts Labels (81 FR 33741, May 27, 2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels. See 
also: 21 CFR 101.9(c)(6)(iii).
---------------------------------------------------------------------------

    CACFP operators provide vital nutrition that contributes to the 
wellness of child and adult participants. USDA recognizes and 
appreciates the important role CACFP operators play in helping child 
and adult participants develop and sustain healthy habits in all stages 
of life. USDA is committed to ensuring that CACFP operators have the 
technical assistance and resources they need to be successful, 
including implementing the changes in this rule.
Alignment With WIC Food Package Standards
    In April 2024, USDA finalized revisions to the WIC food packages to 
incorporate recommendations from the National Academies of Science, 
Engineering, and Medicine (NASEM) in its 2017 scientific report, 
``Review of WIC Food Packages: Improving Balance and Choice,'' and to 
align the food packages with the Dietary Guidelines for Americans, 
2020-2025. The WIC final rule, Special Supplemental Nutrition Program 
for Women, Infants and Children (WIC): Revisions in the WIC Food 
Packages,\41\ updated limits on total sugars, consistent with 
recommendations in the NASEM report. This included establishing limits 
on added sugars in breakfast cereals and yogurt that are consistent 
with the limits in this final rule. CACFP operators may use any State's 
WIC list to identify breakfast cereals and yogurt that may be offered 
in CACFP. Both the WIC final rule and this final rule share the common 
goal of reducing added sugars intake among child and adult participants 
and promoting healthy dietary patterns. This cross-program alignment of 
product-based limits for breakfast cereals and yogurt responds to 
public comments that highlighted the benefits of allowing use of the 
WIC list in CACFP by allowing CACFP providers to use the WIC list to 
identify allowable breakfast cereals and yogurt. It also responds to 
public feedback requesting that USDA streamline requirements across its 
nutrition assistance programs.
---------------------------------------------------------------------------

    \41\ Special Supplemental Nutrition Program for Women, Infants, 
and Children (WIC): Revisions in the WIC Food Packages (April 2024). 
Available at: https://www.fns.usda.gov/wic/fr-041824.
---------------------------------------------------------------------------

Additional Feedback Received in Public Comments
    USDA appreciates public comments on alternative approaches for 
reducing added sugars in school meals. A few respondents suggested a 
stepwise approach for the weekly added sugars limit; for example, by 
starting with 15 percent and then moving to a 10 percent weekly limit. 
The intent of the product-based limit is to provide schools with a path 
toward reaching the 10 percent weekly limit. Other respondents 
recommended a weekly limit below 10 percent; however, a weekly limit 
below 10 percent would go beyond recommendations in the current Dietary 
Guidelines. In this final rule, USDA maintains the proposed weekly 
added sugars limit of 10 percent of calories per week, averaged over 
the week for lunch and breakfast programs, respectively. In public 
comments, some respondents recommended combining lunch and breakfast 
menus under the weekly limit. However, because other school meal 
pattern requirements (including the other dietary specifications for 
calories, saturated fat, and sodium) currently apply by program, USDA 
does not view this as an operationally feasible suggestion. Regarding 
exemption for certain foods from the weekly limit, USDA has determined 
that establishing exemptions may impose unintended burden and 
challenges in calculating and monitoring dietary specifications for the 
entire menu. This final rule does not exempt any foods from the weekly 
added sugars limit for school lunch or breakfast. USDA also 
acknowledges comments that recommended adjusting other meal pattern 
requirements, such as the calorie limits, as part of this change. 
However, USDA did not propose changes to the calorie limits in school 
meals and this final rule does not make changes to the calorie limits 
for school meals.
Product-Based Limits for Breakfast Cereals, Yogurt, and Flavored Milk
    USDA received hundreds of comments regarding the product-based 
limits for breakfast cereals, yogurt, and flavored milks. For example, 
some respondents recommended increasing the product-based added sugars 
limit for breakfast cereals and raised concerns

[[Page 31979]]

about the availability of breakfast cereals that meet the proposed 
limit that children enjoy. Similarly, USDA acknowledges respondent 
concerns about product availability and the palatability of yogurt and 
flavored milks that meet the product-based added sugars limits. 
However, USDA agrees with respondents who stated that the added sugars 
limits are realistic and that many breakfast cereals, yogurts, and 
flavored milks that meet the final limits are or will be available to 
schools. As discussed in the Regulatory Impact Analysis, based on data 
that USDA collected in 2022, 50 percent of breakfast cereals and 57 
percent of yogurts already met the added sugars limits finalized in 
this rule in 2022.\42\ Regarding flavored milk, as noted in public 
comments, the milk industry has committed to reducing added sugars in 
flavored milk to levels that meet the limits finalized in this 
rule.\43\ USDA appreciates public comments from industry that noted 
significant progress in product reformulation and a variety of products 
available in the market that already meet the product-based limits 
finalized in this rule. Additionally, the gradual, phased-in approach 
used in this rule will provide schools time to implement the changes.
---------------------------------------------------------------------------

    \42\ USDA Food and Nutrition Service, Office of Policy Support 
data collection of nutrition label information from major cereal and 
yogurt manufacturer K-12 and food service catalogs. Data were 
collected on 191 total cereal products and 110 total yogurt 
products.
    \43\ In April 2023, the International Dairy Foods Association 
announced its ``Healthy School Milk Commitment.'' According to a 
press release from the International Dairy Foods Association, 
``[b]eginning with the 2025-2026 school year, 37 school milk 
processors representing more than 90% of the school milk volume in 
the United States commit to provide healthy, nutritious school milk 
options with no more than 10 grams of added sugar per 8 fluid ounce 
serving.'' See: International Dairy Foods Association. IDFA 
Announces `Healthy School Milk Commitment' to Provide Nutritious 
Milk with Less Added Sugar for Students in Public Schools, 
Surpassing USDA Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
---------------------------------------------------------------------------

Product-Based Limit for Grain-Based Desserts at Breakfast [Not 
Finalized]
    As noted above, USDA is not finalizing the proposed limit for 
grain-based desserts at breakfast. Public comments raised concerns 
about potential negative impacts of the proposal to the SBP, especially 
to alternative breakfasts that often contain grab-and-go friendly 
items, including grain-based desserts such as breakfast bars and 
toaster pastries. Respondents were concerned about the availability and 
student acceptance of alternative items that can readily be served in 
grab-and-go and other alternative breakfast models. In addition, many 
respondents raised questions about the definition of grain-based 
desserts as currently used in the NSLP and CACFP \44\ or suggested 
alternative approaches to current requirements for those programs. 
Under current requirements, which define grain-based desserts by 
product type, some grain items that are not classified as grain-based 
desserts are higher in added sugars than items that are classified as 
grain-based desserts. Some respondents suggested that rather than 
defining grain-based desserts by product type, USDA should instead 
define grain-based desserts based on the amount of added sugars in 
specific products. For these reasons, many respondents recommended that 
USDA reconsider the proposal. Therefore, in response to stakeholder 
input, USDA is not finalizing the grain-based dessert limit for school 
breakfast.
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    \44\ For NSLP, according to 7 CFR 210.10(c)(2)(iii)(C) 
(previously 7 CFR 210.10(c)(2)(iv)(C), schools may count up to two 
ounce equivalents of grain-based desserts per week toward meeting 
the grains requirement at school lunch. For CACFP, according to 7 
CFR 226.20(a)(4)(iii), grain-based desserts do not count toward 
meeting the grains requirement. The grain-based dessert requirements 
for NSLP and CACFP remain in effect under this final rule.
---------------------------------------------------------------------------

    USDA is committed to supporting alternative breakfast models, such 
as breakfast in the classroom and grab-and-go breakfast, which support 
student participation \45\ by making school breakfast more accessible. 
USDA also appreciates concerns that the current definition of ``grain-
based dessert'' does not target grain products high in added sugar as 
effectively as possible. Although some respondents raised concerns 
about product-based limits for breakfast cereals, yogurt, and flavored 
milk, those comments did not cite operational constraints for 
alternative breakfast models under the proposed limits. Further, as 
detailed above, USDA has determined adequate products will be available 
to meet the product-based limits for breakfast cereals, yogurt, and 
flavored milk finalized in this rule upon implementation.
---------------------------------------------------------------------------

    \45\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M. 
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student 
Participation in School Meals in the United States: A Systematic 
Review, Journal of the Academy of Nutrition and Dietetics, Volume 
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, https://doi.org/10.1016/j.jand.2023.02.016. Available at: https://www.sciencedirect.com/science/article/pii/S221226722300103X.
---------------------------------------------------------------------------

    USDA recognizes that reducing grain items that are high in added 
sugars is one important strategy to support the phased-in 
implementation of the weekly added sugars limit. USDA will continue to 
support implementation of alternative breakfast models by highlighting 
popular grain items that are low in added sugars and that are grab-and-
go friendly. Schools may also consider offering savory grab-and-go 
breakfast items, such as breakfast sandwiches and wraps, to reduce the 
overall added sugars content of school breakfasts. As discussed in 
Section 6: Meats/Meat Alternates at Breakfast, this rule removes the 
minimum grains requirement at breakfast, making it easier for schools 
to offer meats/meat alternates at breakfast. In the absence of a grain-
based dessert limit at breakfast, schools may need additional support 
and guidance to reduce added sugars at breakfast and meet the weekly 
limit upon implementation in SY 2027-2028.
    As discussed below, USDA will provide technical assistance to 
ensure that schools have the resources they need to reduce added sugars 
at breakfast, including meeting the weekly added sugars limit at 
breakfast upon implementation. USDA also seeks to support industry in 
producing breakfast grains which can be part of menus under the weekly 
added sugars limit. The Department will provide voluntary guideposts 
for schools and industry to use to assist them in transitioning to the 
weekly added sugars limits in SY 2027-2028. This will include resources 
that schools may use to identify grain items that are low in added 
sugars.
    USDA is very interested in and will solicit additional stakeholder 
input on improving guidance around grain-based breakfast items. As part 
of this effort, USDA will seek stakeholder input on the current grain-
based desserts requirements, alternative approaches to defining and 
identifying grains that are high in added sugars, and other creative 
ideas for how to address grain-based desserts in the child nutrition 
programs. USDA looks forward to receiving stakeholder feedback on this 
topic in the coming months.
Sweeteners
    This final rule is focused on limits for added sugars, not other 
sweeteners used as sugar substitutes or sugar alternatives. USDA 
acknowledges respondent concerns regarding sweeteners in child 
nutrition programs, referred to in public comments in a variety of 
ways, including ``artificial sweeteners,'' ``non-nutritive 
sweeteners,'' and ``sugar substitutes.'' \46\

[[Page 31980]]

Sweeteners, like all other ingredients added to food in the U.S. food 
supply, must be safe for consumption under the Federal Food, Drug and 
Cosmetic Act.\47\ FDA determines if food additives, such as sweeteners, 
are safe for their intended use. FDA has approved six sweeteners as 
food additives through an extensive evidence-based research 
process.\48\ In addition to the six sweeteners approved as food 
additives, there are three additional sweeteners that are Generally 
Recognized as Safe (GRAS). USDA relies on FDA expertise to safeguard 
the food supply because FDA is the Federal agency responsible for 
assessing the safety of food additives, food ingredients, and 
sweeteners, including artificial sweeteners and nonnutritive 
sweeteners. Therefore, under this final rule, there are no restrictions 
on sweeteners in school meals, such as the use of sugar substitutes and 
nonnutritive sweeteners; this approach aligns with current FDA guidance 
for sweeteners. However, at the local level, schools or districts may 
opt to limit or remove sweeteners from their school lunch and breakfast 
menus, which USDA recognizes that some localities have chosen to do. 
Further, in response to stakeholder concerns about sweeteners, in 
upcoming studies, USDA will include questions regarding school policies 
relating to the use of sweeteners in school meals and will continue to 
monitor FDA research and guidance on this issue.
---------------------------------------------------------------------------

    \46\ Although respondents used a variety of terms in public 
comments, USDA will refer to ``sweeteners'' in this final rule, 
consistent with FDA terminology. U.S. Food and Drug Administration, 
How Sweet It Is: All About Sweeteners, June 9, 2023. Available at: 
https://www.fda.gov/consumers/consumer-updates/how-sweet-it-all-about-sweeteners.
    \47\ U.S. Food and Drug Administration, Aspartame and Other 
Sweeteners in Food, July 14, 2023. Available at: https://www.fda.gov/food/food-additives-petitions/aspartame-and-other-sweeteners-food.
    \48\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M. 
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student 
Participation in School Meals in the United States: A Systematic 
Review, Journal of the Academy of Nutrition and Dietetics, Volume 
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, https://doi.org/10.1016/j.jand.2023.02.016. Available at: https://www.sciencedirect.com/science/article/pii/S221226722300103X.
---------------------------------------------------------------------------

Ongoing Support
    USDA is committed to ensuring that child nutrition program 
operators have ongoing support and will provide additional technical 
assistance and resources to assist schools and child care institutions 
and facilities as they prepare to implement and monitor new or updated 
requirements. USDA appreciates public comments requesting guidance and 
support for monitoring these changes and will update the nutrient 
analysis software approved for use in Administrative Reviews so that it 
includes a dietary specification for added sugars. As noted above, USDA 
will provide resources to support schools and industry in transitioning 
to the weekly added sugars limit in SY 2027-2028 and will make these 
resources available in time to support procurement for SY 2025-2026. 
USDA has already highlighted strategies that schools can use to reduce 
added sugars in Best Practices for Reducing Added Sugars at School 
Breakfast.\49\ For example, schools can:
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    \49\ U.S. Department of Agriculture, Best Practices for Reducing 
Added Sugars at School Breakfast, August 4, 2022. Available at: 
https://www.fns.usda.gov/tn/best-practices-reducing-added-sugars-school-breakfast.
---------------------------------------------------------------------------

     Reduce how often high-sugar foods and beverages are 
offered during the week.
     Use fruit to sweeten smoothies and yogurt instead of added 
sugars.
     Use cinnamon, vanilla, and other spices or extracts to 
enhance recipes with less added sugars.
    In public comments, many respondents suggested that meats/meat 
alternates be allowed in place of grains to help reduce added sugars in 
breakfasts. As discussed in Section 6: Meats/Meat Alternates at 
Breakfast, schools may consider this option as a strategy to reduce 
added sugars at breakfast, since some grain foods commonly offered in 
school breakfasts tend to be higher in added sugars. Schools now have 
the option to offer grains, meats/meat alternates, or a combination of 
both, to meet the combined food component requirement in the SBP. This 
change gives program operators greater flexibility in menu planning and 
increases the variety of food items that can be served at school 
breakfast, helping to address respondent concerns about meeting the 
added sugars limits at breakfast. Local educational agencies may also 
consider updating their local school wellness policies with strategies 
to reduce added sugars in school meals and snacks. USDA also commends 
industry efforts to reduce added sugars in their products, including in 
flavored milk. For example, USDA understands that flavored milk 
processors have already reduced the average amount of added sugars per 
serving of flavored milk since announcing their ``Healthy School Milk 
Commitment'' in April 2023.\50\ As suggested by comments, support from 
industry is crucial to schools' efforts to continue to offer foods that 
are popular with children and also fit within the product-based and 
weekly limits phased in under this rulemaking.
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    \50\ According to the International Dairy Foods Association, 
``When the Commitment was announced in April 2023, flavored milk 
products offered in schools contained an average of 8.2 grams of 
added sugar per serving. By July 2023, the average had fallen to 7.6 
grams of added sugar per serving.'' See: International Dairy Foods 
Association, School Milk Is Critical to Child Nutrition--School Year 
2023-2024. Available at: https://www.idfa.org/wordpress/wp-content/uploads/2023/09/Back-to-School-Milk-Fact-Sheet-2023_2024.pdf.
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    USDA acknowledges public comments that requested increased funding 
to support implementation of the added sugars limits. USDA does not 
have authority to increase the Federal reimbursement rates for school 
meals.\51\ However, USDA launched the HMI Initiative to improve the 
nutritional quality of school meals through food systems 
transformation, recognition, and technical assistance; the generation 
and sharing of innovative ideas and tested practices; and grants. As 
part of a cooperative agreement to develop and implement USDA's HMI 
Initiative, AFHK is offering Recognition Awards for school food 
authorities, including the Breakfast Trailblazer Recognition Award, 
that will recognize school food authorities who implement specific 
strategies to reduce added sugars in school breakfast menus, implement 
an alternative meal service delivery model for breakfast, and use 
student engagement techniques and/or culinary techniques to prepare 
breakfasts that students enjoy. Public comments noted the importance of 
student preferences and participation. Developing healthy dietary 
patterns and taste preferences begins at a young age, and gradually 
decreasing added sugars in school meals can contribute to developing 
student preferences for more nutrient-dense foods, with less added 
sugars, as recommended by the Dietary Guidelines. As part of the HMI 
Initiative, AFHK will host Healthy Meals Summits, where award 
recipients and grantees will share best practices and strategies for 
sustaining their nutritional achievements, including successful 
strategies to reduce added sugars. The summits will celebrate and 
showcase creative strategies for serving healthy, appealing meals and 
the best practices will serve as a blueprint for school food 
authorities nationwide. USDA will also share strategies and success 
stories for reducing added sugars in its communications materials and 
will provide guidance and resources to schools working to reduce

[[Page 31981]]

added sugars in school meals in the months ahead.
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    \51\ The annual payments and rates adjustments for the National 
School Lunch and School Breakfast Programs reflect changes in the 
Food Away From Home series of the Consumer Price Index for All Urban 
Consumers. See: U.S. Department of Agriculture. Rates of 
Reimbursement. Available at: https://www.fns.usda.gov/cn/rates-reimbursement.
---------------------------------------------------------------------------

Assessing Impact of Added Sugars Limits
    USDA recognizes the importance of monitoring progress toward the 
new added sugars limits and assessing the effectiveness of the two-step 
approach. USDA has a long history of examining the nutritional quality 
of school meals through studies such as the School Nutrition and Meal 
Cost Study and the School Nutrition Dietary Assessment Study series. 
The 2024-2025 National School Foods Study will incorporate added sugars 
into this assessment, which is based on an extensive menu survey, 
designed to determine the food and nutrient content of school meals and 
afterschool snacks, examine compliance with nutrition requirements, and 
understand the characteristics of foods and beverages in reimbursable 
meals.
    These studies also assess actual student dietary intake and overall 
diet quality through 24-hour dietary recall interviews. The 2024-2025 
study will establish a ``baseline year'' (SY 2024-2025) for examining 
the impact of the added sugars and sodium limits included in this 
rulemaking.
    In accordance with its commitment to regularly monitor how 
consistent school meals are with the goals of the Dietary Guidelines, 
USDA conducts the School Nutrition and Meal Cost Study on a five-year 
cycle, which will provide another comprehensive assessment in SY 2029-
2030, after both the updated sodium limits and added sugars limits have 
been fully implemented.
    However, to monitor progress and provide data on the effectiveness 
of product-based limits as a step toward meeting the overall weekly 
added sugars limit, USDA will invest in an additional menu assessment 
in SY 2026-2027, between the two School Nutrition and Meal Cost Study 
cycles. This nationally representative survey will focus on the foods 
and beverages that make up reimbursable meals and allow USDA to examine 
the effect of the product-based added sugars limits, which will take 
effect in SY 2025-2026. Additionally, this survey will allow USDA to 
estimate both added sugars and sodium content of reimbursable school 
meals.
    Together these studies will provide USDA with critical evidence 
about rule implementation, effects, and potential barriers and help 
monitor changes in nutrient content of foods over time. This data will 
provide invaluable insight into school meal nutrient composition and 
student dietary outcomes. In addition, USDA will continue current 
practice of using existing data sources--such as the National Health 
and Nutrition Examination Survey--to periodically examine other 
outcomes, including the relationship between estimated school meal 
program participation, diet quality, indicators of nutrition and 
health, food consumption patterns, and nutrient intakes. This in turn 
can inform future policy and rulemaking.
    Accordingly, this final rule codifies the product-based added 
sugars limits for breakfast cereals, yogurt, and flavored milk, and 
codifies the weekly dietary specification for added sugars in NSLP and 
SBP regulations found at 7 CFR 210.10(b)(2)(iii), (c), (d)(1)(iii), 
(f)(3), and (h) and 220.8(b)(2)(iii), (c), (d), and (f)(3). These 
amendments must be implemented by July 1, 2025, except for the weekly 
dietary specification, which must be implemented by July 1, 2027. This 
final rule also replaces total sugar limits for breakfast cereals and 
yogurt with added sugars limits in CACFP regulations found at 7 CFR 
226.20(a)(4)(ii), (a)(5)(iii)(B), (b)(5), and (c). The CACFP amendments 
must be implemented by October 1, 2025.

Section 3: Milk

    This section includes the following sub-sections:
     Section 3A discusses requirements for flavored milk in the 
NSLP, SMP, SBP, and CACFP, and for milk sold [agrave] la carte (i.e., 
as a Smart Snack in School).
     Section 3B provides an overview of comments that USDA 
received in response to the proposed rule's request for input on fluid 
milk substitutes in the child nutrition programs.
     Section 3C discusses the nutrient requirements for fluid 
milk substitutes.

Section 3A: Flavored Milk

Current Requirement

    The National School Lunch Act (42 U.S.C. 1758(a)(2)(i)) requires 
schools to offer students a variety of fluid milk at lunch; such milk 
must be consistent with the most recent Dietary Guidelines. The Child 
Nutrition Act (42 U.S.C. 1773(e)(1)(A)) requires school breakfasts to 
meet the same terms and conditions set forth for school lunches in the 
National School Lunch Act (42 U.S.C. 1758), including the requirements 
for fluid milk. Current regulations at 7 CFR 210.10(d)(1)(i), 220.8(d), 
and 210.11(m) allow schools to offer fat-free and low-fat (1 percent 
fat) milk, flavored and unflavored, in reimbursable school lunches and 
breakfasts, and for sale [agrave] la carte. The current regulations 
also require that unflavored milk be offered at each school meal 
service. Fat-free and low-fat milk, flavored and unflavored, may also 
be offered to participants ages 6 and older in the SMP and CACFP (7 CFR 
215.7a(a) and 226.20(a)(1)(iii)). Lactose-free and reduced-lactose milk 
meet the meal pattern requirements for fluid milk (7 CFR 
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). The current 
milk requirements took effect on July 1, 2022.

Proposed Rule

    USDA proposed the following two alternatives for milk requirements 
in the school lunch and breakfast programs and invited public comment 
on both:
     Alternative A: Allow flavored milk (fat-free and low-fat) 
at school lunch and breakfast for high school children only, effective 
SY 2025-2026. Under this alternative, USDA proposed that children in 
grades K-8 would be limited to a variety of unflavored milk. USDA also 
requested public input on whether to allow flavored milk for children 
in grades 6-8 as well as high school children (grades 9-12). Children 
in grades K-5 would again be limited to a variety of unflavored milk. 
Under both Alternative A scenarios, flavored milk would be subject to 
the new proposed added sugars limit (10 grams of added sugars per 8 
fluid ounces).
     Alternative B: Continue to allow all K-12 schools to offer 
fat-free and low-fat milk, flavored and unflavored, with the new 
proposed added sugars limit for flavored milk (10 grams of added sugars 
per 8 fluid ounces).
    USDA also proposed a minor technical change to the regulatory text 
for milk sold [agrave] la carte. Instead of repeating the allowable 
milk types in 7 CFR 210.11(m), which describes the beverages that 
schools can sell [agrave] la carte, USDA proposed to cross-reference 7 
CFR 210.10(d). This change was intended to clarify that the NSLP milk 
requirements apply to milk sold [agrave] la carte.

Public Comments

    USDA received over 1,600 comments on flavored milk, including 
almost 600 unique comments. Of these, over 1,500 supported flavored 
milk, including about 375 unique comments. About 70 opposed flavored 
milk, including about 50 unique comments. Additionally, specific 
comment counts regarding Alternative A and Alternative B proposals are 
described in more detail below. A wide range of stakeholders, including 
State agencies, school nutrition professionals, advocacy groups, 
industry respondents, professional associations, dietitians, parents, 
and students commented on the proposed milk alternatives. At a high

[[Page 31982]]

level, respondents provided the following feedback on flavored milk:
     Flavored milk is the leading source of added sugars in 
school meals.
     Offering flavored milk, which is a more palatable option 
for some children, improves children's milk consumption and reduces 
milk waste.
     Milk is an important source of calcium, protein, and other 
micronutrients.
     USDA should consider operational constraints, such as a 
lack of storage space for flavored milk, when determining which milk 
alternative to finalize.
    More detailed respondent feedback, including respondent input on 
the two alternatives, is discussed below.
Alternative A: Allow Flavored Milk for Older Students Only
    Fifty-five respondents, including 36 unique comments, representing 
school nutrition professionals, parents, and advocacy groups, supported 
Alternative A. A school nutrition professional suggested that 
Alternative A would help transition students away from flavored milk 
and reduce their consumption of added sugars. This respondent suggested 
that after students who are currently in grades K-5 transition to 
middle and high school, USDA could apply the limit to older children, 
too. A parent agreed, asserting that water and unflavored milk are the 
only beverages that young children should consume. A school nutrition 
professional stated that, although flavored milk is the most popular 
choice, the amount of added sugars in flavored milk is ``unnecessary 
for our student's diets.'' This respondent argued that students are 
already exposed to too much added sugars outside of school meals. 
Another Alternative A proponent stated that flavored milk should be a 
treat for younger students, not an everyday choice. An advocacy group 
noted that flavored milk is a top contributor to added sugars intake 
and that younger children overconsume added sugars at a higher rate 
than older children.
    Some respondents opposed flavored milk in school meals entirely. 
Several advocacy groups recommended that USDA limit flavored milk 
options for all grade levels. Many respondents urged USDA to limit 
flavored milk to the greatest extent possible, citing that nutrients 
found in milk are also found in other foods that are lower in added 
sugars. An individual argued that flavored milk should not be served in 
school meals because the added sugars ``cancels out any potential 
benefits of consuming milk.'' A school district opposed flavored milk 
and mentioned that flavored milk is not offered at any of their 
schools. An advocacy group urged USDA to prohibit flavored milk in 
school meals due to the harmful public health impacts of added sugars 
consumption.
    A few respondents addressed concerns about Alternative A's 
potential impact on children's milk consumption. An advocacy group 
cited research that found a ``modest decrease'' in student milk 
consumption when flavored milk was removed from schools but noted that 
the same study found ``no significant reductions in average per-student 
intake of calcium, protein, or vitamin D from milk.'' The respondent 
added that the same study found a decline in added sugars intake from 
removing flavored milk. However, this advocacy group recommended that 
USDA periodically monitor milk consumption and intake of milk-related 
nutrients if Alternative A is implemented.
    In addition to general feedback, USDA requested public input on the 
following questions related to Alternative A:
     Do respondents that support Alternative A have specific 
input on whether USDA should limit flavored milk to high schools only 
(grades 9-12) or to middle schools and high schools only (grades 6-12)?
     If Alternative A is finalized with restrictions on 
flavored milk for grades K-8 or K-5 in NSLP and SBP, should USDA also 
pursue a similar change in SMP and CACFP?
     Are there any special considerations USDA should keep in 
mind for SMP and CACFP operators, given the differences in these 
programs compared to school meal program operators?
    In response to the first question, one industry respondent 
supported limiting grades K-8 to unflavored milks only, if this change 
is accompanied by a reduction in minimum required calories or an 
increase in program funding. This respondent explained that when 
omitting flavored milk, menus are significantly higher in cost due to 
adding calories from other food groups to meet the required minimum 
calories. A school district and a dietitian each supported removing 
flavored milk from the school meal programs entirely but stated that if 
USDA maintains flavored milk for some students, it should be limited to 
grades 9-12 only. A few advocacy groups also supported limiting 
elementary and middle schools to offering unflavored milk only. A few 
other advocacy groups supported allowing flavored milk for grades 6-12 
and limiting grades K-5 to unflavored milk only; one suggested that 
this approach would give middle schools students, who are old enough to 
make healthy food choices, the option to choose flavored or unflavored 
milk.
    Regarding the second question, over 100 respondents, including 34 
unique comments, addressed whether USDA should pursue a similar change 
in SMP and CACFP, if Alternative A is finalized for school meals. One 
CACFP sponsoring organization did not support further restricting 
flavored milk options in CACFP. A few advocacy groups representing 
CACFP sponsoring organizations stated they ``categorically oppose'' 
Alternative A and that ``USDA should not pursue a similar change in 
CACFP.'' Another advocacy group opposed limiting flavored milk to older 
children only in the CACFP, asserting that ``acceptance of milk would 
decrease'' if flavored milk is not permitted. A State agency also 
opposed limiting flavored milk to older children only in the CACFP, 
noting that some children participating in the afterschool component of 
CACFP engage in physical activities, where flavored milk could be a 
suitable recovery beverage. A CACFP sponsoring organization agreed, 
suggesting that children who participate in their afterschool care 
program prefer flavored milk.
    However, a State agency supported implementing similar changes in 
SMP and CACFP to support consistency in program requirements, if 
Alternative A is finalized for school meals. An individual also 
supported similar changes in SMP and CACFP, arguing that this would 
help reduce added sugars intake and help establish healthy eating 
patterns for young children. This respondent stated that special 
considerations for these programs are ``unnecessary.'' A school 
district also supported similar changes in SMP and CACFP ``for 
consistent messaging and implementation.''
Alternative B: Continue To Allow Flavored Milk for All K-12 Students
    About 800 respondents, including 180 unique comments, including 
State agencies, school nutrition professionals, industry respondents, 
and individuals, supported Alternative B. Many cited children's 
preference for flavored milk as a key reason for supporting Alternative 
B. For example, a school district shared that they serve 90 percent 
flavored milk and 10 percent unflavored milk, and a dietitian asserted 
that 95 percent of the children at their school drink flavored milk and 
the children ``won't drink milk anymore'' if they only offer unflavored 
milk. A school food service professional supported Alternative B 
because a

[[Page 31983]]

majority of the milk they purchase (97 percent) is flavored milk and 
they would ``rather students take some form of milk than none at all.'' 
Numerous other respondents agreed, claiming that flavored milk is 
associated with higher milk consumption and student participation. One 
respondent emphasized the importance of allowing choice and teaching 
students how to consume all foods and beverages in moderation.
    A national organization representing tens of thousands of school 
nutrition professionals supported Alternative B, acknowledging that 
``milk processers have significantly reduced added sugar[s]'' in 
flavored milk served in schools. A school nutrition professional, a 
parent, and other respondents also recognized the importance of 
reducing added sugars, but maintained that student participation should 
be a priority; thus, these respondents supported Alternative B. 
Respondents also noted that flavored milk is an important source of 
nutrients such as calcium and protein. A dietitian asserted that a 
small amount of added sugars in milk helps students receive the 
nutritional benefits of milk. One respondent claimed that children not 
drinking milk is more ``detrimental to [student] health than added 
sugars in flavored milk,'' and therefore supported continuing to allow 
flavored milk for all K-12 students. Another respondent supported 
lowering added sugars in flavored milks, but not restricting flavored 
milks. Respondents also stated that restricting flavored milk may cause 
students to consume other beverages, including sugary beverages like 
soda and energy drinks.
    Several respondents that supported Alternative B raised operational 
concerns regarding Alternative A. A State agency suggested that many 
rural schools have one building and may only have one milk cooler for 
grades K-12. The State agency also noted that many schools serve meals 
to students across grades in the same meal service (for example, grades 
5-7 or grades 7-9) and it would be difficult for students to understand 
if one grade can have flavored milk and others cannot. Similarly, 
another State agency mentioned that some of their schools have grades 
6-12 in one building, and ``changing out the milk adds one more task to 
a busy lunch period.'' This respondent added that some schools do not 
have extra refrigeration space to remove flavored milk from their milk 
cooler during the meal service. A third State agency also noted that 
schools in their State have many unique grade configurations, including 
grades K-6, K-12, and 7-12. This State agency noted that it would be 
``very burdensome'' for schools to move milk in and out of coolers 
between meal services for different grades, and that the challenges of 
implementing Alternative A would be even more difficult when different 
grades are served during the same meal periods.
    An individual noted that implementing Alternative A could be 
difficult for school employees, who would be responsible for explaining 
the change to families. A dietitian agreed, suggesting that Alternative 
A would send a ``confusing message.'' A State agency cited concerns 
about supply chain issues and prices, arguing that schools already have 
limited choices, and further restrictions would negatively impact price 
and availability. A school district raised purchasing concerns, noting 
that purchasing for a large district is ``complicated'' and that 
Alternative A could create more confusion for vendors. A State agency 
suggested Alternative A would increase monitoring requirements. A 
different State agency raised similar concerns, especially when 
multiple grades share meal services. For example, this State agency 
noted that differing milk requirements by grade level could create 
challenges during an Administrative Review, as a reviewer would have to 
inquire about a student's grade level when they are passing through the 
lunch line, to ensure the student received a compliant milk.
Other Comments on Flavored Milk
    Some respondents offered their own alternatives or suggested 
changes to the milk requirements. For example, instead of finalizing 
Alternative A, several respondents suggested limiting flavored milk to 
lunch only and requiring unflavored milk at breakfast. One respondent 
supported Alternative A, but for a different approach, suggested 
allowing flavored milk only once per week for grades 9-12. A few 
respondents, including an advocacy group and school districts, 
recommended that USDA allow schools to choose which alternative to 
implement.
    Other respondents encouraged USDA to expand milk options beyond 
fat-free and low-fat milk. For example, one school district suggested 
USDA allow reduced-fat (2 percent), unflavored milk, arguing that this 
option is more palatable for students. One respondent suggested 
allowing whole milk in school meals, while another agreed and 
specifically suggested allowing whole, flavored milk. A State elected 
official encouraged USDA to allow reduced-fat and whole milk options, 
asserting that this would increase milk consumption and reduce milk 
waste. An industry respondent agreed, stating that they are confident 
that the next edition of the Dietary Guidelines will ``look more 
favorably on dairy at all fat levels.'' This respondent urged USDA to 
allow reduced-fat and whole milk in school meals in anticipation of 
what the industry respondent expects in the next Dietary Guidelines. A 
dietitian suggested USDA consider ``increasing the allowable fat and 
calories'' in milk options.
    A State agency urged USDA to reconsider the requirement to provide 
a variety of fluid milks (i.e., at least two options) with each meal 
service. This respondent argued that the variety requirement leads to a 
lot of waste. A school food service professional agreed, suggesting 
that providing variety contributes to waste. This respondent stated 
that ``skim [milk] is almost never chosen and ends up wasted.'' A 
professional organization cautioned that limiting flavored milk options 
could potentially effect meal participation and financial viability for 
schools. A school district respondent requested that USDA increase 
funding for Farm to School and equipment grant projects to support more 
locally produced milk and bulk milk dispensers.

Final Rule

    This final rule codifies the proposal to maintain the current milk 
regulations, with minor technical changes, at 7 CFR 210.10(d), 
220.8(d), and 210.11(l).\52\ Under this final rule, all schools 
continue to have the option to offer fat-free and low-fat milk, 
flavored and unflavored, to K-12 students, and to sell fat-free and 
low-fat milk, flavored and unflavored, [agrave] la carte. Consistent 
with current requirements, unflavored milk must be offered at each 
school breakfast and lunch meal service. SMP and CACFP operators may 
continue to offer fat-free and low-fat milk, flavored and unflavored, 
to participants ages 6 and older. Additionally, as a reminder, lactose-
free and reduced-lactose milk will continue to meet the meal pattern 
requirements for fluid milk under this final rule (7 CFR 
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)).
---------------------------------------------------------------------------

    \52\ This final rule redesignates the paragraph outlining 
requirements for competitive beverages, which was previously 7 CFR 
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the 
requirements for milk sold as a competitive beverage are outlined at 
7 CFR 210.11(l).
---------------------------------------------------------------------------

    Under requirements established in this final rule for added sugars, 
as discussed in Section 2: Added Sugars, flavored milk offered to K-12 
students

[[Page 31984]]

in the NSLP and SBP and sold to students [agrave] la carte during the 
school day must comply with the product-based added sugars limit. Under 
this product-based limit requirement, effective SY 2025-2026, flavored 
milk must contain no more than 10 grams of added sugars per 8 fluid 
ounces, or for flavored milk sold [agrave] la carte in middle and high 
schools, 15 grams of added sugars per 12 fluid ounces.
    USDA is committed to ensuring that school meals provide children 
with nutrient-dense foods and beverages that are consistent with the 
goals of the most recent Dietary Guidelines. USDA recognizes that dairy 
products, including fluid milk, provide a variety of essential 
nutrients--some of which are underconsumed among school-aged children. 
The decision to allow flavored, low-fat milk acknowledges concerns 
expressed in public comments about declining milk consumption among 
school-aged children. It also acknowledges the nutrients that milk 
provides (e.g., calcium, vitamin D, and potassium), which remain 
nutrients of public health concern for the general U.S. population 
because they are underconsumed.\53\ Respondents expressed the 
importance of considering milk palatability and acceptability when 
establishing long-term requirements.
---------------------------------------------------------------------------

    \53\ U.S. Department of Agriculture and U.S. Department of 
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Page 36. Available at: 
DietaryGuidelines.gov.
---------------------------------------------------------------------------

    Many stakeholders raised concerns about the potential impact on 
milk consumption if flavored milk options were limited under 
Alternative A. USDA recognizes that both flavored and unflavored milk 
provide children with key nutrients. Flavored milk has been shown to 
encourage milk consumption among school-aged children,\54\ and public 
comments from school nutrition professionals suggest that children may 
select and consume flavored milk more often than unflavored milk. For 
example, USDA research from SY 2014-2015 found that about 18 percent of 
low-fat, flavored milk offered with school lunch was wasted, compared 
to 35 percent of low-fat, unflavored milk.\55\ USDA acknowledges the 
benefit of allowing flavored milk to be offered as a strategy to 
promote milk consumption, a beverage that provides several nutrients 
that are underconsumed during childhood and adolescence. Additionally, 
many respondents stated that flavored milk is purchased in higher 
quantities compared to unflavored milk, affirming that flavored milk is 
a popular choice among students. Offering both flavored and unflavored 
varieties of milk as part of a nutritious school meal may help to 
minimize the gap between current and recommended intakes of key 
nutrients among school-aged children and adolescents. For example, a 
USDA study found that K-12 students who participated in NSLP were 
significantly more likely to consume milk compared to students who did 
not participate.\56\ Thus, the school meal programs remain a 
contributing factor in influencing milk consumption among children. 
USDA acknowledges the importance of allowing schools the option to 
offer milk varieties that children will consume and enjoy.
---------------------------------------------------------------------------

    \54\ See page 58. Institute of Medicine, Nutrition Standards for 
Foods in Schools: Leading the Way Toward Healthier Youth (``IOM 
Report''). Available at: https://nap.nationalacademies.org/catalog/11899/nutrition-standards-for-foods-in-schools-leading-the-way-toward. 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.
    \55\ See Table 5.1: Mean Percentage of Observed Trays including 
Specific Foods and Mean Percentage of Observed Foods Wasted in NSLP 
Lunches. 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://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
    \56\ U.S. Department of Agriculture, Food and Nutrition Service, 
Office of Policy Support, School Nutrition and Meal Cost Study 
Volume 4: Student Participation, Satisfaction, Plate Waste, and 
Dietary Intakes Appendix I-P. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
---------------------------------------------------------------------------

    USDA recognizes that some stakeholders supported limiting flavored 
milk options under Alternative A. USDA appreciates public input on 
Alternative A, which would have limited flavored milk offerings to 
older students, in grades 9-12 or grades 6-12. Several respondents 
acknowledged that Alternative A would help reduce the intake of 
beverages with added sugars, especially for younger children. Advocacy 
groups and parents also supported this alternative as a way to 
transition students from flavored to unflavored milk and reduce their 
consumption of added sugars. Conversely, other respondents raised 
important concerns about the operational feasibility if Alternative A 
were finalized. For example, one school district explained that some 
schools serve multiple grades in a single meal service, and students 
from grades K-12 may be in the cafeteria at the same time. These 
schools may not have the opportunity or capacity to limit milk options 
as children from different grade levels pass through the serving lines, 
and would have to monitor student milk selections by grade level to 
ensure compliance with Alternative A. A few State agencies added that 
limiting flavored milk options by grade levels could be challenging to 
monitor during Administrative Reviews. USDA acknowledges respondent 
concerns that Alternative A could be difficult to implement and 
monitor, especially for small schools or schools where students from 
different grade levels share the same meal service. Due to the 
variability in school size, grade level configurations, storage and 
cafeteria space, and overall operations, USDA recognizes that 
Alternative A could cause unintended operational and administrative 
challenges for both schools and State agencies. USDA appreciates the 
important concerns raised by stakeholders, particularly on behalf of 
small schools, and considered this input in the final rule.
    USDA recognizes that under this final rule, flavored milk will 
continue to contribute to added sugars in school meals. However, as 
noted in Section 2: Added Sugars, this rulemaking also finalizes a 
product-based added sugars limit for flavored milk. By SY 2025-2026, 
schools must implement a product-based limit for flavored milk of no 
more than 10 grams of added sugars per 8 fluid ounces or, for flavored 
milk sold as a competitive food for middle and high schools, 15 grams 
of added sugars per 12 fluid ounces. In SY 2027-2028, this rule will 
also implement an overall weekly limit for added sugars of less than 10 
percent of calories per week. USDA expects that these actions, as well 
as the other product-based added sugars limits finalized in this 
rulemaking, will support an overall decrease in the added sugars 
content of school meals. Additionally, as noted above, this final rule 
maintains that NSLP and SBP operators who choose to offer flavored milk 
must also offer unflavored milk (fat-free or low-fat) to students in 
the same meal service. This requirement ensures that milk variety in 
the NSLP and SBP is not limited to flavored milk choices, and that a 
nutrient-dense form of milk that is lower in added sugars (i.e., 
unflavored milk) is always available for students to select. USDA is 
committed to advancing the nutritional quality of school meals and 
reducing added sugars to safeguard children's health and align with the 
goals of the most recent Dietary Guidelines.
    USDA appreciates respondent feedback on additional approaches to

[[Page 31985]]

reduce added sugars intake from flavored milk. For example, respondents 
suggested that schools can limit flavored milk options to lunch only, 
procure flavored milks with the least amount of added sugars, or limit 
flavored milk to one day per school week. Additionally, there is no 
requirement that schools offer flavored milk, and schools may choose to 
remove all flavored milk from school meal menus as long as the school 
continues to offer a variety of fluid milk. For example, one school 
district commented that they have removed flavored milk from their 
menus to support school wellness. USDA encourages schools to consider 
these strategies to further reduce added sugars in school meals and to 
choose options that work best for their unique communities.
    Respondents also raised other ideas and suggestions related to milk 
requirements. For example, some respondents encouraged USDA to remove 
the milk variety requirement. The requirement to offer a variety of 
milk options is mandated by statute, and USDA does not have the 
authority to change this statutory requirement (42 U.S.C. 
1758(a)(2)(i)). Schools have several options to meet the milk variety 
requirement, such as offering unflavored fat-free and unflavored low-
fat milk. Schools may also offer lactose-free or reduced-lactose milk 
(fat-free or low-fat) to meet the milk variety requirement. Other 
respondents recommended USDA allow schools to offer milk with a higher 
fat content. While USDA appreciates comments suggesting schools be 
allowed to offer reduced fat and whole milk, allowing these milk 
options in the school meal programs would not be consistent with the 
goals of the most recent Dietary Guidelines as required by the NSLA and 
would make it difficult for menu planners to achieve weekly dietary 
specifications without exceeding calorie and saturated fat limits. 
Statutory requirements state that milk offered in reimbursable school 
meals must be consistent with the most recent Dietary Guidelines, and 
the Dietary Guidelines, 2020-2025 recommends unsweetened, fat-free or 
low-fat milk for school-aged children. Therefore, USDA does not permit 
reduced-fat or whole milk in the school meal programs (7 CFR 
210.10(d)(1)(i) and 220.8(d)).
    As mentioned above, this final rule does not change any milk 
requirements in CACFP. Many respondents requested that milk standards 
established in school meal programs be consistent with the CACFP. 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.
    Accordingly, this final rule makes minor technical changes to the 
requirements found in 7 CFR 210.10(d)(1), 210.11(l)(1)(ii), (l)(2)(ii), 
and (l)(3)(ii),\57\ and 220.8(d). This final rule continues to allow 
NSLP and SBP operators to offer unflavored or flavored, fat-free or 
low-fat milk as part of a reimbursable meal and for sale [agrave] la 
carte, and to allow flavored, low-fat milk in the SMP and in the CACFP 
for participants ages 6 and older. Because this rule finalizes the 
current flavored milk requirements, child nutrition program operators 
will not need to make changes to their menus to comply with this 
provision, beyond those changes described in Section 2: Added Sugars.
---------------------------------------------------------------------------

    \57\ This final rule redesignates the paragraph outlining 
requirements for competitive beverages, which was previously 7 CFR 
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the 
requirements for milk sold as a competitive beverage are outlined at 
7 CFR 210.11(l).
---------------------------------------------------------------------------

Section 3B: Fluid Milk Substitutes: Responses To Request for Input

Current Requirement

    As noted in Section 3A: Flavored Milk, the National School Lunch 
Act requires fluid milk (cow's milk) to be offered with every school 
breakfast and lunch. The statute is also very specific about allowable 
fluid milk substitutes for non-disability reasons. To provide a 
substitute for cow's milk in the school meal programs, the statute 
requires:
     That the fluid milk substitute is nutritionally equivalent 
to fluid milk and meets nutritional standards established by the 
Secretary, which must include fortification of calcium, protein, 
vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C. 
1758(a)(2)(B)(i)). This requirement also applies to the CACFP (42 
U.S.C. 1766(g)(4)(B)).
     That the substitution is requested in writing by a medical 
authority or the child's parent or legal guardian (42 U.S.C. 
1758(a)(2)(B)(ii)). This requirement also applies to CACFP (42 U.S.C. 
1766(g)(4)(C)(i)(II)).
     That the school notify the State agency if it is providing 
fluid milk substitutes for non-disability reasons (42 U.S.C. 
1758(a)(2)(B)(ii)).
     That the school cover any expenses related to providing 
fluid milk substitutes in excess of program reimbursements (42 U.S.C. 
1758(a)(2)(B)(iii)). This requirement also applies to institutions or 
facilities in the CACFP (42 U.S.C. 1766(g)(4)(D)).
    Under current school meal regulations, the statutory requirements 
for fluid milk substitutes for non-disability reasons are codified in 
two places:
     Current 7 CFR 210.10(d)(3) details the nutrition 
requirements for fluid milk substitutes for non-disability reasons.
     Current 7 CFR 210.10(m)(2)(i) through (iii) detail 
additional requirements for fluid milk substitutes for non-disability 
reasons, such as the process for requesting a fluid milk substitute on 
behalf of a student.
    Under current CACFP regulations, the statutory requirements for 
fluid milk substitutes are codified at 7 CFR 226.20(g)(3).
    As a point of clarification, the statute and program regulations 
require schools, institutions, and facilities to provide meal 
modifications for participants with a disability that restricts their 
diet. Lactose intolerance may be considered a disability. For example, 
a child whose digestion is impaired due to lactose intolerance may be 
considered a person with a disability who requires a substitution for 
cow's milk. In this example, if a student cannot consume cow's milk due 
to a disability, and the school food authority obtains a written 
medical statement as documentation of the student's disability, the 
school is required to provide a substitution for cow's milk. Further, 
when providing a meal modification for a participant's disability, the 
substitution for cow's milk does not need to meet the non-disability 
fluid milk substitute requirements. When providing a meal modification 
for a participant's disability, the school, institution, or facility 
would review the participant's medical statement which must include a 
recommended alternative to accommodate the participant with a 
disability,\58\ and the substitution would not be required to meet the 
nutrition requirements for non-disability fluid milk substitutes. The 
nutrition requirements for non-disability fluid milk substitutes apply 
only in non-disability situations. This section will focus on non-
disability fluid milk substitute requirements. Please see Section 14: 
Meal Modifications for a more detailed overview of meal modifications 
for disability reasons,

[[Page 31986]]

including updates made by this rulemaking.
---------------------------------------------------------------------------

    \58\ However, Program operators should not deny or delay a 
requested modification because the medical statement does not 
provide recommended alternatives. When necessary, Program operators 
should work with the participant's parent or guardian to obtain a 
supplemental medical statement. See Question 17. U.S. Department of 
Agriculture, Accommodating Disabilities in the School Meal Programs: 
Guidance and Questions and Answers (Q&As). April 25, 2017. Available 
at: https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas.
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to reorganize the NSLP regulatory text related to 
fluid milk substitutes for non-disability reasons to clarify the 
requirements for requesting and providing non-disability fluid milk 
substitutes in the school meal programs. The rule proposed to move the 
NSLP regulatory text explaining the non-disability fluid milk 
substitute requirements from paragraph (m) of 7 CFR 210.10--which 
currently discusses exceptions and variations allowed in reimbursable 
meals--to paragraph (d) of 7 CFR 210.10--which discusses the fluid milk 
requirements.
    USDA did not propose substantive changes to the requirements for 
non-disability fluid milk substitutes. As noted in the proposed rule, 
USDA does not have the authority to change the statutory requirements 
for non-disability fluid milk substitutes. However, USDA requested 
public input on the current fluid milk substitute process, particularly 
from parents and guardians with firsthand experience requesting a non-
disability fluid milk substitute on behalf of their child, and program 
operators with firsthand experience processing a request.

Public Comments

    USDA received 390 comments with feedback about the current fluid 
milk substitute process, including 194 unique comments. Several 
respondents encouraged USDA to make the process of requesting and 
providing fluid milk substitutes less cumbersome so that participants 
can more easily access substitutes. These respondents offered a variety 
of suggestions for USDA, State agencies, schools, institutions, and 
facilities to consider to improve access to fluid milk substitutes. For 
example, respondents suggested:
     Pursuing a public education campaign to encourage medical 
screening of children with possible lactose intolerance and milk 
allergies.
     Developing informational fliers with basic facts about 
lactose intolerance and milk allergies to be posted in school 
cafeterias and community clinics and sent home with children.
     Improving awareness of the process of requesting fluid 
milk substitutes among school food service professionals, parents, 
guardians, and students, for example, by:
     Clarifying that schools are authorized and encouraged to 
provide fluid milk substitutes for non-disability reasons based on a 
parent or guardian request.
     Issuing guidance with examples of reasons students may 
request a non-disability fluid milk substitute, such as following a 
vegan diet.
     Simplifying the process of requesting a fluid milk 
substitute for a participant, for example, by:
     Including in registration materials a simple way for 
parents and guardians to request a fluid milk substitute, such as a 
form with a checkbox.
     Providing a model notice and form parents and guardians 
may use to request a fluid milk substitute that schools, institutions, 
or facilities can post on their website and mail to families.
     Providing a list or database of allowable fluid milk 
substitutes, such as fortified soy beverages or pea protein milk.
     Identifying more shelf-stable fluid milk substitute 
options, especially for small schools, institutions, and facilities 
where only a few participants request a fluid milk substitute.
     Clarifying the differences between meal modifications for 
disability reasons and fluid milk substitutes for non-disability 
reasons.
     Creating a focus group of students, school nutrition 
professionals, district officials, and parents and guardians from 
across the country to further understand the barriers students face in 
accessing fluid milk substitutes.
     Providing additional reimbursement or funding to schools 
that offer non-disability fluid milk substitutes.
    Several respondents had additional feedback on the process of 
identifying products that meet the nutrition requirements for fluid 
milk substitutes. One advocacy group and a few other respondents 
encouraged USDA to modify the process of identifying acceptable fluid 
milk substitutes so that program operators can refer to the Nutrition 
Facts label, noting that currently, some of the required nutrients are 
not always listed on the label. A State agency observed that when a 
required nutrient is not included on the Nutrition Facts label, schools 
need to contact the manufacturer to obtain nutrition information. 
Another State agency and an advocacy group argued that the current 
process makes it difficult for program operators to offer fluid milk 
substitutes. Further, a State agency suggested the requirement for 
micronutrients in fluid milk substitutes is ``excessive,'' suggesting 
that requiring substitutes to match the micronutrient profiles of milk 
discounts the other nutrition benefits of fluid milk substitutes.
    A few respondents offered suggestions that would conflict with the 
statutory requirements for fluid milk substitutes, as detailed in the 
``Current Requirements'' section above. For example, respondents 
suggested that USDA:
     Make non-dairy milk options available to all children and 
allow more beverages to be offered as fluid milk substitutes.
     Remove the requirement for parents, guardians, or a 
medical authority to request the fluid milk substitute.
     Remove the requirement that school food authorities notify 
the State agency if any of its schools choose to offer fluid milk 
substitutes for non-disability reasons.
     Make broader changes to the meal pattern requirements, 
such as removing the requirement to offer fluid milk altogether.
    A few respondents offered suggestions related to other proposals 
included in the rule. An industry respondent and an advocacy group 
suggested that if USDA finalizes added sugars limits for flavored cow's 
milk, the same limits should apply to fluid milk substitutes. However, 
another respondent recommended that if USDA applies a sugar limit to 
fluid milk substitutes, that the limit be for total sugars (rather than 
added sugars). One State agency requested clarification about whether 
flavored milk restrictions for K-5 or K-8 students would apply to fluid 
milk substitutes, if they are finalized for cow's milk. Other 
respondents supported and recommended maintaining the current non-
disability fluid milk substitute process. An industry respondent 
affirmed that it is important for non-dairy fluid milk substitutes to 
provide nutrients similar to cow's milk. An advocacy group agreed, 
noting that except for fortified soy beverages and soy yogurt, the 
Dietary Guidelines do not include plant-based beverages as part of the 
dairy group. This respondent supported maintaining the statutory 
requirement that fluid milk substitutes be nutritionally comparable to 
cow's milk. Another industry respondent affirmed that USDA developed 
the nutritional requirements for fluid milk substitutes ``on the basis 
of nutrition science and in accordance with statutory requirements.'' 
An advocacy group supported the current process for fluid milk 
substitutes, arguing that it ``works well for school meal program 
operators'' and provides clear guidelines. A State agency agreed, 
suggesting that soy milk

[[Page 31987]]

and lactose-free milk are ``readily available'' and are nutritious 
options for children.
    One industry respondent appeared to misunderstand the types of 
fluid milk substitutes that are permitted for non-disability reasons. 
This respondent argued that certain non-dairy milks are not 
nutritionally equivalent to cow's milk and that students should either 
drink cow's milk or water. To clarify, to be allowed as a non-
disability fluid milk substitute, a product must meet nutritional 
requirements outlined in regulation. These statutory requirements 
ensure that fluid milk substitutes are nutritionally equivalent to 
fluid milk (42 U.S.C. 1758(a)(2)(B)(i) and 42 U.S.C. 1766(g)(4)(B)). 
Non-dairy milks that do not meet the nutritional requirements outlined 
in regulation are not allowable fluid milk substitutes. Another 
industry respondent confirmed that most plant-based milks, such as 
almond, coconut, and rice milks, do not currently meet the nutrient 
standards to qualify as fluid milk substitutes.
    Some respondents provided input on lactose-free or reduced-lactose 
milk. Low-fat or fat-free lactose-free and reduced-lactose milk are 
milk under the statute and program regulations (42 U.S.C. 
1758(a)(2)(A)(ii) and 7 CFR 210.10(d)(1)(i), 220.8(d), and 
226.20(a)(1)). This means that schools, institutions, and facilities 
may offer lactose-free and reduced-lactose milk toward the milk 
requirements without obtaining a request from a parent or guardian or a 
medical authority. A few industry respondents encouraged USDA to 
provide incentives to schools that opt to offer lactose-free milk on a 
routine basis to all students who want it, and to work with industry to 
facilitate more extensive offerings of lactose-free milk in schools. 
For example, these respondents suggested that USDA design a 
specification for 8-ounce, lactose-free milk and offer it through USDA 
Foods. Similarly, a State agency noted that it would be helpful if 
processors packaged 8-ounce, lactose-free or reduced-lactose milks to 
make these options more accessible to operators.
    Several respondents raised concerns on behalf of children who 
cannot consume, or have difficulty consuming, cow's milk. For example, 
a group of State Attorneys General mentioned that children of color 
have markedly higher rates of lactose intolerance, citing a 2013 study 
\59\ that found that Black children were twice as likely as non-
Hispanic white children to have allergic sensitization to milk. 
Similarly, a letter from Members of Congress noted that ``most Black, 
Indigenous, and other People of Color (BIPOC) are lactose intolerant.'' 
An advocacy group cited the National Institutes of Health website, 
which states that about 68 percent of the world's population has 
lactose malabsorption.\60\ A few individuals shared their personal 
experiences facing digestive issues as a child, which they attributed 
to drinking cow's milk with their school lunch. These respondents 
suggested improved access to fluid milk substitutes could help students 
avoid experiencing the same discomfort today. To help address these 
issues, a form letter campaign suggested that USDA clarify in the final 
rule that lactose intolerance may be considered a disability. As noted, 
a participant whose digestion is impaired due to lactose intolerance 
may be a person with a disability that requires a menu substitution for 
fluid milk, and the statute and regulation require schools, 
institutions, and facilities to provide meal modifications for 
participants with a disability that restricts their diet. As emphasized 
by these and numerous other comments, USDA appreciates the importance 
of clarifying the requirements for meal modifications for disability 
reasons and fluid milk substitutes for non-disability reasons. USDA is 
committed to providing guidance to help ensure participants who require 
a substitution for cow's milk due to a disability receive a meal 
modification.
---------------------------------------------------------------------------

    \59\ The public comment cited the following study: Wegienka et 
al., Racial Differences in Allergic Sensitization: Recent Findings 
and Future Directions, Current Allergy and Asthma Reports, June 
2013, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4888051.
    \60\ The public comment cited the following web page: National 
Institutes of Health. How common is lactose malabsorption? Available 
at: https://www.niddk.nih.gov/health-information/digestive-diseases/
lactose-intolerance/definition-
facts#:~:text=While%20most%20infants%20can%20digest,world%27s%20popul
ation%20has%20lactose%20malabsorption.
---------------------------------------------------------------------------

Final Rule

    This final rule reorganizes the NSLP regulatory text related to 
fluid milk substitutes for non-disability reasons. This rule moves the 
regulatory text explaining the non-disability fluid milk substitute 
requirements from 7 CFR 210.10(m), which discusses exceptions and 
variations allowed in reimbursable meals, to 7 CFR 210.10(d), which 
discusses the fluid milk requirements. As noted in the proposed rule, 
USDA does not have the authority to change the statutory requirements 
for non-disability fluid milk substitutes,\61\ such as the statutory 
requirement that fluid milk substitutes meet specific nutrition 
requirements and that fluid milk substitutes must be requested in 
writing. Therefore, this final rule does not make any substantive 
changes to the non-disability fluid milk substitute request process 
outlined in regulation. However, USDA greatly appreciates input that 
respondents provided on the request process, including their advice on 
best practices to improve the process for program operators, families, 
and participants. USDA will consider including this input in future 
best practice resources.
---------------------------------------------------------------------------

    \61\ As detailed in the Current Requirements section, the 
following requirements related to fluid milk substitutes are 
statutory, meaning that USDA does not have discretion to change 
them: that the fluid milk substitute is nutritionally equivalent to 
fluid milk and meets nutritional standards established by the 
Secretary, which must include fortification of calcium, protein, 
vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C. 
1758(a)(2)(B)(i)); that the substitution is requested in writing by 
a medical authority or the child's parent or legal guardian (42 
U.S.C. 1758(a)(2)(B)(ii)); that the school notify the State agency 
if it is providing fluid milk substitutes for non-disability reasons 
(42 U.S.C. 1758(a)(2)(B)(ii)); and that the school cover any 
expenses related to providing fluid milk substitutes in excess of 
program reimbursements (42 U.S.C. 1758(a)(2)(B)(iii)). This 
requirement also applies to institutions or facilities in the CACFP 
(42 U.S.C. 1766(g)(4)(D)).
---------------------------------------------------------------------------

    USDA also encourages State agencies, schools, institutions, 
facilities, and other stakeholders to consider this input in their 
State and local processes. For example, community organizations could 
partner with institutions and facilities to provide families with 
information about lactose intolerance. USDA reminds schools, 
institutions, and facilities that lactose-free and reduced-lactose milk 
meet the meal pattern requirements for fluid milk (7 CFR 
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). Schools, 
institutions, and facilities may choose to provide lactose-free and 
reduced-lactose milk to participants without needing to obtain a 
written request from a parent or guardian.
    Regarding fluid milk substitutes that require a written request 
from a parent or guardian, school food authorities could provide a 
simple form that parents and guardians could use to request a 
substitute when sending student registration materials. For its part, 
USDA remains committed to providing guidance to clarify the differences 
between meal modifications for disability reasons and fluid milk 
substitutes for non-disability reasons and will consider ways to 
improve guidance related to the fluid milk substitutes process. Please 
see Section 14: Meal Modifications for a more detailed overview of meal 
modifications

[[Page 31988]]

for disability reasons, including updates made by this rulemaking.
    USDA appreciates requests for clarification about whether fluid 
milk substitutes offered in the NSLP and SBP are impacted by the added 
sugars provision of this rule. USDA did not propose to apply the 
product-based added sugars limit for flavored milk to fluid milk 
substitutes; that proposal was specific to cow's milk. Therefore, fluid 
milk substitutes are not required to meet the product-based added 
sugars limit for flavored cow's milk. However, effective SY 2027-2028, 
all meals offered during a school week--including meals containing 
fluid milk substitutes--will be required to, on average, meet the 
weekly added sugars limit (i.e., no more than 10 percent of calories 
from added sugars).
    Accordingly, this final rule amends 7 CFR 210.10(d) and (m) to 
reorganize the regulatory text related to fluid milk substitutes for 
non-disability reasons in the school meal programs. Schools are not 
required to change menus or operations as a result of this technical 
change.

Section 3C: Fluid Milk Substitutes: Nutrient Requirements

Current Requirements and Proposed Rule

    As detailed above, the statute and regulations specify nutrition 
requirements for fluid milk substitutes (42 U.S.C. 1758(a)(2)(B)(i), 42 
U.S.C. 1766(g)(4)(B), 7 CFR 210.10(d)(3), and 226.20(g)(4)(B)). 
Currently, the vitamin A and vitamin D requirements are specified in 
International Units, or IUs. However, in 2016, the FDA published a 
final rule that changed the labeling requirements for vitamins A and D 
to micrograms (mcg) rather than IUs.\62\
---------------------------------------------------------------------------

    \62\ Food and Drug Administration. Food Labeling: Revision of 
the Nutrition and Supplement Facts Labels (81 FR 33742, May 27, 
2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels.
---------------------------------------------------------------------------

    To align with the labeling requirements in the FDA's rule, USDA 
proposed to update the regulatory nutrition requirements for fluid milk 
substitutes in the 2020 proposed rule. This proposal applied to NSLP, 
SMP, and CACFP regulations for fluid milk substitutes.

Public Comments

    USDA received 46 of the comments on this provision of the 2020 
proposed rule, including 22 unique comments; all supported this change. 
Several proponents suggested that this change could reduce burden and 
make it easier for child nutrition program operators to identify fluid 
milk substitutes. A State agency offered support for aligning 
regulations with current packaging information, agreeing that this 
could reduce burden. Another State agency noted that the current 
inconsistency creates additional work and strongly supported the 
proposed change.

Final Rule

    As a conforming amendment, this final rule changes the units for 
vitamin A and vitamin D requirements for fluid milk substitutes. 
Instead of 500 IUs, the unit for the vitamin A requirement is now 150 
mcg retinol activity equivalents (RAE) per 8 fluid ounces. Instead of 
100 IUs, the unit for the vitamin D requirement is now 2.5 mcg per 8 
fluid ounces. These requirements, along with the other nutrition 
requirements for fluid milk substitutes, are shown in the table below.
[GRAPHIC] [TIFF OMITTED] TR25AP24.076

    The amount of vitamin A and vitamin D required in fluid milk 
substitutes does not change; only the unit of measurement has changed 
to conform to FDA labeling requirements.
    Accordingly, this final rule amends 7 CFR 210.10(d)(2)(ii), 
215.7a(b)(2), and 226.20(g)(3)(ii). Child nutrition program operators 
are not required to change menus or operations as a result of this 
technical change.

Section 4: Whole Grains

Current Requirement

    Current regulations at 7 CFR 210.10(c)(2)(iv) and 220.8(c)(2)(iv) 
require that at least 80 percent of the weekly grains offered in the 
school lunch and breakfast programs must be whole grain-rich. The 
remaining grain items offered must be enriched. To meet USDA's whole 
grain-rich criteria, a product must contain 50 to 100 percent whole 
grains; any grain ingredients that are not whole grain must be 
enriched, bran, or germ. The current whole grain-rich requirement took 
effect on July 1, 2022.

Proposed Rule

    The proposed rule included two options for offering whole grains in 
the school lunch and breakfast programs and requested public input on 
both. The rule:
     Proposed to maintain the current whole grains requirement 
that at least 80 percent of the weekly grains offered are whole grain-
rich, based on ounce equivalents.
     Requested public input on an alternative whole grains 
option, which

[[Page 31989]]

would require that all grains offered must be whole grain-rich, except 
that one day each school week, schools may offer enriched grains.
    USDA requested public input on both approaches as well as the 
following questions:
     Which option would be simplest for menu planners to 
implement, and why?
     Which option would be simplest to monitor, and why?
    In addition, USDA proposed to codify the definition of ``whole 
grain-rich'' for clarity. The proposed regulatory definition reads as 
follows: Whole grain-rich is the term designated by FNS to indicate 
that the grain content of a product is between 50 and 100 percent whole 
grain with any remaining grains being enriched. This proposed 
definition would not change the meaning of whole grain-rich, which has 
previously been communicated in USDA guidance. USDA proposed codifying 
the definition in NSLP, SBP, and CACFP regulations.
    Finally, USDA proposed to update the definition of ``entr[eacute]e 
item'' in the competitive food service and standards regulations (7 CFR 
210.11(a)(3)).\63\ These proposed changes sought to update the whole 
grain-rich requirements for entr[eacute]e items sold as Smart Snacks in 
School for consistency with school meal requirements.
---------------------------------------------------------------------------

    \63\ For more information on Smart Snacks in Schools, see: U.S. 
Department of Agriculture, Tools for Schools--Focusing on Smart 
Snacks. Available at: https://www.fns.usda.gov/cn/tools-schools-focusing-smart-snacks.
---------------------------------------------------------------------------

Public Comments

    USDA received over 80,000 comments on the whole grains provision of 
the proposed rule, a majority of which were coded as ``mixed'' or 
``other'' comments. Overall, about 3,800 comments supported whole 
grains, including 47 unique comments, while 49 comments opposed whole 
grains, including 44 unique comments. State agencies, school nutrition 
professionals, advocacy groups, professional organizations, industry 
respondents, dietitians, school nutrition professionals, and 
individuals provided comments on the proposals. At a high level, 
respondents provided the following feedback on whole grains:
     Whole grains are an important source of fiber and other 
nutrients.
     Whole grain-rich varieties of certain foods are less 
palatable to students, and some whole grain-rich products are less 
widely available than enriched products.
     USDA should establish a whole grain-rich requirement that 
allows flexibility for schools to occasionally offer enriched grains.
    More detailed respondent feedback, including respondent feedback on 
the proposal to maintain the current requirement, as well as the 
alternative days-per-week model, is included below.
Importance of Whole Grains
    Many respondents highlighted the importance of whole grains to 
children's diets. An advocacy group supported whole grain consumption 
for children's health, reasoning that whole grain foods are wholesome, 
nutrient-dense, and high quality. An industry respondent mentioned that 
whole grain-rich requirements in school meals allow students to benefit 
from whole grain foods, which provide important nutrients. An 
individual agreed, adding that whole grains are a good source of 
dietary fiber. Similarly, another respondent asserted that whole grain 
consumption should be encouraged because of the ``well documented'' 
positive health effects.
Proposed Approach: Maintain 80 Percent Whole Grain-Rich Requirement, 
Based on Ounce Equivalents
    About 4,800 respondents supported maintaining the current whole 
grain-rich requirement, including 291 unique comments. Several 
respondents, including a State agency and a few dietitians, stated that 
maintaining the current, 80 percent requirement would provide a 
balanced approach throughout the week and allow menu planners and 
students continued flexibility. An array of respondents supported 
maintaining the current requirement because of the nutritional benefits 
of whole grains and fiber consumption. Many respondents, including 
school nutrition professionals, agreed that the current requirement 
helps to increase students' whole grain consumption while allowing 
flexibility to offer some enriched grains, such as pasta. A State 
agency, professional organizations, school districts, and form letter 
campaigns noted that maintaining the current requirement would 
encourage whole grain consumption while allowing schools the 
opportunity to serve culturally relevant enriched grain items.
    One respondent appreciated the current 80 percent whole grain-rich 
requirement and mentioned that their school menu usually offers about 
90 percent whole grain-rich grains. This respondent stated that the 80 
percent requirement provides ``wiggle room'' if a product they normally 
buy as whole grain-rich is not available and they have to buy the 
enriched option. A school nutrition professional explained that while 
it took several years to adjust to whole grain-rich products, students 
at their school now mostly accept them. Another school district shared 
that its schools implement a 100 percent whole grain-rich requirement, 
but still supported the 80 percent requirement because it allows 
flexibility for schools to occasionally offer enriched grains.
    A State agency supported maintaining the current requirement 
because schools have successfully implemented, and are comfortable 
with, the requirement. Similarly, another State agency noted that 
schools can rely on existing menu planning software for implementation 
and monitoring. A national organization, representing tens of thousands 
of school nutrition professionals supported the current requirement, 
emphasizing that this approach would be the ``simplest'' for menu 
planners to implement and State agencies to monitor. One State agency 
and two professional organizations suggested that maintaining the 
current requirement would not require staff retraining or menu changes, 
and would prevent confusion in menu planning, for example, during 
shortened school weeks.
    Twenty-one respondents, all unique comments, opposed the current 
whole grain-rich requirement or raised concerns about implementation. 
For example, a State agency expressed concern that the 80 percent 
threshold may contribute to administrative burden for both menu 
planning and Administrative Reviews. This State agency noted that 
calculating 80 percent whole grain-rich offerings across weekly menus 
could be complex, time-consuming, and error prone. Another respondent 
mentioned that the current requirement is easier to monitor with 
nutrition software but acknowledged that the days-per-week model would 
be easier for schools that do not have software.
Alternative Approach: Days-Per-Week Model
    About 9,100 respondents supported the alternative days-per-week 
model, including 47 unique comments. A State agency reasoned that the 
alternative option would simplify menu planning and reduce non-
compliance and monitoring burden. Other respondents, including a 
professional association, a few school nutrition professionals, and a 
dietitian, agreed, and gave examples of how the alternative approach 
could be easier to implement. For example, respondents suggested that 
the days-per-week requirement would be easier to understand, would 
eliminate the need to calculate percentages, and would

[[Page 31990]]

simplify reviews for State agencies. A school nutrition professional 
stated that they are implementing the current whole grain-rich 
requirement using a days-per-week model and asserted that they find 
this approach simple to plan and monitor.
    Other proponents added that the alternative whole grain-rich 
approach is nutritionally sound. For example, a form letter campaign 
claimed that the days-per-week model supports a strong whole grain 
standard. An industry respondent mentioned that allowing enriched 
grains one day per week would ensure that students are exposed to whole 
grains in most of their school meals.
    Fifty-six respondents, including 37 unique comments, opposed the 
alternative days-per-week model or raised concerns about 
implementation. A dietitian expressed concern that the alternative 
model would limit menu planning flexibility. A State agency shared 
concerns that schools could potentially offer a larger amount of 
enriched grains one day each school week, which could reduce the 
overall percentage of whole grain-rich items offered during the week. A 
few State agencies requested USDA provide implementation guidance for 
the days-per-week model, particularly for schools with alternative 
schedules (such as four- or seven-day school weeks) and for school 
weeks that are shortened due to holidays, vacations, unexpected 
closures, and emergencies. Some respondents cautioned that during 
shortened school weeks, an even larger amount of overall grain 
offerings could be enriched.
Other Approaches Suggested by Comments
    Several respondents provided mixed responses on the two approaches 
or suggested their own alternatives. Many respondents, including 
professional organizations, advocacy groups, and a school district 
encouraged USDA to allow school districts to choose which of the whole 
grain-rich approaches they would like to implement, reasoning that 
doing so would provide greater flexibility in program operations. A few 
professional organizations added that some school districts may find it 
easier to implement one option over the other, depending on their 
unique supply chain, staffing, and menu planning considerations. Some 
highlighted that providing a choice between both options would be 
considerate of the operational differences between school districts of 
varying sizes as well as differences between rural and urban school 
districts.
    An advocacy group expressed concern that while both approaches 
would encourage whole grain consumption, they do not fully align with 
the Dietary Guidelines recommendation that at least half of grains are 
whole grains.\64\ Several advocacy groups urged USDA to require 100 
percent of grain products offered in school meals to be whole-grain 
rich. A State agency emphasized that they have maintained a 100 percent 
whole grain-rich requirement, suggesting that their schools experience 
minimal issues complying with their statewide requirement and are 
successful in procuring products to meet that requirement. Another 
individual recommended USDA require all grains to be whole grains 
(rather than having a whole grain-rich requirement) and expressed 
concern that whole grain-rich items are only required to contain at 
least 50 percent whole grains. For clarity, USDA proposed codifying the 
definition of whole grain-rich to explain that products containing 50 
to 100 percent whole grain, such as whole grain oatmeal, are whole 
grain-rich.
---------------------------------------------------------------------------

    \64\ See page 18. 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/.
---------------------------------------------------------------------------

    An advocacy group supported strengthening the whole grain-rich 
requirement reasoning that it could improve schools' environmental 
sustainability. Instead of permanently maintaining the current 
requirement, this respondent recommended that USDA transition to 
requiring all grains offered to be whole grain-rich by SY 2027-2028. 
Or, if USDA opted to finalize the days-per-week model, this advocacy 
group recommended that USDA add a requirement that schools ``balance'' 
the enriched grain day with a 100 percent whole grains day. A form 
letter suggested that USDA adopt a 100 percent whole grain-rich 
requirement or increase the whole grain-rich threshold to 90 percent 
and adopt an additional requirement for fiber. An industry respondent 
supported the 80 percent threshold for NSLP, but suggested USDA require 
that 100 percent of grains offered in the SBP be whole grain-rich. 
Additionally, this respondent suggested that all breakfast cereal 
offered in child nutrition programs should be whole grain-rich, noting 
that there are a wide variety of whole grain-rich breakfast cereals 
available.
    Some respondents provided suggestions or questions for USDA to 
consider. A parent suggested adjusting the proposed whole grain-rich 
definition by emphasizing more whole (100 percent) grains. One 
respondent asked if schools can receive ``credit'' if they offer 100 
percent whole grains (which exceed the 50 percent threshold to qualify 
as whole grain-rich) in order to offer more enriched grains. A school 
district urged USDA to consider an approach that would require schools 
to offer more whole grains, such as brown rice and bread from whole 
wheat flour, as opposed to ``processed and manufactured products.'' A 
form letter suggested USDA consider developing a requirement for fiber, 
noting that grains are a top source of fiber in school meals. 
Similarly, one advocacy group suggested a carbohydrate-to-fiber ratio 
standard to help schools identify more healthful grain products.
    Conversely, other respondents suggested that USDA decrease the 
current 80 percent whole grain-rich threshold. A school nutrition 
director opposed both whole grain proposals asserting that there is no 
significant difference between the two options. This respondent 
suggested USDA instead lower the current whole grain-rich threshold 
from 80 to 50 percent. A State agency advocated for a 50 to 75 percent 
whole grain-rich threshold, suggesting that the current 80 percent 
threshold is challenging to meet for grades K-5 based on the minimum 
grain amount required for the week. A few other respondents, including 
a State agency, professional association, school district, and 
individual, argued that the 80 percent threshold limits menu options 
and claimed that implementing a 50 percent whole grain-rich requirement 
would yield higher student participation and more menu planning 
flexibility. A dietitian agreed, stating that a 50 percent whole grain-
rich requirement would provide an ``ideal balance'' between providing 
whole grains and enriched grains in school meals.
    Some respondents who supported a lower whole grain-rich threshold 
cited specific challenges with offering whole grain-rich foods in 
school meals, including ongoing supply chain issues and concerns about 
the taste of certain whole grain-rich products. One respondent 
mentioned that schools continue to experience supply chain issues and 
production disruptions on a weekly basis. In recent years, this 
respondent stated that schools have experienced limited availability of 
whole grain-rich items and vendors have substituted enriched grain 
products. When commenting on the whole grains proposal, a food industry 
respondent explained that product development, reformulation, and 
recipe adjustments are time-consuming activities. This respondent 
stated that

[[Page 31991]]

rapid reformulation could increase prices and interfere with consumer 
testing. Dietitians from a State agency noted that identifying whole 
grain-rich items is challenging for small school districts that 
purchase foods from consumer markets and small distributors, which do 
not have crediting information readily available.
    Relatedly, a few respondents shared examples of whole grain-rich 
products that they asserted are not palatable or do not work well in 
school cafeteria operations, such as egg noodles, pasta, tortillas, 
grits, and biscuits. An individual claimed that students do not like 
certain foods manufactured with whole grain ingredients, and a school 
nutrition professional asserted that students refuse to consume whole 
grain-rich biscuits and snack crackers. A school district claimed that 
offering enriched grains is necessary for student participation in 
school meals. Another respondent expressed that it is critical for USDA 
to allow schools to occasionally offer enriched grains, adding that 
some schools encounter strong regional and cultural preferences for 
specific items, such as flour tortillas and white rice.
Comments on Other Whole Grain-Rich Proposals
    Respondents also provided feedback on the proposal to codify the 
definition of ``whole grain-rich'' in NSLP, SBP, and CACFP regulations 
and the proposal to update the definition of ``entr[eacute]e item'' in 
the competitive food service and standards regulations. One respondent 
stated that the proposed regulatory definition for the term ``whole 
grain-rich'' would allow school nutrition professionals to make more 
informed decisions when implementing the whole grain-rich requirement. 
An advocacy group suggested using a minimum of 51 percent in the 
definition to emphasize that a product should have more whole grains 
than enriched grains to qualify as whole grain-rich. A professional 
organization shared concerns that adding the term ``whole grain-rich'' 
in regulation will require administrative costs for printing materials 
and training CACFP operators and suggested one year to phase-in 
implementation. A State agency inquired about what impact, if any, this 
definition would have on how CACFP program operators identify whole 
grain-rich items.
    Regarding the proposal to update the definition of ``entr[eacute]e 
item,'' a few advocacy groups opposed the change and encouraged USDA to 
maintain the whole grain-rich requirement for Smart Snacks in School 
entr[eacute]e items to ensure students purchasing food [agrave] la 
carte receive whole grains. Another advocacy group agreed, stating that 
while they understood the intent of the change, they were concerned 
about the impact of schools selling enriched grain entrees [agrave] la 
carte. Other respondents, including a State agency and advocacy groups, 
supported the proposed change. One advocacy group noted that 
maintaining the current definition would require entr[eacute]es sold 
[agrave] la carte to be whole grain-rich, which would prevent schools 
from selling certain enriched grain NSLP and SBP entr[eacute]es 
[agrave] la carte. This respondent felt the proposed change would 
simplify the rules, support consistency within the school meal 
programs, and improve compliance. Another advocacy group agreed, 
stating this change would be beneficial to the school meal programs.

Final Rule

Maintain 80 Percent Whole Grain-Rich Requirement, Based on Ounce 
Equivalents
    This final rule maintains the current whole grains requirement that 
at least 80 percent of the weekly grains offered in the school lunch 
and breakfast programs are whole grain-rich, based on ounce 
equivalents. This final rule is based on stakeholder feedback, which 
emphasized the importance of offering meals that meet local and 
cultural preferences by ensuring nutrition requirements occasionally 
allow schools to offer enriched grains. For example, this final rule 
allows schools the flexibility to occasionally serve white rice or non-
whole grain-rich tortillas, while still promoting whole grain-rich 
foods throughout the school week. The requirement that at least 80 
percent of the weekly grains offered in reimbursable school lunch and 
breakfast programs are whole grain-rich is a minimum standard, not a 
maximum. Schools may choose to increase whole grain-rich offerings 
beyond this minimum standard. It reflects a practical and feasible way 
to work toward the Dietary Guidelines' recommendation to increase whole 
grain consumption. USDA encourages schools to incorporate whole grains 
in their menus as often as possible to support children's health.
    This final rule also supports USDA's commitment to advancing 
nutrition security by improving the nutritional quality of school 
meals. Research has demonstrated the importance of school meals in 
improving children's overall diets, including their whole grain 
consumption. For example, USDA research published in April 2023 found 
that after 2013, following implementation of the initial whole grain-
rich requirements for school meals, school food became the most whole 
grain-dense food source in children's diets.\65\ USDA expects the 
Healthy Eating Index (HEI) component score for whole grains will remain 
high under this final standard. For reference, in SY 2014-2015, USDA 
found the HEI component score for whole grains was 95 percent of the 
maximum score at school breakfast and at lunch.\66\ In SY 2014-2015, 
all grains offered in the NSLP and SBP were required to be whole grain-
rich; however, school food authorities that demonstrated a hardship in 
meeting this requirement had the option to request an exemption that 
allowed them to meet a reduced whole grain-rich requirement: at least 
50 percent of all grains offered had to be whole grain-rich.
---------------------------------------------------------------------------

    \65\ Lin, Biing-Hwan, Travis A. Smith, and Joanne F. Guthrie. 
April 2023. Trends in U.S. WholeGrain Intakes 1994-2018: The Roles 
of Age, Food Source, and School Food, ERR-311, U.S. Department of 
Agriculture, Economic Research Service. Available at: https://www.ers.usda.gov/publications/pub-details/?pubid=106291.
    \66\ See Figure ES.14. And Figure ES.17. 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://www.fns.usda.gov/school-nutrition-and-meal-cost-study. (OMB Control Number 0584-0596, expiration date 07/
31/2017.)
---------------------------------------------------------------------------

    USDA acknowledges that some respondents asserted that the 80 
percent weekly whole grain-rich requirement does not align with the 
Dietary Guidelines recommendations. It is important to acknowledge that 
schools may offer whole grain-rich foods more often than required 
throughout the school week and may choose to offer individual items 
that exceed the minimum threshold to qualify as whole grain-rich. For 
example, 100 percent whole grain bread and brown rice are examples of 
foods that exceed the 50 percent minimum criteria to be whole grain-
rich. When schools exceed the weekly 80 percent requirement or offer 
100 percent whole grain food items, students have greater access to the 
nutritional benefits of whole grains, further aligning school meals 
with the goals of the Dietary Guidelines, while still maintaining some 
flexibility for schools to offer enriched grains. USDA appreciates 
respondent feedback and continues to encourage schools to offer more 
whole grain-rich foods, including 100 percent whole grain products. 
Maintaining the option for schools to occasionally offer enriched 
grains responds to stakeholders who advocated

[[Page 31992]]

for USDA to allow some menu planning flexibility to provide a variety 
of grain offerings, including student, regional, and cultural 
favorites.
    USDA appreciates comments received on the alternative days-per-week 
model and acknowledges respondents' concerns that this approach could 
be difficult to implement and monitor, particularly during school weeks 
that are shortened due to emergency school closures, holidays, or 
scheduled breaks. USDA also acknowledges that the days-per-week model 
would require special consideration for schools with four-day 
schedules, or other alternative schedules. Due to this variability, 
under a days-per-week model, there is potential that the overall amount 
of whole grain-rich items offered could decrease, which could reduce 
children's overall whole grain consumption. Therefore, USDA has 
determined that maintaining the current 80 percent whole grain-rich 
requirement is a more practical approach, as it supports children's 
consumption of whole grains and has already been operationally 
successful in schools nationwide.
    Some respondents mentioned that they implement the current 80 
percent whole grain-rich requirement using a days-per-week model. 
Schools may choose to use this approach under the final rule, provided 
they continue to offer at least 80 percent of all grains as whole 
grain-rich, calculated by ounce equivalents. USDA encourages schools to 
implement a strategy that best meets their operational needs and that 
meets the required 80 percent whole grain-rich threshold.
    USDA recognizes that some schools are concerned about product 
availability due to supply chain challenges. USDA appreciates the 
importance of maintaining strong, long-term nutrition standards and 
incentivizing the food industry to develop products that support 
schools' efforts to provide children with nutritious school meals. In 
public comments, industry respondents and schools shared progress made 
toward expanding whole grain-rich offerings that children enjoy. For 
example, industry respondents mentioned a wide variety of whole grain-
rich products that are currently available in the K-12 market. One 
industry respondent stated that they offer more than 25 entr[eacute]e 
items containing whole grain-rich pasta or breading and suggested that 
these items are accepted by students. Another industry respondent 
stated that manufacturers ``have made great strides'' in developing 
whole grain-rich breakfast options. In addition, USDA Foods in Schools 
offers whole grain and whole grain-rich products available to schools 
in the yearly USDA Foods Available List.\67\ For example, whole grain-
rich USDA Foods available to schools for SY 2023-2024 included 100 
percent white whole wheat flour, rolled oats, pancakes, brown rice, 
tortillas, and breaded fish sticks.
---------------------------------------------------------------------------

    \67\ U.S. Department of Agriculture, USDA Foods Available List 
January 9, 2023. Available at: https://www.fns.usda.gov/usda-fis/usda-foods-available.
---------------------------------------------------------------------------

    USDA technical assistance resources also support efforts to offer 
whole grain-rich foods in the child nutrition programs. USDA developed 
the Whole Grain Resource for the National School Lunch and Breakfast 
Programs \68\ as well as three separate tip sheets on grains in the 
Crediting in the Child Nutrition Programs \69\ series that assist 
school nutrition professionals with selecting appropriate whole grain-
rich products for their programs. For CACFP program operators, USDA 
developed the Crediting Handbook for the Child and Adult Care Food 
Program \70\ that includes technical assistance for identifying and 
serving whole grain-rich foods served in child and adult care centers. 
Additionally, USDA develops and shares recipes with whole grain-rich 
ingredients for child nutrition programs that are published on the Team 
Nutrition Recipes \71\ web page.
---------------------------------------------------------------------------

    \68\ U.S. Department of Agriculture, Whole Grain Resource for 
the National School Lunch and Breakfast Programs December 13, 2022. 
Available at: https://www.fns.usda.gov/tn/whole-grain-resource-national-school-lunch-and-breakfast-programs.
    \69\ U.S. Department of Agriculture, Crediting in the Child 
Nutrition Programs May 23, 2023. Available at: https://www.fns.usda.gov/tn/crediting-grains.
    \70\ U.S. Department of Agriculture, Crediting Handbook for the 
Child and Adult Care Food Program May 8, 2023. Available at https://www.fns.usda.gov/tn/crediting-handbook-child-and-adult-care-food-program.
    \71\ U.S. Department of Agriculture, Team Nutrition Recipes 
March 10, 2023. Available at: https://www.fns.usda.gov/tn/team-nutrition-recipes.
---------------------------------------------------------------------------

Definition of Whole Grain-Rich
    This final rule codifies the definition of ``whole grain-rich'' in 
NSLP, SBP, and CACFP regulations. The term ``whole grain-rich'' was 
originally coined by the National Academy of Medicine (formerly known 
as the Institute of Medicine) in their 2010 report, School Meals: 
Building Blocks for Healthy Children,\72\ and was previously 
communicated in USDA guidance. This final rule defines the term in 
regulation for clarity. The intent of this change is to codify the 
existing definition in NSLP, SBP, and CACFP regulations. The definition 
in regulation reads as follows: Whole grain-rich is the term designated 
by FNS to indicate that the grain content of a product is between 50 
and 100 percent whole grain with any remaining grains being enriched. 
This definition does not change the meaning of whole grain-rich, and 
program operators can continue to identify whole grain-rich products as 
described in current guidance. For example, CACFP program operators may 
continue to use training resources, such as Identifying Whole Grain-
Rich Foods for CACFP,\73\ to credit whole grain-rich foods.
---------------------------------------------------------------------------

    \72\ See: 7 Recommendations for Nutrient Targets and Meal 
Requirements for School Meals.'' Institute of Medicine. 2010. School 
Meals: Building Blocks for Healthy Children. Washington, DC: The 
National Academies Press. https://doi.org/10.17226/12751. National 
Academies of Sciences, Engineering, and Medicine. 2010. School 
Meals: Building Blocks for Healthy Children. Washington, DC: The 
National Academies Press. https://doi.org/10.17226/12751.
    \73\ U.S. Department of Agriculture, Identifying Whole Grain-
Rich Foods For CACFP June 7, 2023. Available at: https://www.fns.usda.gov/tn/identifying-whole-grain-rich-foods-cacfp.
---------------------------------------------------------------------------

    USDA appreciates one respondent's suggestion to adjust the 
definition to require at least 51 percent of a product to be whole 
grain in order to qualify as whole grain-rich. However, USDA will 
finalize the definition as proposed. The definition codified in this 
final rule was originally used in the National Academy of Medicine's 
2010 report and has been in place through policy guidance for more than 
a decade. Program operators and the food industry have worked 
diligently to comply with this longstanding definition. For example, 
the food industry has worked to develop products that comply with the 
existing definition. While USDA acknowledges that while the 
respondent's suggested change is minor, finalizing the proposed 
definition will avoid any unintended consequences that could impact 
products that comply with the longstanding definition of whole grain-
rich. Further, the definition of whole grain-rich finalized in this 
rulemaking derives from the Dietary Guidelines, which recommends at 
least half, or 50 percent, of total grains be whole grains.
Entr[eacute]e Items Sold [agrave] la Carte
    As proposed, this final rule also updates the definition of 
``entr[eacute]e item'' in the competitive food standards regulations at 
7 CFR 210.11(a) to clarify that both whole grain-rich and enriched 
grain entr[eacute]es offered as part of a reimbursable school meal may 
qualify as an ``entr[eacute]e item'' when sold [agrave] la carte as a 
``Smart Snack.'' USDA acknowledges concerns raised in public comments 
about how this change could result in schools selling enriched grains 
to students. However, USDA agrees with public comments that noted that 
this

[[Page 31993]]

change would benefit school programs by simplifying and improving 
consistency in regulations, acknowledging that both whole grain-rich 
and enriched grain entr[eacute]es may be offered at school lunch and 
breakfast under the current requirements. Additionally, USDA clarifies 
that as proposed, this change is limited to school lunch and breakfast 
program entr[eacute]es sold [agrave] la carte; this change does not 
impact the general standards for competitive foods for all other items 
sold [agrave] la carte. The current whole grain-rich requirements for 
all other items remain in effect under this final rule; this change is 
limited to school lunch and breakfast program entr[eacute]es sold 
[agrave] la carte on the day of, and the school day after, they are 
included on the school lunch or breakfast menu.
    For context, 7 CFR 210.11(c)(3) states that any entr[eacute]e item 
offered as part of a reimbursable school meal is exempt from all 
competitive food standards if it is sold [agrave] la carte on the day 
of, or the school day after, the entr[eacute]e is offered on a school 
lunch or breakfast menu. This exemption helps school nutrition 
professionals prevent food waste and manage their programs. It also 
helps to reduce potential confusion about whether an entr[eacute]e 
served to some students as part of a school meal can be purchased 
[agrave] la carte by other students. The current definition of 
``entr[eacute]e item'' in the competitive food service and standards 
regulations specifies that grain entr[eacute]es must be whole grain-
rich; however, under the current requirements and this final rule, 
schools may offer up to 20 percent of their total grains as enriched 
grains at school lunch and breakfast each week. Therefore, under this 
final rule, USDA is finalizing the proposed definition of 
``entr[eacute]e item'' so it only references ``grain'' and therefore 
includes entr[eacute]es offered with both whole grain-rich and enriched 
grains. This change updates regulations at 7 CFR 210.11(c)(3) to 
clarify that whole grain-rich and enriched grain entr[eacute]es offered 
in a reimbursable lunch or breakfast may qualify for the competitive 
foods entr[eacute]e exemption on the day of, or the school day after, 
they are offered on the school lunch or breakfast menu. For clarity, 
this change only applies to grain items sold as entr[eacute]es in 
reimbursable school lunches or breakfasts and which qualify for an 
exemption to the competitive food standards. All other grain items sold 
[agrave] la carte must comply with the general standards for 
competitive foods at 7 CFR 210.11, which require that grain items sold 
[agrave] la carte must meet USDA's whole grain-rich criteria.
    Accordingly, this final rule amends 7 CFR 210.2, 210.10(c)(2)(iii), 
210.11(a)(3), 220.2, 220.8(c)(2)(iii), and 226.2 to codify the 
definition of the term ``whole grain-rich,'' to maintain the current 80 
percent whole grain-rich requirement for the school lunch and breakfast 
programs, and to update the definition of ``entr[eacute]e item'' to 
account for the whole grain-rich and enriched grain requirements in 
school meals. Because this rule finalizes the current whole grain-rich 
requirements and terminology, as proposed, child nutrition program 
operators will not need to make changes to comply with this provision 
of this rule.

Section 5: Sodium

Current Requirement

    Current regulations at 7 CFR 210.10(f)(3) and 220.8(f) required 
schools to meet Sodium Target 1 for school lunch and breakfast in SY 
2022-2023. For school lunch only, schools were required to meet Sodium 
Target 1A in SY 2023-2024. These limits are shown in the tables below:
[GRAPHIC] [TIFF OMITTED] TR25AP24.077

[GRAPHIC] [TIFF OMITTED] TR25AP24.078

Proposed Rule

    USDA proposed to gradually reduce sodium in the school lunch and 
breakfast programs. For school lunch, USDA proposed three reductions, 
to be phased in as follows and as shown in the chart below:
     SY 2025-2026: Schools would implement a 10 percent 
reduction from SY 2024-2025 school lunch sodium limits.
     SY 2027-2028: Schools would implement a 10 percent 
reduction from SY 2026-2027 school lunch sodium limits.
     SY 2029-2030: Schools would implement a 10 percent 
reduction from SY 2028-2029 school lunch sodium limits.

[[Page 31994]]

[GRAPHIC] [TIFF OMITTED] TR25AP24.079

    For school breakfast, USDA proposed two reductions, to be phased in 
as follows and as shown in the chart below:
     SY 2025-2026: Schools would implement a 10 percent 
reduction from SY 2024-2025 school breakfast sodium limits.
     SY 2027-2028: Schools would implement a 10 percent 
reduction from SY 2026-2027 school breakfast sodium limits.
[GRAPHIC] [TIFF OMITTED] TR25AP24.080

Public Comments

    USDA received over 95,000 comments on the proposed sodium limits, a 
majority of which (about 90,000 comments, including about 400 unique 
comments) were categorized as ``mixed'' or ``other'' comments. Overall, 
about 4,900 comments supported sodium reduction as proposed, including 
about 180 unique comments, 565 comments opposed sodium reductions, 
including almost 500 unique comments, and over 85,000 comments, nearly 
all of which were form letters, supported sodium reduction beyond what 
was proposed. Comments were submitted by State agencies, school 
nutrition professionals, advocacy groups, industry respondents, 
professional organizations, school districts, dietitians, and 
individuals, including parents. At a high level, respondents provided 
the following feedback on sodium:
     Lower sodium school meals are important to children's 
health, and some respondents recommended more aggressive reductions, 
such as 15 percent reductions between sodium limits instead of 10 
percent reductions.
     Sodium reduction in school meals is dependent on product 
availability, and product reformulation takes time and resources.
     Students' consumption of higher sodium foods outside of 
school impacts their acceptance of lower sodium school meals.
     USDA should research the impact of sodium reduction on 
school meal menu planning, student participation, and student health 
prior to finalizing further sodium reductions.
    Of the ``mixed'' comments, several form letters with over 85,000 
combined submissions supported the sodium proposals but urged USDA to 
finalize additional reductions, beyond the proposed reductions. Two 
other ``mixed'' form letters with over 3,600 submissions recommended 
that USDA retain the current sodium limits instead of moving forward 
with the proposed limits. Other comments in this category offered 
suggestions, which are described in more detail below.
Importance of Reducing Sodium
    Several respondents discussed the importance of sodium reduction 
for promoting health across the U.S. population. Advocacy groups 
mentioned that proposed limits represent progress toward improving 
children's health and that reducing sodium helps prevent chronic 
disease. Similarly, a form letter campaign stated that sodium reduction 
would ``benefit all students and further reduce diet-related 
diseases.'' A parent agreed, emphasizing the importance of preventative 
measures to protect children's health. An individual asserted that too 
much sodium increases children's risk of elevated blood pressure and 
other chronic health conditions. An advocacy group stated that aligning 
the proposed rule with the Dietary Guidelines, including phasing in 
sodium reductions, ``sets students up for lifelong success.''
Reducing Sodium in School Meals and Proposed Sodium Limits
    As noted, approximately 4,900 respondents supported sodium 
reduction, including about 180 unique comments. A professional 
organization and an advocacy group supported the proposed sodium limits 
because they align with FDA's voluntary reduction goals for the broader 
food supply. An industry respondent appreciated the sodium proposal 
because it promotes the use of more herbs and spices in place of 
sodium, which has the ``potential to shift taste preferences.'' A few 
school districts supported the proposed limits, with one claiming that 
manufacturers add an ``unacceptable and unnecessary'' amount of sodium 
to foods to enhance flavor.
    Several respondents provided feedback on the sodium limit proposed 
for SY 2025-2026, or the other proposed limits. A few school districts 
and school nutrition professionals supported the initial 10 percent 
sodium reduction for school lunch and breakfast. A school nutrition 
director described the initial reduction as ``manageable'' for schools 
and manufacturers. An industry respondent agreed that USDA should 
finalize the initial reduction for both programs and expressed their 
commitment to implement FDA's

[[Page 31995]]

voluntary sodium reduction goals to reduce sodium in their K-12 
products. Additional respondent feedback on the proposed implementation 
dates and number of sodium reduction limits is described below.
    Over 500 comments opposed sodium reductions, the majority of which 
were unique comments. Some respondents claimed that, due to student 
taste preferences, it would be difficult to maintain student acceptance 
of meals under the proposed sodium reductions. A form letter campaign 
and other respondents asserted school meals are not to blame for 
students' excessive sodium intake, pointing instead to meals students 
consume at home and at other food service establishments. This form 
letter added that students' taste preferences would not adjust to 
school meals with less sodium without sodium reductions in the foods 
that students consume outside of school. Other respondents suggested 
that school nutrition staffing challenges and reliance on pre-packaged 
foods make sodium reduction challenging. For example, a dietitian 
suggested that lower sodium meals may be possible with more scratch 
cooking, but many districts do not have the time or resources for 
scratch cooking. Other respondents, including school districts and 
school nutrition professionals, explained that some schools do not have 
a full kitchen or adequate staffing to prepare meals with less sodium. 
A few school districts raised concerns that further sodium reductions 
would lead manufacturers to replace sodium with chemical preservatives 
or artificial flavorings.
    Approximately 90,000 comments, including about 400 unique comments, 
provided mixed or other feedback on sodium reduction. A majority of the 
mixed comments fell into two main categories: those that suggested that 
USDA maintain the existing sodium limits, or more often, those that 
suggested that the proposed limits do not go far enough. For example, 
two ``mixed'' form letters with over 3,600 submissions recommended that 
USDA retain the existing sodium limits and expressed concern about the 
proposed reductions. A few school nutrition professionals expressed 
concerns about the palatability of lower sodium foods and 
manufacturers' ability to reduce sodium in their products. A 
professional association encouraged USDA to delay sodium reductions 
until after conducting listening sessions with school nutrition 
professionals to determine feasible approaches for lowering sodium.
    However, other respondents, including several form letters with 
over 85,000 combined submissions, suggested that additional sodium 
reduction is needed, asserting that the proposed limits do not reduce 
sodium enough. A form letter campaign mentioned that the proposed 
limits represent progress but stated that the final limits in the 
proposed rule do not fully align with the Dietary Guidelines. A 
professional organization and a school district recommended providing 
development opportunities to help school nutrition professionals 
prepare lower sodium meals, offering financial support for menu 
changes, and educating students and families on the importance of 
sodium limits.
Product Availability and Industry Input
    Numerous respondents shared input on the availability and 
development of lower sodium products. An industry respondent asserted 
that the food industry continues to work to reduce sodium through 
``innovation, reformulation, and the use of sodium substitutes'' but 
that these changes take time. Another industry respondent noted that 
many manufacturers have already reformulated under the existing sodium 
limits, asserting that some manufacturers have reduced sodium in their 
products by up to 80 percent. A third industry respondent asserted that 
it takes ``on average, three years for manufacturers to innovate and 
reformulate foods and participate in the school bidding process.'' A 
State agency suggested that industry ``will not be willing or able'' to 
reduce sodium in their products.
    Other respondents raised concerns about competing priorities within 
the food industry. For example, one industry respondent explained that 
resources for reformulation are limited and manufacturers cannot 
reformulate all of their products at the same time. Another respondent 
emphasized that manufacturers continue to face supply chain and labor 
challenges and need time to plan for further sodium reductions. An 
industry respondent affirmed that product reformulations to reduce 
sodium can take several months and involve ``trade-offs'' such as 
reduced shelf-life and increased price. Another industry respondent 
added that during the reformulation process to reduce sodium content in 
products, manufacturers may need to use added sugars to maintain 
palatability, suggesting that a ``careful balance'' is needed when 
targeting these two ingredients.
    Some respondents raised concerns about sodium levels and naturally 
occurring or ``functional'' sodium in foods commonly offered in school 
meals. For example, a form letter campaign, as well as other 
respondents, mentioned that naturally occurring sodium is found in 
foods such as bread, milk, cheese, and celery. Regarding milk, a school 
nutrition professional shared that one serving of milk contains 110-125 
milligrams of sodium. A few State agencies and school nutrition 
directors asserted that naturally occurring sodium should be excluded 
from the weekly sodium limits. An industry respondent mentioned that 
``salt and sodium provide significant functionality and [food] safety'' 
in products like cheese. Another industry respondent expressed that the 
sodium limits proposed for implementation in SY 2027-2028 and beyond 
would make it hard for schools to offer plant-based alternatives that 
are currently available in the school meals market, such as vegetable 
crumbles and bean patties. This respondent stated that many plant-based 
products ``require added sodium for food quality, palatability, and 
shelf-life purposes.'' An individual suggested that condiments be 
excluded from weekly sodium limits because not all students use them.
Other Alternatives Received From Public Comments
    Respondents provided other suggestions or recommendations for USDA 
to consider. A professional organization suggested allowing sodium 
limits to be ``optional'' and that USDA encourage schools to meet 
optional limits by providing a financial incentive. Several other 
respondents, including school nutrition professionals and industry 
respondents, encouraged USDA to research the impact of sodium 
reductions on product availability, menu planning, food waste, student 
acceptance, student health, and student participation in the school 
meal programs. An industry respondent added that the study should 
carefully consider the impacts across all age groups and at schools of 
varying sizes.
Proposed Implementation Dates and Number of Reductions
    USDA requested public input on the following questions about sodium 
limits and the proposed implementation timeframe:
     Does the proposed implementation timeframe provide 
appropriate lead time for manufacturers and schools to successfully 
implement the new sodium limits?
     Do commenters agree with USDA's proposed schedule for 
incremental sodium reductions, including both the

[[Page 31996]]

number and level of sodium reductions and the timeline, or suggest an 
alternative? Why?
    About 300 respondents addressed the proposed implementation 
timeframe, including 66 unique comments. Some respondents suggested 
that the proposed implementation timeframe was appropriate. One 
respondent stated that the gradual approach to sodium reduction would 
allow time for innovation. An advocacy group agreed, asserting that a 
gradual approach is ``feasible for schools and the food industry.'' A 
State agency affirmed that the proposed implementation dates would 
allow time for student engagement, inventory management, and technical 
assistance. Another State agency agreed the proposed implementation 
dates provide adequate lead time for food manufacturers and schools; 
however, this respondent also emphasized that timely publication of the 
final rule would be key to successful implementation. An advocacy group 
asserted that the proposed sodium limits and timeline ``allow schools 
to plan, source, and test meals that are nutritious, palatable to 
students and abide by new guidelines.''
    Other respondents expressed that the timeframe would not provide 
schools sufficient time to successfully implement the proposed limits. 
A State agency suggested USDA reconsider the proposed schedule due to 
concern about student acceptance. An industry respondent suggested that 
sodium reduction needs to ``occur more gradually over the next 20 years 
or more.'' This respondent recommended there be five years between each 
sodium limit to ``allow technology to catch up to the requirements'' 
and to allow students to become accustomed to lower sodium meals. A 
school nutrition professional recommended extending the timeframe for 
sodium reduction over 10 to 15 years. A school district mentioned that 
the proposed school breakfast limits are achievable but the proposed 
school lunch limits are ``too aggressive for manufacturers to 
implement.'' An individual stated that industry would need at least 3 
to 5 years to develop food items to meet the proposed sodium limits. 
Respondents also provided feedback on the number and levels of sodium 
limits included in the proposed rule. For example, a few school 
districts and an advocacy group recommended that USDA maintain the 
current sodium limits, without any further reductions. A State agency 
supported only the initial 10 percent reduction, asserting that 
industry and the U.S. food supply should ``catch up'' before sodium 
reduction beyond the initial reduction occurs in school meals. A few 
industry respondents agreed, supporting the initial sodium reduction 
but recommending that USDA pause on implementation of subsequent limits 
until research is ``completed and understood.'' Another State agency 
suggested removing the third proposed sodium limit at lunch and adding 
more time in between each reduction. Several respondents referenced 
sodium targets from prior USDA rulemakings, including Sodium Target 2, 
which falls between the first and second proposed sodium reduction 
limits.\74\ For example, some respondents suggested that Sodium Target 
2 levels would be achievable for schools, but that sodium reductions 
beyond Sodium Target 2 would be too challenging for schools. One 
advocacy group suggested implementing larger, 15 to 20 percent 
reductions every two years, instead of 10 percent reductions, or adding 
a fourth or fifth sodium reduction to align with the recommendations 
from the Dietary Guidelines.
---------------------------------------------------------------------------

    \74\ Sodium Target 2 was established by the 2012 rule. Under the 
2012 rule, Sodium Target 2 would have been implemented in SY 2017-
2018; however, legislative and administrative action prevented 
implementation of sodium targets beyond Sodium Target 1. To view the 
Sodium Target 2 limits as established by the 2012 rule, see: U.S. 
Department of Agriculture. Nutrition Standards in the National 
School Lunch and School Breakfast Programs. (77 FR 4088, January 26, 
2012). Available at: https://www.federalregister.gov/d/2012-1010/p-138.
---------------------------------------------------------------------------

Suggestions for Best Practice Product-Based Sodium Limits
    In addition to feedback on the sodium limits and implementation 
dates, USDA requested public input on the following questions about 
developing best practices for specific products:
     USDA plans to recommend (but not require) sodium limits 
for certain products, such as condiments and sandwiches, to further 
support schools' efforts to procure lower sodium products and meet the 
weekly limits.
     For which products should USDA develop best practice 
sodium limits?
     What limits would be achievable for schools and industry, 
while still supporting lower-sodium meals for children?
    State agencies, advocacy groups, and other respondents recommended 
that USDA develop best practice sodium limits for the following 
products:

 Broths and soups
 Breaded chicken
 Condiments and sauces
 Canned vegetables and pickles
 Deli meat and sandwiches
 Pizza, pasta dishes, and tacos

    A State agency supported USDA's plans to develop best practice 
product sodium limits for certain foods and encouraged USDA to work 
with the food industry to develop the voluntary limits. This State 
agency mentioned that best practice product limits would help State 
agencies provide technical assistance and support to schools working to 
reduce sodium. Several respondents, including a form letter campaign, 
opposed best practice product sodium limits for specific foods; others 
suggested that developing best practice product limits would not be a 
good use of time and resources. Some respondents were concerned that 
best practice product sodium limits would be the ``first stop to 
product-specific limit requirements'' or appeared to be confused about 
the intent of the request for input. To clarify, USDA's request for 
input was intended to inform recommended (not required) best practice 
product sodium limits for technical assistance purposes. USDA does not 
intend to require product-based sodium limits.

Final Rule

    In response to feedback from stakeholders, this final rule provides 
schools even more time to gradually reduce sodium in school meals and 
commits to conducting a study on potential associations between sodium 
reduction and student participation. As recommended by stakeholders, 
including a professional organization representing school nutritional 
professionals in the Nation's largest school districts, this final rule 
reduces sodium in school lunch and breakfast by approximately 15 
percent and 10 percent, respectively. The sodium reduction finalized in 
this rule falls between the first and second sodium reduction included 
in the proposed rule and reflect the Sodium Target 2 levels established 
in the 2012 final rule,\75\ a level many stakeholders commented was 
familiar and achievable. This final rule codifies the following sodium 
limits in the school lunch and breakfast programs:
---------------------------------------------------------------------------

    \75\ U.S. Department of Agriculture. 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.
---------------------------------------------------------------------------

     For the next three school years, through SY 2026-2027, 
schools will maintain current sodium limits (Sodium Target 1A for lunch 
and Sodium Target 1 for breakfast).
     By SY 2027-2028, schools must implement an approximate 10 
percent reduction for breakfast and an approximate 15 percent reduction 
for

[[Page 31997]]

lunch from current sodium limits, depending on the age/grade group.
    The current sodium limit and the sodium reduction finalized in this 
rulemaking are shown in the charts below. The current sodium limits for 
school lunch and breakfast will remain in place through June 30, 2027. 
Through the end of SY 2026-2027, schools will be able to maintain 
Sodium Target 1A at lunch and Sodium Target 1 at breakfast. By July 1, 
2027, schools must implement the sodium reduction shown in the chart 
below. The sodium reduction for school lunch, which generally contains 
higher amounts of sodium than breakfast, will be slightly larger 
compared to the sodium reduction for school breakfast. This approach 
allows school nutrition professionals to focus their sodium reduction 
efforts on lunch.
[GRAPHIC] [TIFF OMITTED] TR25AP24.081

[GRAPHIC] [TIFF OMITTED] TR25AP24.082

    These sodium limits apply, on average, to lunches and breakfasts 
offered during a school week. Sodium limits do not apply per day, per 
meal, or per menu item. A weekly average allows flexibility for menu 
planners to occasionally offer higher sodium meals or menu items, 
provided they are balanced with lower sodium meals and menu items 
throughout the week.
    While schools are not required to reduce sodium in school meals 
until SY 2027-2028, USDA encourages schools to gradually reduce sodium 
at lunch and breakfast prior to the required reduction. USDA encourages 
school nutrition professionals to adjust food preparation methods, 
gradually incorporate more lower sodium foods throughout the school 
week and make menu adjustments to support eventual implementation of 
the sodium reduction codified by this rulemaking.
    As detailed in the Public Comments section, many respondents 
suggested that USDA take a more gradual approach to sodium reduction 
than proposed. For example, a professional organization representing 
over 112,000 credentialed nutrition and dietetics practitioners 
acknowledged the importance of reducing children's sodium intake but 
recommended a smaller overall reduction at lunch compared to the 
proposed rule and suggested providing additional time for 
implementation. USDA agrees with comments that noted the importance of 
gradually moving toward lower sodium meals in a way that is achievable 
for schools and the food industry and has incorporated this feedback 
into the sodium limits established by this final rule. USDA also 
considered current sodium levels in the U.S. food supply and time 
needed for product reformulation and for student palates to adjust. The 
Dietary Guidelines, 2020-2025 also recognize that ``multiple strategies 
should be implemented to reduce sodium intake'' across the U.S. 
population.\76\ For example, the Dietary Guidelines acknowledge that 
most sodium comes from salt added during commercial food processing and 
preparation, and note that ``reducing sodium consumption will require a 
joint effort by individuals, the food and beverage industry, and food 
service and retail establishments.'' \77\ As a reflection of feedback 
received from schools and industry partners, the sodium reduction for 
school lunch and breakfast established by this final rule takes a more 
gradual approach to lowering sodium compared to the proposed series of 
limits. By finalizing a single sodium reduction for both school lunch 
and breakfast, this rule gives schools and industry a clear endpoint to 
work toward in the near-term.
---------------------------------------------------------------------------

    \76\ See page 46. 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/.
    \77\ See page 46 and page 102. 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/.
---------------------------------------------------------------------------

    School nutrition professionals emphasized that sodium reductions 
need to be gradual for schools to be successful and for students to 
accept lower sodium meals and numerous respondents suggested that at 
least three years are needed for product reformulation. USDA 
incorporated this feedback into the sodium reduction implementation 
date of July 1, 2027--over three years after the publication of this 
final rule. Additionally, school

[[Page 31998]]

nutrition professionals, advocacy groups, and other respondents 
encouraged USDA to study the impact of sodium reductions on student 
participation in the school lunch and breakfast programs. Respondents 
were concerned, for example, that students would choose to bring meals 
from home instead of participating in the school lunch and breakfast 
programs if sodium is further reduced in the programs. Therefore, in 
response to requests from stakeholders, USDA will examine school meal 
sodium reduction efforts and monitor student participation data.
    As noted above, USDA received numerous comments referencing sodium 
requirements from prior rulemakings--specifically, the 2012 final rule. 
USDA considered these comments, as well as implementation of prior 
rulemakings, to inform the sodium limits in this final rule. A 
professional organization representing school nutrition professionals 
in the Nation's largest school districts suggested that Sodium Target 2 
from the 2012 rule could be achievable if food manufacturers have an 
endpoint to work toward. This respondent did not recommend going beyond 
Sodium Target 2 limits in this rulemaking. Another respondent cited 
data suggesting that in SY 2014-2015, prior to the pandemic and related 
supply chain challenges, the average school lunch was ``already well 
below'' Sodium Target 1 and the average school breakfast was already 
meeting Sodium Target 2. This is similar to findings discussed in FNS' 
Successful Approaches to Reduce Sodium in School Meals study, conducted 
prior to the pandemic in 2016 and 2017, which described ``a high rate 
of success in meeting the Target 1 sodium standards,'' with many school 
food authorities ``making significant progress toward or reaching 
[Sodium] Target 2.'' \78\ A school district commenting on the proposed 
rule maintained that they ``would be fine with the [Sodium] Target 2 
guidelines,'' adding that Sodium Target 2 was ``achievable and students 
enjoyed the food we provided prior to COVID.'' Another school district 
agreed, suggesting that its ``sodium averages are currently at or below 
[Sodium] Target 2 for both lunch and breakfast.'' However, this school 
district noted that student feedback and product availability have 
prevented decreases beyond Sodium Target 2. In response to prior 
rulemakings stakeholders have also encouraged USDA to allow more time 
for gradual sodium reduction, including recommending that USDA not go 
beyond Sodium Target 2. Based on this feedback, USDA expects that 
gradually phasing in limits that reflect the Sodium Target 2 will be 
achievable for schools. This rulemaking gives schools and industry a 
clear endpoint to work toward in the near-term, while providing 
sufficient time for all stakeholders to prepare for implementation. It 
also responds to proposed rule comments that suggested that Sodium 
Target 2 levels are achievable, but that USDA not go beyond the Sodium 
Target 2 limits in this rulemaking.
---------------------------------------------------------------------------

    \78\ 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. Available at: 
https://fns-prod.azureedge.us/sites/default/files/resource-files/Approaches-ReduceSodium-Volume1.pdf.
---------------------------------------------------------------------------

    USDA also appreciates comments that supported sodium reduction in 
school meals to benefit children's overall health. While this final 
rule does not go as far as the proposed rule in reducing sodium, the 
sodium limits finalized in this rulemaking represent significant 
progress. The proposed sodium limits, which were informed by FDA's 
voluntary sodium reduction goals, would have reduced sodium in school 
lunches by 30 percent and school breakfasts by 20 percent. As detailed 
in the proposed rule, to develop the proposed limits, USDA used the 
average short-term FDA targets for foods commonly served in school 
lunch and breakfast to calculate a baseline menu goal for weekly sodium 
limits for each meal; this calculation resulted in an initial 10 
percent reduction from the transitional sodium limits. The proposed 
rule built on this initial reduction with two additional reductions at 
lunch and one additional reduction at breakfast. USDA acknowledges that 
many respondents supported sodium reduction beyond what was proposed. 
However, many stakeholders, including school nutrition professionals 
and industry, expressed concern about meeting sodium levels beyond 
Sodium Target 2. The sodium limits finalized in this rule respond to 
stakeholder feedback by considering concerns that respondents raised 
around student acceptance of meals and the need for product 
reformulation, which many respondents suggested takes about three 
years.
    This final rule reduces sodium in school lunch and breakfast by 
approximately 15 percent and 10 percent, respectively, achieving or 
surpassing the first proposed reduction informed by FDA's voluntary 
sodium reduction goals while incorporating stakeholder input. The 
sodium reduction finalized in this rule falls between the first and 
second sodium reduction included in the proposed rule, and this final 
rule gives school nutrition professionals additional time to reach the 
new limits. The sodium limits finalized in this rulemaking also reflect 
a prior limit that school nutrition professionals and industry are 
familiar with and have worked toward in the past. As noted above, in SY 
2014-2015, many school food authorities were making significant 
progress toward meeting Sodium Target 2. A single sodium reduction for 
the school lunch and breakfast programs responds to stakeholders who 
suggested that one reduction for each program would be more attainable 
for schools and industry compared to the proposed series of reductions 
that would have spanned several years. Further, the implementation date 
for sodium reduction aligns with the weekly dietary limit for added 
sugars finalized in this rulemaking, allowing school nutrition 
professionals to implement both changes at the same time, rather than 
tracking multiple implementation dates.
    USDA recognizes that continuing to reduce sodium in school meals is 
important to improve nutrition security, and USDA will use information 
from its forthcoming study to inform future sodium reduction efforts. 
While schools and industry partners have made progress in sodium 
reduction over the years, USDA acknowledges that there are 
opportunities for improvement. The Dietary Guidelines also acknowledge 
the importance of reducing sodium intake in achieving a healthy dietary 
pattern.\79\ According to the Dietary Guidelines, over 95 percent of 
children ages 2-18 exceed recommended sodium levels.\80\ Consistent 
with the goals of the Dietary Guidelines, this final rule supports 
efforts to improve children's dietary patterns by gradually reducing 
sodium limits in school meals. Importantly, this final rule also 
considers operational feasibility, such as the need for manufacturers 
to reformulate products to support implementation of reduced sodium 
limits. As detailed above, the Dietary Guidelines acknowledge that most 
sodium consumed in the United States comes from salt added during

[[Page 31999]]

commercial processing, meaning that ``multiple strategies should be 
implemented to reduce sodium intake to recommended limits.'' \81\ This 
final rule represents a step toward that gradual, ongoing improvement; 
USDA agrees with public comments that noted the importance of continual 
progress toward reducing sodium in American's diets. Additionally, the 
gradual approach to sodium reduction finalized in this rule aligns with 
FDA goals and government-wide efforts to reduce sodium intake for the 
U.S. population. USDA understands that complementary efforts to reduce 
sodium across the entire U.S. food supply are important to the success 
of school meal sodium reductions; these efforts are discussed in more 
detail below, under Food and Drug Administration Voluntary Sodium 
Reduction Goals. USDA is committed to supporting schools' efforts to 
lower sodium, recognizing that reducing sodium intake is critical for 
chronic disease prevention and children's health as they grow into 
adulthood.
---------------------------------------------------------------------------

    \79\ See page 76. 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/.
    \80\ See page 77. 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/.
    \81\ See page 46 and page 102. 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/.
---------------------------------------------------------------------------

Food and Drug Administration Voluntary Sodium Reduction Goals
    To develop the proposed rule and this final rule, USDA considered 
FDA's voluntary sodium reduction goals, which aim to reduce sodium 
across the U.S. food supply, in the context of school meals. FDA is 
taking an iterative approach to sodium reduction, which involves 
establishing sodium targets, monitoring progress, evaluating progress, 
and engaging stakeholders. FDA recommended voluntary targets, issued in 
October 2021, be met in 2.5 years and expects to issue revised 
subsequent targets in the next few years to facilitate a gradual, 
iterative process to reduce sodium intake. Similar in some respects to 
FDA's short term sodium reduction targets, this final rule establishes 
a single limit sodium reduction for both the school lunch and breakfast 
programs for the near-term. Like FDA's efforts to monitor and evaluate 
progress, as mentioned above, USDA will examine sodium reduction 
efforts in school meals assess the potential impacts of these 
reductions on program operations and participation.
    USDA expects that the gradual approach to sodium reduction 
finalized in this rule will set schools and students up for success, as 
research \82\ indicates gradual sodium reductions are more acceptable 
to consumers. Aligning school meal sodium limits with FDA's voluntary 
sodium reduction goals may help support children's acceptance of school 
lunches and breakfasts with less sodium, as the school meal reductions 
will occur alongside sodium reductions in the broader U.S. food supply.
---------------------------------------------------------------------------

    \82\ McGuire S. Institute of Medicine. 2010. Strategies to 
Reduce Sodium Intake in the United States. Washington, DC: The 
National Academies Press. Adv Nutr. 2010 Nov;1(1):49-50. doi.org/10.3945/an.110.1002. Epub 2010 Nov 16. PMID: 22043452; PMCID: 
PMC3042781.
---------------------------------------------------------------------------

Naturally Occurring and ``Functional'' Sodium
    In public comments, several respondents raised concerns about 
naturally occurring sodium in foods such as bread, milk, and celery. As 
noted above and in the proposed rule, the sodium limits in this 
rulemaking are informed by FDA's voluntary sodium reduction goals. In 
developing these goals, FDA ``carefully studied the range of popular 
foods in today's marketplace to see what reductions are possible'' and 
considered ``the many functions of sodium in food, including taste, 
texture, microbial safety and stability.'' \83\ This means that FDA's 
goals are not intended to focus on foods (e.g., milk) that contain only 
naturally occurring sodium, but rather, to focus on foods where 
actionable reductions in sodium are feasible. USDA appreciates public 
comments about naturally occurring sodium in school meals. The sodium 
limits in this final rule, which are informed by FDA's voluntary sodium 
reduction goals, account for naturally occurring sodium levels in foods 
and beverages in the current food supply.
---------------------------------------------------------------------------

    \83\ U.S. Food and Drug Administration. Sodium Reduction. 
Available at: https://www.fda.gov/food/food-additives-petitions/sodium-reduction.
---------------------------------------------------------------------------

    In addition to public comments about naturally occurring sodium, 
USDA appreciates public comments about ``functional'' sodium. Many 
respondents requested that USDA account for ``functional'' sodium in 
this rulemaking. This is similar to feedback included in Successful 
Approaches to Reduce Sodium in School Meals, where manufacturers raised 
concerns about ``functional'' sodium which plays a role in food shelf 
life and spoilage.\84\ In particular, manufacturers worried that Sodium 
Target 3 may be so low in sodium that it would affect their ability to 
produce products such as bakery items, where sodium serves a functional 
purpose (e.g., salt to strengthen gluten). As noted in the study, while 
Sodium Target 2 seemed to be ``achievable'' by some manufacturers, 
Sodium Target 3 was considered ``infeasible'' by nearly all 
manufacturers, who raised concerns about the impact on food preparation 
and storage.\85\ The Dietary Reference Intakes for Sodium and Potassium 
\86\ also acknowledge the functional role sodium plays in the food 
supply, indicating that ``the major sources of sodium in the diet come 
from foods in which sodium chloride serves a functional purpose, 
including baked goods, processed meats, and cheese.'' Similar to 
examples cited in public comments, the Dietary Reference Intakes for 
Sodium and Potassium point out that sodium plays a role in preserving 
and fermenting foods, altering the texture of foods, and enhancing 
flavor. However, based on the evidence available, the Dietary Reference 
Intakes conclude that continued efforts to reduce sodium intake in the 
population are warranted.
---------------------------------------------------------------------------

    \84\ 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. Available at: 
https://www.fns.usda.gov/nslp/successful-approaches-reduce-sodium-school-meals-study.
    \85\ 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, Volume II: Detailed Study Findings. 
Prepared by 2M Research under Contract No. AG-3198-P-15-0040. 
Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition 
Service. Available at: https://www.fns.usda.gov/nslp/successful-approaches-reduce-sodium-school-meals-study.
    \86\ National Academies of Sciences, Engineering, and Medicine; 
Health and Medicine Division; Food and Nutrition Board; Committee to 
Review the Dietary Reference Intakes for Sodium and Potassium; Oria 
M, Harrison M, Stallings VA, editors. Dietary Reference Intakes for 
Sodium and Potassium. Washington (DC): National Academies Press 
(US); 2019 Mar 5. 11, Sodium Dietary Reference Intakes: Risk 
Characterization and Special Considerations for Public Health. 
Available at: https://www.ncbi.nlm.nih.gov/books/NBK545448/#sec_ch11_2.
---------------------------------------------------------------------------

    USDA appreciates the concerns that respondents raised regarding 
functional sodium. Respondents noted the role sodium plays in food 
safety, texture, and flavor, and emphasized the importance of 
considering these factors when determining sodium limits in the school 
meal programs. USDA considered and accounted for these comments when 
developing this final rule. Because the sodium limits finalized in this 
rulemaking are higher than those included in the proposed rule, USDA 
has concluded that the sodium limits in this final rule adequately 
account for ``functional'' sodium content in foods offered in school 
meals while still supporting efforts to reduce sodium intake among 
children. Further, the sodium limits in this rule do not approach 
Sodium Target 3, which manufacturers expressed

[[Page 32000]]

particular concern within the study Successful Approaches to Reduce 
Sodium in School Meals, as noted above. Finally, as noted, these sodium 
limits are informed by FDA's voluntary sodium reduction goals which 
account for functional sodium levels in foods and beverages in the 
current food supply. With these higher sodium limits, school nutrition 
professionals will have room to include foods with naturally occurring 
or ``functional'' sodium on their menus, including foods that are 
popular among children.
    In summary, the overall weekly sodium limits for school meals 
finalized in this rule take into account levels of sodium needed to 
accommodate continued service of healthful foods with naturally 
occurring and functional sodium. Therefore, foods and beverages 
containing naturally occurring and functional sodium are not exempt 
from these sodium limits; rather, the sodium limits in this final rule 
account for such forms of sodium. USDA estimates that under this rule, 
schools will continue to be able to serve popular foods and beverages 
containing naturally occurring and functional sodium with similar 
frequency as they do currently. While this rulemaking gradually reduces 
the overall weekly sodium levels in school meals, the limits finalized 
in this rule allow for foods and beverages with naturally occurring and 
functional sodium. USDA anticipates that manufacturers will continue to 
explore all avenues of sodium reduction, including product 
reformulation and new technologies to reduce sodium, and encourages 
these efforts. As detailed below, USDA also expects that menu planners 
will play an important role in gradually reducing sodium levels in 
school meals over time. USDA anticipates that this gradual reduction in 
weekly average sodium limits will continue to allow menu planners 
flexibility to offer meals and menu items that children enjoy.
Ongoing Support for Sodium Reduction Implementation
    Successfully reducing sodium in school meals will require the 
commitment and dedication of all school meals stakeholders. For its 
part, USDA remains committed to ensuring that menu planners receive the 
support and technical assistance needed to offer students meals that 
comply with the sodium limits in this rulemaking. USDA will evaluate 
progress toward reducing sodium in school meals, as well as in the 
broader food supply, on an ongoing basis. School nutrition 
professionals advocated for more gradual sodium reductions to allow 
menu planners time to modify menus and to give children's palates time 
to adapt; this rule provides that additional time. Additionally, USDA 
is committed to providing ongoing support to schools through efforts 
like the HMI Initiative, Team Nutrition grants, Farm to School grants, 
and tailored technical assistance. USDA welcomes stakeholder input on 
successful strategies to reduce sodium in school meals, and the 
additional assistance and guidance needed from USDA to support these 
efforts. Further, USDA expects that planned research on sodium 
reduction in school meals will help to inform future sodium reductions.
Best Practice Product-Based Sodium Limits
    USDA appreciates comments that provided suggestions for best 
practice product-based sodium limits. Consistent with the proposed 
rule, this final rule does not require product-based sodium limits for 
specific foods and beverages; however, USDA will issue guidance on best 
practice product limits for high contributors of sodium in school meals 
and will incorporate FDA's voluntary sodium reduction goals. This 
guidance is intended to help schools procure lower sodium products for 
their weekly lunch and breakfast menus. Best practice limits provided 
in future guidance will be recommendations, not required limits.
    Accordingly, this final rule establishes sodium limits found at 7 
CFR 210.10(c) and (f)(4) and 7 CFR 220.8(c) and (f)(4) of the 
regulations. As noted, schools will maintain existing sodium limits 
(Sodium Target 1A at lunch and Sodium Target 1 at breakfast) through 
June 30, 2027. Schools will not need to make any changes to comply with 
the sodium provision of this final rule until July 1, 2027, when the 
sodium reduction included in this final rule must be implemented.

Section 6: Meats/Meat Alternates at Breakfast

Current Requirement

    Current regulations at 7 CFR 220.8(c)(2) require three food 
components for a complete school breakfast: fruits, grains, and fluid 
milk. There is no meats/meat alternates component required at 
breakfast; therefore, under the current SBP meal pattern, a meat/meat 
alternate offered at breakfast credits toward the weekly grains 
requirement. Under current regulations, schools may substitute a 1.0 
ounce equivalent of meat/meat alternate for a 1.0 ounce equivalent of 
grains, after meeting the daily minimum grains requirement.\87\ Meats/
meat alternates \88\ may also be offered as ``extra'' food items at 
breakfast. ``Extra'' food items are not part of the reimbursable school 
meal, but do count toward the weekly dietary specifications for 
calories, saturated fat, sodium, and trans fat.
---------------------------------------------------------------------------

    \87\ Under current regulations, the minimum daily grains 
requirement for each age/grade group at breakfast is 1.0 ounce 
equivalent.
    \88\ ``Meat alternates'' include cheese, eggs, yogurt, nuts and 
seeds, tofu and soy products, and beans and peas.
---------------------------------------------------------------------------

Proposed Rule

    In the 2020 proposed rule, USDA set forth a combined meats/meat 
alternates and grains component. Under the proposal, schools would have 
the option to serve meats/meat alternates, grains, or a combination of 
both, depending on school and student preferences. The 2020 proposed 
rule also proposed to remove the requirement for schools to offer 1.0 
ounce equivalent of grains each day at breakfast. Instead, the daily 
and weekly ounce equivalency requirements for the combined component 
could be met with meats/meat alternates, grains, or a combination of 
both.

Public Comments on 2020 Proposed Rule

    USDA received 556 comments on the 2020 proposed rule about the 
combined meats/meat alternates and grains component at breakfast, a 
majority of which were categorized as ``mixed'' or ``other'' comments. 
Overall, 95 comments supported the proposal, including 86 unique 
comments, and 41 comments were opposed, including 38 unique comments.
    Proponents, including State agencies, industry respondents, 
advocacy groups, and school districts, asserted that a combined meats/
meat alternates and grains component would increase the variety of 
appealing breakfast options available to schools. Proponents maintained 
that this change would deliver protein-rich breakfasts that students 
enjoy, which they argued could encourage student participation and 
reduce food waste. One school district noted that parents and guardians 
often request school breakfasts with more protein and less added 
sugars. Other respondents agreed, noting that this change could 
decrease the added sugars in school breakfasts.
    Proponents maintained that the proposal would simplify regulations 
and menu planning. Industry and advocacy groups that supported this 
change asserted that the current minimum grains requirement is 
burdensome and prevents some schools from offering meats/meat 
alternates at

[[Page 32001]]

breakfast. One school district suggested this change would allow for 
more creative menu planning. Others, including State agencies and 
advocacy groups, provided examples of foods that schools could offer 
more easily under this change, such as yogurt parfaits, turkey sausage, 
and vegetable omelets. One respondent mentioned that protein-rich 
breakfast sandwiches could be offered as grab-and-go items for 
students. Another respondent noted that protein foods are ``a great way 
to start the day'' and an option that students enjoy.
    Some respondents, including advocacy groups and individuals, were 
concerned that this change could lead to an increase in schools 
offering meat products that are high in saturated fat and sodium. 
Opponents suggested that consuming too much meat has adverse health 
effects, and some advised USDA that ``processed meats should be very 
limited or not consumed at all'' in school meals. Other respondents, 
including industry respondents, cautioned against removing the minimum 
grains requirement, citing the health benefits of grains and noting 
that grains are an important source of fiber. However, proponents 
emphasized that a wide variety of nutritious meats/meat alternates may 
be offered in school breakfasts. Further, one advocacy group emphasized 
that the current weekly saturated fat and sodium restrictions would 
limit the amount of processed meat items. A school district agreed, 
suggesting that the dietary specifications for calories, sodium, and 
saturated fat already constrain the amount of animal fats that can be 
offered each school week.
    Some respondents offered modifications to the proposal. For 
example, an individual argued that each school breakfast should require 
grains and meats/meat alternates, while a State agency suggested USDA 
allow schools to serve meats/meat alternates without a grain three 
times per week, so that two times per week, schools must meet a minimum 
grains requirement. An industry respondent suggested a minimum weekly 
(rather than daily) grains requirement. Advocacy groups and individuals 
suggested placing specific calorie and sodium limits on meats served at 
breakfast; presumably, in addition to the weekly calorie and sodium 
limits already in place for school breakfasts. While several 
respondents noted that this proposal would help address concerns about 
added sugars in school breakfast, some respondents, including a State 
agency, recommended that USDA also place limits on specific grain items 
that are high in added sugars.

Final Rule

    This final rule codifies the combined grains and meats/meat 
alternates meal component at breakfast and removes the requirement for 
schools to offer 1.0 ounce equivalent of grains each day at breakfast. 
Schools may offer grains, meats/meat alternates, or a combination of 
both to meet this combined component requirement, based on ounce 
equivalents. The minimum daily requirement (1.0 ounce equivalent) and 
minimum weekly requirements (7.0-9.0 ounce equivalents, depending on 
the age/grade group) for the combined component remains the same; 
however, this rule allows schools to meet the daily and weekly 
requirements by offering grains, meats/meat alternates, or a 
combination of both to meet minimum ounce equivalents.
    Schools are not required to make any changes to menus under this 
provision. However, this change gives menu planners more flexibility 
and options to plan breakfast menus that meet student preferences and 
are compatible with meal service models, cost considerations, and other 
local factors. Schools have discretion to decide what combination of 
grains and/or meats/meat alternates to offer at breakfast to meet the 
minimum ounce equivalents. The Dietary Guidelines recommend including 
both grains and protein foods in healthy eating patterns.\89\ As such, 
USDA encourages schools to offer a mix of grains and meats/meat 
alternates at breakfast throughout the school week.
---------------------------------------------------------------------------

    \89\ The Dietary Guidelines include recommendations for ``food 
groups--vegetables, fruits, grains, dairy, and protein foods--eaten 
at an appropriate calorie level and in forms with limited amounts of 
added sugars, saturated fat, and sodium''. 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: https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------

    USDA appreciates comments submitted in response to the 2020 
proposed rule that highlighted the importance of reducing added sugars 
in school meals. This feedback, and later feedback gathered through 
USDA's stakeholder engagement campaign in summer 2022, informed USDA's 
proposals to limit added sugars in school meals. USDA agrees with 
respondents that allowing schools more flexibility to offer meats/meat 
alternates at breakfast will support implementation of the new added 
sugars limits outlined in Section 2: Added Sugars.
    As discussed in Section 4: Whole Grains, at least 80 percent of the 
weekly grains offered at school breakfast must be whole grain-rich, and 
the remaining grain items offered may be whole grain-rich or enriched. 
Schools that choose to offer a mix of grains and meats/meat alternates 
at breakfast will calculate the required whole grain-rich offerings 
based on the total amount of grains offered at breakfast during the 
week, by ounce equivalents.
    According to USDA's School Nutrition and Meal Cost Study,\90\ among 
children who participate in the SBP as opposed to skipping breakfast or 
eating at home, appealing food was among the top three reasons for 
student participation. Relative to school lunch, current school 
breakfast participation is low. As suggested by respondents, providing 
school nutrition professionals with more flexibility to offer a variety 
of breakfast foods that students enjoy could encourage student 
participation. For example, this rule allows schools to offer scrambled 
eggs, a fruit cup, and low-fat milk as a complete breakfast.
---------------------------------------------------------------------------

    \90\ See Table 5.2. Mean Percentage of Observed Trays including 
Specific Foods and Mean Percentage of Food Wasted in SBP Breakfasts. 
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://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
---------------------------------------------------------------------------

    USDA understands concerns raised by some respondents regarding meat 
products that are high in saturated fat and sodium. The dietary 
specifications for calories, saturated fat, and sodium remain in place 
under this rule, and as detailed in Section 5: Sodium, this rule 
implements an additional sodium reduction in school meals. USDA agrees 
with respondents that suggested that the dietary specifications 
encourage schools to choose options that are low in saturated fat and 
sodium. According to USDA's School Nutrition and Meal Cost Study, the 
most common categories of meats/meat alternates offered in school 
breakfasts in SY 2014-2015 were cheese and yogurt.\91\ USDA encourages 
schools

[[Page 32002]]

opting to serve meats/meat alternates at breakfast to offer a wide 
variety of nutrient-dense options, including vegetarian options such as 
yogurt low in added sugars; \92\ breakfast bean burritos; and eggs. 
USDA acknowledges respondent requests to limit ``processed meats'' in 
the SBP. However, the dietary specifications for calories, saturated 
fat, and sodium already limit the amount of meats with added salt that 
are offered in school breakfasts. Schools must plan all meals to meet 
the dietary specifications, and these limits provide schools with 
flexibility to choose foods that meet student preferences while staying 
within a framework that results in nutritious meals. USDA will not 
restrict the types of meats permitted at breakfast, beyond existing 
food crediting guidelines.
---------------------------------------------------------------------------

    \91\ The most common categories of meat/meat alternates offered 
at breakfast in SY 2014-2015 were cheese (offered on 5.4 percent of 
observed trays) and yogurt (offered on 5.0 percent of observed 
trays). 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. Available 
at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
    \92\ Please see Section 2: Added Sugars, for information on the 
new added sugars limit for yogurt, which will take effect in SY 
2025-2026.
---------------------------------------------------------------------------

    This provision does not change the breakfast meal pattern 
requirements for preschool students. Under 7 CFR 220.8(o), schools 
serving breakfasts to children ages 1 through 4 may substitute meats/
meat alternates for the entire grains component up to three times per 
week. However, schools are reminded of the existing co-mingling 
flexibilities, permitted in USDA guidance.\93\ Schools that serve meals 
to preschoolers and K-5 students in the same meal service area at the 
same time may choose to serve the K-5 breakfast meal pattern under 7 
CFR 220.8 to both groups of children.
---------------------------------------------------------------------------

    \93\ U.S. Department of Agriculture. Flexibility for Co-Mingled 
Preschool Meals: Questions and Answers, June 30, 2017. Available at: 
https://www.fns.usda.gov/school-meals/flexibility-co-mingled-preschool-meals-questions-and-answers.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 220.8(c) introductory 
text and (c)(2), to codify the combined grains and meats/meat 
alternates component at breakfast and to remove the requirement for 
schools to offer 1.0 ounce equivalent of grains each day at breakfast. 
This change provides schools with more menu planning flexibility at 
breakfast. Schools are not required to change menus or operations as a 
result of this provision.

Section 7: Substituting Vegetables for Grains in Tribal Communities

Current Requirement

    Current regulations at 7 CFR 210.10(c)(3), 220.8(c)(3), 
225.16(f)(3), and 226.20(f) allow program operators in American Samoa, 
Puerto Rico, and the U.S. Virgin Islands to serve vegetables such as 
yams, plantains, or sweet potatoes to meet the grains or breads 
component.\94\ Additionally, this option is currently available to SFSP 
and CACFP sponsors, institutions, and facilities in Guam. The option to 
substitute vegetables for grains or breads is intended to accommodate 
cultural food preferences and to address product availability and cost 
concerns in these outlying areas.
---------------------------------------------------------------------------

    \94\ Current SFSP regulations at 7 CFR 225.15(f)(3) also allow 
sponsors in Trust Territory of the Pacific Islands, and the Northern 
Mariana Islands to substitute vegetables for breads. However, these 
references are outdated.
---------------------------------------------------------------------------

    As detailed in Section 1: Background, USDA sought stakeholder input 
when developing the proposed rule. As part of this effort, USDA 
conducted listening sessions with Tribal leaders, nutritionists, and 
schools in summer 2022. During these listening sessions, Tribal 
nutritionists and schools expressed concern that the grains 
requirements are a poor nutritional match for Indigenous children 
because grains, such as wheat and flour, were not traditionally a part 
of their ancestors' diets. Tribal nutritionists and schools requested 
Indigenous starchy vegetables be allowed as a grain substitute, similar 
to the current option available for child nutrition program operators 
in American Samoa, Puerto Rico, and the U.S. Virgin Islands, and for 
SFSP and CACFP sponsors, institutions, and facilities in Guam.

Proposed Rule

    In response to stakeholder input, USDA proposed to add tribally 
operated schools, schools operated by the Bureau of Indian Education, 
and schools serving primarily American Indian or Alaska Native children 
to the list of schools at 7 CFR 210.10(c)(3) and 220.8(c)(3) that may 
serve vegetables to meet the grains requirements. For SFSP and CACFP, 
USDA proposed to revise 7 CFR 225.16(f)(3) and 226.20(f) to allow 
sponsors, institutions, and facilities, as applicable, that serve 
primarily American Indian or Alaska Native children to substitute 
vegetables for breads or grains. USDA also proposed to revise the 
current regulatory text for NSLP, SBP, SFSP, and CACFP to clarify that 
this provision allows the substitution of traditional Indigenous 
vegetables, such as prairie turnips. In the proposed SFSP regulatory 
text, USDA also removed outdated references to the Trust Territory of 
the Pacific Islands and the Northern Mariana Islands. Finally, USDA 
proposed to allow all schools, sponsors, institutions, and facilities 
in Guam and Hawaii to substitute vegetables for grains or breads, to 
reflect cultural food preferences.

Public Comments

    USDA received 264 comments on this proposal, including 143 unique 
comments. Of these, 104 supported the proposal, including 65 unique 
comments, none were opposed, and 154 were mixed, including 78 unique 
comments. School nutrition professionals, advocacy groups, professional 
organizations, State agencies, and individuals submitted comments on 
the proposal.
    Several respondents, including a national organization representing 
tens of thousands of school nutrition professionals, an advocacy group, 
State agencies, individuals, and a form letter campaign, supported the 
proposal. One individual emphasized the importance of recognizing 
children's personal, cultural, and traditional dietary preferences. 
Another individual stated that offering diverse and inclusive meal 
options promotes belonging and contributes to children's overall 
wellbeing. This respondent further emphasized the importance of 
``taking steps toward embracing our differences, celebrating our 
diversity, and providing meals that mirror the rich tapestry of 
cultures represented within our school communities.'' One advocacy 
group supported the proposal, suggesting that it would ``provide 
equitable access and outcomes to American Indian and Alaska Native 
communities and children.'' A State agency described the proposal as a 
``nutritional benefit.'' A professional organization affirmed that 
serving culturally responsive meals and snacks is an equitable practice 
that may improve meal consumption and strengthen relationships between 
providers, families, and participants.
    Some respondents provided feedback about USDA's proposal to allow 
program operators in Guam and Hawaii to substitute vegetables for 
grains or breads. An advocacy group applauded USDA for expanding this 
option to program operators in Guam and Hawaii. One professional 
organization encouraged USDA to further accommodate the cultural food 
preferences of Native Hawaiians. A few other respondents expressed 
confusion about how the proposal for Guam and Hawaii would interact 
with the proposal for child nutrition program operators on the mainland 
that serve primarily American Indian and Alaska Native children. To 
clarify, USDA proposed to expand this option to all schools, sponsors, 
institutions, and facilities in Guam and Hawaii. Under the proposed 
rule, the option to substitute vegetables for grains or breads would be 
available to any child nutrition program operator

[[Page 32003]]

located in Guam or Hawaii. In addition, under the proposed rule, 
program operators on the mainland that serve primarily American Indian 
or Alaska Native children would be eligible to use this option.
    Several respondents suggested expanding the proposal, in most 
cases, advocating for all schools, sponsors, institutions, and 
facilities to be allowed to substitute vegetables for grains or breads, 
regardless of their location or participant demographics. One advocacy 
group suggested expanding the menu planning option to participants from 
other demographic groups who consume starchy vegetables in place of 
grains. Going further, a dietitian suggested that expanding the option 
to all schools, sponsors, institutions, and facilities would eliminate 
confusion in menu planning. An advocacy group agreed, asserting that 
vegetable consumption is lacking among all children and that allowing 
this option for all sites would help reduce sugar, especially at 
breakfast. A professional organization supported expanding this 
provision to all schools to avoid excluding any students. An advocacy 
group agreed, noting that the vast majority of American Indian and 
Alaska Native children attend public schools that are not tribally 
operated or majority American Indian or Alaska Native. This respondent 
concluded that, as proposed, the option may not have its intended 
impact. A few other respondents raised concerns about the limited focus 
of the provision, but instead of expanding it, recommended not 
finalizing it. For example, a State agency acknowledged the importance 
of offering culturally appropriate foods in the child nutrition 
programs but raised equity concerns given the narrow focus of the 
provision; this State agency cautioned against finalizing the proposal. 
A school nutrition professional claimed that, as proposed, this menu 
planning option would create division and confusion regarding who can 
implement the provision. A few respondents offered other suggestions. A 
form letter suggested that USDA require vegetables offered in place of 
grains to be prepared in ways that align with traditional preparations, 
such as baking or boiling. A professional organization suggested that 
USDA limit substitutions under this provision to starchy vegetables 
only. This respondent also advocated for more prescriptive language on 
this provision's eligibility criteria to preserve program integrity and 
ensure the intended populations are served.
    Some respondents requested clarification or additional support. A 
few respondents, including a State agency and professional 
organization, requested guidance to support implementation of this 
provision, including guidance on determining whether a program operator 
qualifies to use this option. A professional organization expressed 
concerns about possible administrative burden, specifically for 
enrolled CACFP sites, further advocating for this provision to be 
expanded to all program operators. This respondent argued that 
expanding this option to all operators would prevent administrative 
burden and promote inclusivity. A form letter campaign did not cite any 
specific concerns, but asked USDA to ensure that the administrative 
burden associated with enacting the change will be minimal. A State 
agency asked for clarification on whether the menu planning option 
applies to the infant meal pattern. This respondent did not support 
allowing this option for infants, explaining that allowing vegetables 
to substitute for other food sources in the infant meal pattern, such 
as infant cereal, may reduce critical sources of iron in an infant's 
diet. Another State agency asserted that USDA would need to provide 
clear guidance about the serving sizes of vegetables that would be 
required to meet the grains requirements.
    In the proposed rule, USDA explained that the list of vegetables 
included in the proposed regulatory text was not exhaustive. However, 
USDA encouraged public input on any other vegetables that should be 
listed as examples in the regulatory text, and some respondents shared 
feedback. Several advocacy groups suggested that squash, cassava 
(yuca), and taro would be suitable substitutions for grains and 
recommended including them as examples. A State agency suggested that 
Native Hawaiian traditional vegetables such as taro, poi, breadfruit, 
Okinawan sweet potato, and Molokai sweet potato be included in the 
regulatory text as examples of vegetables that may be substituted for 
grains. One professional organization asked USDA to clarify whether all 
vegetables can be substituted for grains. Another proponent recommended 
that instead of allowing any vegetable to substitute for grains, as 
proposed, that USDA set standards about which vegetable subgroups can 
be substituted for grains to ensure that the vegetables are 
nutritionally comparable to grains.
    In addition to general feedback on the proposal, USDA requested 
public input on additional menu planning options that would improve the 
school meal programs for American Indian and Alaska Native children by 
asking the following question:
     Are there other specific areas of the school meal pattern 
that present challenges to serving culturally appropriate meals for 
American Indian and Alaska Native children, specifically regarding any 
regulatory requirements in 7 CFR 210.10 and 220.8?
    A few respondents provided input on specific areas of the school 
meal patterns that present challenges to serving culturally appropriate 
meals. One State agency identified that barriers to serving hunted game 
meats make it challenging to serve culturally appropriate meals to 
American Indian and Alaska Native children. This respondent also 
mentioned that milk is not a part of the traditional eating pattern for 
American Indian and Alaska Native communities. Similarly, an individual 
stated the milk requirement is challenging to implement due to the high 
prevalence of lactose intolerance among American Indian and Alaska 
Native populations. Other respondents mentioned challenges with food 
crediting. A State agency encouraged USDA to ``simplify the crediting 
process for scratch-cooked meals'' to incentivize schools to scratch 
cook culturally relevant meals. Similarly, an advocacy group suggested 
USDA consider a ``simplified'' crediting model that would facilitate 
scratch cooking and procurement of minimally processed products. 
Lastly, a form letter campaign voiced concerns about the potential for 
additional, case-by-case menu planning options due to the 
administrative burden of such a process. Instead, this form letter 
recommended that USDA address any barriers to serving culturally 
appropriate meals through comprehensive changes to the meal patterns.

Final Rule

    The final rule amends 7 CFR 210.10(c)(3) and 220.8(c)(3) to allow 
school food authorities and schools that are tribally operated, 
operated by the Bureau of Indian Education, and that serve primarily 
American Indian or Alaska Native children to serve vegetables to meet 
the grains requirement in NSLP and SBP. For SFSP and CACFP, USDA 
finalizes the proposal to revise 7 CFR 225.16(f)(3) and 226.20(f) to 
allow sponsors, institutions, and facilities, as applicable, that serve 
primarily American Indian or Alaska Native participants to substitute 
vegetables for grains or breads. Additionally, this final rule allows 
all schools, sponsors, institutions, and facilities in Guam and Hawaii 
to serve vegetables to meet the grains or breads

[[Page 32004]]

requirement, and in the SFSP regulatory text, removes outdated 
references to the Trust Territory of the Pacific Islands and the 
Northern Mariana Islands. Lastly, for all child nutrition programs 
applicable to this provision, this final rule clarifies that any 
creditable vegetable can be substituted for grains or breads.
    While the proposed rule only listed ``schools'' in the NSLP and SBP 
regulatory text, this final rule clarifies that this option is 
available to ``school food authorities and schools'' that qualify. This 
change responds to comments that encouraged USDA to ensure that the 
administrative burden associated with enacting the change is minimal. 
By allowing implementation at the school food authority level, this 
final rule simplifies use of this option for school food authorities 
that qualify and reduces the documentation burden. Instead of 
maintaining documentation for all qualifying schools, school food 
authorities that qualify would maintain documentation at the school 
food authority level.
    Program operators in Guam and Hawaii are not required to submit a 
request for approval to use this menu planning option; it is 
automatically available to any school, sponsor, institution, or 
facility in Guam or Hawaii that chooses to use it. Therefore, upon 
implementation of this final rule, all schools, sponsors, institutions, 
and facilities located in American Samoa, Guam, Hawaii, Puerto Rico, or 
the U.S. Virgin Islands are eligible for this option; it is not 
necessary for program operators in these specific areas to maintain 
documentation to demonstrate eligibility for this option. However, 
school food authorities or schools that are tribally operated, operated 
by the Bureau of Indian Education, or program operators that serve 
primarily American Indian or Alaska Native children must maintain 
documentation to demonstrate that they qualify if they choose to use 
this option.
    For the NSLP and SBP, the school food authority is responsible for 
maintaining documentation to demonstrate that the school food authority 
or its schools qualify to use this option. If the school food authority 
is tribally operated, is operated by the Bureau of Indian Education, or 
serves primarily American Indian or Alaska Native students, then the 
school food authority would maintain school food authority-level 
documentation of eligibility. If individual schools within the school 
food authority qualify for this option, then the school food authority 
would maintain documentation for its qualifying schools, as applicable. 
As described in the proposed rule, school food authorities or schools 
``serving primarily American Indian or Alaska Native children'' include 
school food authorities or schools where American Indian or Alaska 
Native children represent the largest demographic group of enrolled 
children. USDA will issue guidance on acceptable data that can be used 
to report student demographics, which may include participant self-
reporting, school data, or census data. School food authorities must 
maintain this documentation for program reviews. For example:
     For school food authorities that are tribally operated or 
operated by the Bureau of Indian Education, an example of documentation 
is a certifying statement indicating the school food authority is 
tribally operated or operated by the Bureau of Indian Education.
     For schools serving primarily American Indian or Alaska 
Native children, an example of documentation may be aggregate data of 
student demographics, such as participant self-reporting, school data, 
or census data.
    For the SFSP and CACFP, a sponsor, institution, or facility that 
chooses to use this menu planning option must maintain documentation 
demonstrating that the site serves primarily American Indian or Alaska 
Native participants. USDA will issue guidance on acceptable data that 
can be used to report participant demographics, which may include 
participant self-reporting, school data, or census data. For example:
     For enrolled sites, the sponsor, institution, or facility 
determines, based on participant self-reporting, that American Indian 
or Alaska Native participants represent the largest demographic group 
of enrolled participants.
     For enrolled sites, the sponsor, institution, or facility 
provides a certifying statement indicating that the site primarily 
serves American Indian or Alaska Native participants.
     For non-enrolled sites, the sponsor, institution, or 
facility determines that American Indian or Alaska Native participants 
represent the largest demographic group of participants served by the 
site, based on school or census data.
    This final rule allows any vegetable to substitute for the grains 
or bread component. However, USDA emphasizes the importance of 
traditional and culturally relevant vegetables, and this final rule 
provides examples of traditional and cultural vegetables, such as 
prairie turnips and breadfruit, in the revised regulatory text at 7 CFR 
210.10(c)(3), 220.8(c)(3), 225.16(f)(3), and 226.20(f). Respondents 
provided examples such as squash, cassava (yuca), and taro, all of 
which would be traditional and culturally relevant vegetables that may 
substitute for grains or breads under the final rule.
    Some respondents asked USDA to establish vegetable subgroup 
requirements for the provision, or to limit this provision to 
vegetables prepared in specific ways. USDA is not requiring specific 
vegetable subgroups or types of preparation in this final rule to 
minimize burden for program operators that choose to use this 
flexibility. This approach is imperative for program operators of the 
SFSP and CACFP because SFSP and CACFP meal patterns do not require 
vegetable subgroups and a vegetable subgroup requirement for this 
provision could create barriers to implementation in these programs. 
Allowing program operators the flexibility to offer vegetables from any 
subgroup in place of grains or breads allows for a variety of 
vegetables to be offered, many of which are underconsumed among all 
populations.\95\
---------------------------------------------------------------------------

    \95\ According to the Dietary Guidelines, ``Almost 90 percent of 
the U.S. population does not meet the recommendation for vegetables. 
In addition, with few exceptions, the U.S. population does not meet 
intake recommendations for any of the vegetable subgroups.'' 
Further, according to the Dietary Guidelines, ``For most 
individuals, following a healthy eating pattern will require an 
increase in total vegetable intake and from all vegetable subgroups, 
shifting to nutrient-dense forms, and an increase in the variety of 
different vegetables consumed over time.'' See page 31. 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/.
---------------------------------------------------------------------------

    A few respondents requested clarification on specific questions. A 
State agency requested clarification on whether this option would be 
applicable to the infant meal pattern. This rule does extend the option 
to the infant meal pattern. Extending the option to substitute 
vegetables for grains in the infant meal pattern allows infants to also 
consume foods, and develop taste preferences, aligned with an 
Indigenous diet. USDA recognizes the concern that allowing this 
flexibility for infants could result in a reduced consumption of 
critical nutrients, such as iron. However, the infant meal pattern 
allows a variety of foods to meet the required food components for 
meals and snacks, and only currently requires a grain item at snack 
when a child is developmentally ready to accept those foods. Allowing 
sponsors, institutions, and facilities to serve culturally responsive 
meals and snacks can improve meal consumption and strengthen 
relationships between providers, families, and participants.

[[Page 32005]]

    USDA appreciates public feedback on the menu planning options for 
American Indian and Alaska Native children. Overall, respondents 
expressed appreciation for USDA's efforts to improve the child 
nutrition programs for American Indian or Alaska Native children. In 
addition to these supportive comments, several respondents recommended 
that USDA expand the proposed menu planning option to more, or even 
all, child nutrition program operators. USDA acknowledges that 
additional schools, sponsors, institutions, and facilities may benefit 
from this provision and appreciates this feedback. However, as 
proposed, this provision was intended for certain schools, sponsors, 
institutions, and facilities. Other program operators that were not 
covered by the proposal, as well as State agencies responsible for 
program monitoring, did not have the opportunity to provide public 
comment on a potential broader change. With the exception of clarifying 
that this option may be applied at the school food authority level, 
this final rule does not expand this option to additional program 
operators, beyond those covered by the proposed rule.
    This final rule is intended to support American Indian or Alaska 
Native participants in child nutrition programs and to uphold USDA's 
commitment to advancing equity, as detailed in the Department's Equity 
Action Plan.\96\ In this plan, USDA outlines its commitment to 
advancing equity, including a focus on increasing Tribal trust. The 
Equity Action Plan highlights the importance of considering policy 
design and implementation to ensure Tribal communities have equitable 
access to Federal programs and services, including incorporating 
Indigenous values and perspectives in program design and delivery. 
While this final rule does not have as broad of a reach as some 
respondents requested, USDA remains committed to promoting equitable 
access to the child nutrition programs. USDA will continue to work with 
its partners to make the child nutrition programs more inclusive for 
all child and adult participants.
---------------------------------------------------------------------------

    \96\ U.S. Department of Agriculture, USDA Equity Action Plan in 
Support of Executive Order (E.O.) 13985 Advancing Racial Equity and 
Support for Underserved Communities through the Federal Government, 
February 10, 2022. Available at: https://www.usda.gov/equity/action-plan.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.10(c)(3) and 
220.8(c)(3), to allow school food authorities and schools that are 
tribally operated, operated by the Bureau of Indian Education, and that 
serve primarily American Indian or Alaska Native children to the list 
of schools \97\ that may serve vegetables to meet the grains 
requirement. For SFSP and CACFP, this final rule amends 7 CFR 
225.16(f)(3) and 226.20(f) to allow sponsors, institutions, and 
facilities, as applicable, that serve primarily American Indian or 
Alaska Native participants to substitute vegetables for grains or 
breads. This final rule also amends 7 CFR 210.10(c)(3), 220.8(c)(3), 
225.16(f)(3), and 226.20(f) to allow all schools, sponsors, 
institutions, and facilities in Guam and Hawaii to serve vegetables to 
meet the grains or breads requirement. These changes provide child 
nutrition program operators an optional menu planning flexibility. 
Program operators are not required to change menus or operations as a 
result of this provision.
---------------------------------------------------------------------------

    \97\ As noted above, USDA currently allows schools in American 
Samoa, Puerto Rico, and the U.S. Virgin Islands to serve vegetables 
such as yams, plantains, or sweet potatoes to meet the grains 
component. See 7 CFR 210.10(c)(3) and 220.8(c)(3).
---------------------------------------------------------------------------

Section 8: Traditional Indigenous Foods

Current Requirement

    Information about crediting foods in the school meal programs is 
primarily shared with program operators through USDA guidance, not 
through regulation. While traditional Indigenous foods are not 
explicitly mentioned in the school lunch and breakfast program 
regulations, they may be served in reimbursable school meals in 
accordance with USDA guidance.
    USDA does not define the term ``traditional foods;'' however, the 
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)) 
defines traditional food as ``food that has traditionally been prepared 
and consumed by an [American] Indian tribe'' and includes the following 
example foods in its definition: wild game meat, fish, seafood, marine 
mammals, plants, and berries. USDA acknowledges that there are 574 
federally recognized Tribes in the U.S. and appreciates the importance 
of recognizing the diversity of American Indian and Alaska Native 
cultures and traditions, including food traditions.
    In 2015, USDA issued policy guidance \98\ about serving traditional 
Indigenous foods in the child nutrition programs. This guidance 
explained that if a food is served as part of a reimbursable meal, but 
not listed in the Food Buying Guide for Child Nutrition Programs (Food 
Buying Guide), the yield information of a similar food or in-house 
yield \99\ may be used to determine a food's contribution toward meal 
pattern requirements. The 2015 guidance also explained how to credit 
certain traditional foods, such as wild rice, blue cornmeal, and ground 
buffalo. In 2023, this guidance, titled Crediting Traditional 
Indigenous Foods in Child Nutrition Programs, was revised to further 
clarify how to credit traditional Indigenous foods and to expand the 
list of traditional Indigenous foods that credit similarly to products 
already listed in the Food Buying Guide. Additional resources, such as 
USDA's fact sheet, Bringing Tribal Foods and Traditions into 
Cafeterias, Classrooms, and Gardens \100\ encourage schools to 
incorporate traditional Indigenous foods in school menus.
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    \98\ U.S. Department of Agriculture, Child Nutrition Programs 
and Traditional Foods, July 15, 2015. Available at: https://www.fns.usda.gov/cn/child-nutrition-programs-and-traditional-foods.
    \99\ Information on calculating in-house yield data may be found 
on page I-5 of the Food Buying Guide.
    \100\ U.S. Department of Agriculture, Bringing Tribal Foods and 
Traditions Into Cafeterias, Classrooms, and Gardens, August 2017. 
Available at: https://www.fns.usda.gov/f2s/tribal-foods.
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to explicitly state in regulation that traditional 
foods may be served in reimbursable school meals. The intent of this 
proposal was to emphasize USDA's support for integrating traditional 
Indigenous foods into the school meal programs. While many traditional 
Indigenous foods may already be served in the programs under existing 
USDA guidance, USDA expected that this regulatory change would help to 
address the perception that traditional foods are not creditable, draw 
attention to the option to serve traditional Indigenous foods, and 
support local efforts to incorporate traditional Indigenous foods into 
school meals.

Public Comments

    USDA received over 200 comments on the proposal to add 
``traditional foods'' to the regulatory text. Of these, 168 supported 
the proposal, including 68 unique comments. While only one respondent 
requested no changes, 70 respondents, including 50 unique comments, 
provided additional feedback on the proposal.
    Many respondents, including State agencies, advocacy groups, a 
national organization representing tens of thousands of school 
nutrition professionals, school districts, a form letter campaign, and 
individuals, expressed support for the traditional foods provision and 
including traditional Indigenous foods in school meals. One proponent 
explained that including traditional foods in school

[[Page 32006]]

meals allows Indigenous children to meet their nutritional needs in a 
way that connects them with their culture. Another proponent emphasized 
the importance of connecting children with traditional foods and 
supported greater inclusion of traditional foods to help address health 
disparities. An advocacy group suggested the proposal would provide 
clarity and support to schools that want to incorporate traditional 
foods into their menus. An individual stated the proposal is important 
because ``school meals should reflect the cultural heritage and values 
of the students they serve.'' Similarly, an advocacy group suggested 
that the proposal would encourage schools to offer more traditional 
foods, which can increase school meal participation and honor students' 
cultural traditions. Another advocacy group stated the proposal 
represents ``progress toward making school meals standards more 
equitable.''
    Several respondents recommended that USDA broaden the scope of this 
provision. For example, a school district and an advocacy group 
recommended that USDA encourage all schools to offer foods considered 
traditional to all cultures, not just American Indian and Alaska Native 
communities. Similarly, several advocacy groups suggested that USDA 
consider additional ways meal pattern requirements can be more 
inclusive of all students' ethnicities and cultural backgrounds. One 
advocacy group encouraged USDA to provide training and technical 
assistance, such as guidance, menus, and recipes, to support the 
inclusion of foods traditional to a variety of cultures. Another 
advocacy group stated that more culturally relevant menu planning 
resources would ``support the breadth of diverse traditions and 
cultures across our nation.''
    A few proponents offered suggestions to help schools fully realize 
the intent of this change. An advocacy group suggested that USDA seek 
broad input from community members to ensure culturally relevant foods 
are included in the school meal programs without unnecessary barriers. 
A form letter campaign encouraged USDA to engage American Indian and 
Alaska Native communities when implementing this provision and stated 
that the expansion of traditional and cultural meal options would 
advance racial equity. An advocacy group suggested USDA ensure that 
``traditional foods are readily available in USDA foods, particularly 
through Tribal producers.''
    In addition to requesting general feedback on the proposal, USDA 
requested public input on the following questions:
     USDA has provided guidance \101\ on crediting certain 
traditional foods. Are there any other traditional foods that schools 
would like to serve, but are having difficulty serving? If so, what 
specific challenges are preventing schools from serving these foods?
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    \101\ U.S. Department of Agriculture, Child Nutrition Programs 
and Traditional Foods, July 15, 2015. Available at: https://www.fns.usda.gov/cn/child-nutrition-programs-and-traditional-foods.
---------------------------------------------------------------------------

     Which traditional foods should USDA provide yield 
information for and incorporate into the Food Buying Guide?
     Is ``traditional foods,'' as described in the Agriculture 
Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), an 
appropriate term to use, or do stakeholders recommend a different term?
    A few respondents provided input on the first question regarding 
traditional foods that are challenging to serve. A State agency noted 
that hunted game, foraged fruits, and freshly caught fish are 
challenging to serve due to local, State, and Federal food safety 
requirements. Another State agency provided feedback from a Tribal 
school in their State; the Tribal school explained that they cannot 
purchase venison from their local vendor and cited challenges serving 
maple syrup harvested by community members. One school nutrition 
professional mentioned that they have no difficulty serving traditional 
foods in their local area.
    Several respondents provided input on the second question, asking 
which traditional foods USDA should consider adding to the Food Buying 
Guide. A professional organization suggested USDA add wild game 
including moose, reindeer, and caribou; plants such as kelp and Eskimo 
potatoes; and fruits such as salmonberries. This respondent described 
these foods as nutritious and affirmed that these specific foods are 
important cultural foods for Alaska Native students. A State agency 
listed whitefish, walleye, and hickory nuts as traditional foods to be 
added to the Food Buying Guide. In a few cases, respondents recommended 
adding items that are already included in the Food Buying Guide, such 
as cranberries, chestnuts, venison, and bison.
    Some respondents suggested adding foods traditional to other 
cultures to the Food Buying Guide. One advocacy group recommended USDA 
expand the definition of traditional foods to include all cultures and 
provided several suggestions of foods to add, including bacalao (dried 
and salted codfish), broccoflower, chorizo, crowder peas, 
huckleberries, naan, smoked eel, and ulu. A school nutrition 
professional suggested adding Caribbean, Indian, and Asian foods to the 
Food Buying Guide. A few advocacy groups recommended adding bone broth, 
nori (dried, edible seaweed), pupusas, arepas, yucca, and curry dishes. 
Another respondent suggested that USDA credit breadfruit and taro as 
grains and cited their nutritional benefits. An individual and an 
advocacy group provided a list of native Hawaiian foods to include, 
such as purple sweet potato, taro, poi, seaweed, and coconut. For 
clarification, coconut, seaweed, poi, breadfruit, and taro are already 
included in the Food Buying Guide.
    A few respondents provided input on the third question, which asked 
whether ``traditional foods,'' as defined in the Agriculture 
Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), is an 
appropriate term to use in regulation. An advocacy group and a few 
State agencies expressed support for the term ``traditional foods'' as 
defined in the Agricultural Improvement Act of 2014. Another State 
agency acknowledged the importance of cultural foods in school meals 
but noted that foods considered to be ``traditional'' may have changed 
over time and questioned use of this term in the regulation. An 
individual recommended that foods traditional to Native Hawaiians be 
considered ``traditional foods'' for the purpose of the regulation. A 
professional organization encouraged USDA to expand its use of the term 
``traditional foods'' to include other cultures, stating that 
``traditional foods should not be limited to those consumed by an 
American Indian Tribe but be inclusive of other diverse cultures.'' A 
State agency supported inclusion of traditional foods and emphasized 
the importance of a clear explanation of what qualifies as a 
traditional food.
    Oral comments were submitted during a Tribal Consultation conducted 
by USDA with Tribal leaders in spring 2023. During this session, many 
participants expressed support for the term ``traditional foods'' as 
defined in the Agricultural Improvement Act of 2014 and as used in this 
provision. One Tribal leader mentioned that this term is recognizable 
among many Tribes. Consultation participants provided additional input 
on school meals. One Tribal leader acknowledged the challenge in 
establishing nutrition requirements that accommodate all communities 
because all Tribes are different. Another participant expressed 
concerns about added sugars and risk for diabetes and other chronic 
diseases among the American Indian and Alaska

[[Page 32007]]

Native populations. This participant claimed that in their view, 
improving the nutritional quality of school meals is a greater concern 
than serving traditional foods. Additionally, Tribal leaders cited meal 
costs and reimbursement rates as barriers to including more traditional 
foods in school menus.

Final Rule

    This final rule codifies the proposal to explicitly state in 
regulation that traditional Indigenous foods may be served in 
reimbursable school meals. Regulations at 7 CFR 210.10(c)(7) and 
220.8(c)(4) will include the definition of traditional foods from the 
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), 
which defines traditional food as ``food that has traditionally been 
prepared and consumed by an [American] Indian tribe,'' including wild 
game meat, fish, seafood, marine mammals, plants, and berries. As with 
all other foods offered in school meals, traditional Indigenous foods 
will continue to be subject to meal pattern requirements, including the 
weekly dietary specifications. While the proposed rule used the term 
``traditional foods,'' in this final rule, USDA uses the term 
``traditional Indigenous foods'' to better communicate the focus of 
this provision.
    USDA appreciates public comments received in response to this 
provision and feedback that stakeholders provided on serving 
traditional Indigenous foods in school meals. USDA recognizes that 
stakeholders support diversity in the child nutrition programs, 
including offering foods that are significant to students of all 
cultural backgrounds. As discussed in Section 14: Meal Modifications, 
USDA supports efforts to consider participant preferences when planning 
and preparing meals, including cultural food preferences. However, for 
this specific provision, USDA will use the term ``traditional 
Indigenous foods'' and use the definition of ``traditional foods'' from 
the Agriculture Improvement Act of 2014 and as referenced in the 
proposed rule. Food sovereignty and traditional foodways are critical 
in empowering Tribal communities' self-determination and incorporating 
American Indian and Alaska Native perspectives into USDA's nutrition 
assistance programs. USDA will continue to encourage program operators 
to develop menus that are culturally appropriate for all populations 
and that meet the needs of their communities. USDA's partnership with 
the Institute of Child Nutrition offers resources, such as the Child 
Nutrition Recipe Box and additional training materials, to support the 
integration of cultural foods in child nutrition programs. 
Additionally, USDA Foods in Schools provides a list of Available Foods 
each school year for program operators to purchase locally grown and 
produced foods.\102\
---------------------------------------------------------------------------

    \102\ U.S. Department of Agriculture. USDA Foods Available Foods 
List for SY 2024. January 9, 2023. Available at: https://www.fns.usda.gov/usda-fis/usda-foods-available.
---------------------------------------------------------------------------

    USDA appreciates stakeholder suggestions for traditional Indigenous 
foods, as well as other cultural foods, that should be added to the 
Food Buying Guide. In 2023, USDA added new yield data for highly 
requested foods such as chokecherries and taro to the Food Buying 
Guide. Additional traditional Indigenous foods that respondents 
suggested, such as kelp, are described in the Food Buying Guide as 
similar to other food items with comparable yield information; this 
information can be used when crediting similar foods for a reimbursable 
meal. Input provided through public comment will be beneficial as USDA 
continues its long-term initiative to identify more traditional foods 
to incorporate into the Food Buying Guide. USDA also appreciates the 
importance of continuing to engage with Tribal leaders and community 
members to fully realize the intent of this change. Tribal stakeholders 
and leaders provided USDA with valuable input on this rulemaking 
through listening sessions and through Tribal Consultation. USDA 
greatly appreciates this input and recognizes the importance of 
continuing to work together on other initiatives to improve the child 
nutrition programs for American Indian and Alaska Native children.
    Some respondents suggested that foods from other cultures be added 
to the Food Buying Guide. Many cultural foods, such as arepas and 
pupusas, are creditable in school meal programs if made with creditable 
ingredients, such as corn masa, masa harina, nixtamalized corn flour, 
and nixtamalized cornmeal. Respondents also suggested foods like curry 
dishes, which are often prepared with vegetables and meats/meat 
alternates that are already listed in the Food Buying Guide. USDA 
appreciates respondent feedback and continues to encourage program 
operators to develop diverse menus that meet the needs and preferences 
of the students they serve.
    USDA understands that this change is just one part of a larger 
effort to support the service of traditional Indigenous foods in school 
meals and remains committed to promoting traditional foodways through 
its policies and guidance. USDA's website, Serving Traditional 
Indigenous Foods in Child Nutrition Programs,\103\ hosts a collection 
of resources to support program operators working to incorporate 
traditional Indigenous foods in reimbursables meals, including fact 
sheets, recipes, crediting tip sheets, and other resources. This web 
page provides guidance on sourcing locally grown and raised traditional 
foods. USDA will continue to update this web page with additional tools 
and resources as they are developed.
---------------------------------------------------------------------------

    \103\ U.S. Department of Agriculture, Serving Traditional 
Indigenous Foods in Child Nutrition Programs. Available at: https://www.fns.usda.gov/cn/serving-traditional-indigenous-foods.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.10(c)(7) and 
220.8(c)(4) to explicitly state in regulation that traditional 
Indigenous foods, in accordance with current meal pattern requirements, 
may be served in reimbursable school meals. Schools are not required to 
change menus or operations as a result of this technical change.

Section 9: Afterschool Snacks

Current Requirement

    Afterschool snacks may be offered to children through the NSLP 
(``NSLP snacks'') or through the CACFP (``CACFP snacks''). According to 
the National School Lunch Act (NSLA, 42 U.S.C. 1766a(d)), the nutrition 
requirements for CACFP snacks \104\ also apply to NSLP snacks. However, 
current regulations at 7 CFR 210.10(o)(2) that outline the nutrition 
requirements for NSLP snacks served to K-12 children are outdated and 
do not reflect current statutory requirements. This preamble will refer 
to afterschool snacks served by schools under 7 CFR part 210 as ``NSLP 
snacks.''
---------------------------------------------------------------------------

    \104\ The nutrition requirements for snacks served through the 
CACFP are found at 7 CFR 226.20(c)(3).
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to align the nutrition requirements for NSLP snacks 
served to K-12 children (ages 6 through 18) at 7 CFR 210.10(o) with the 
CACFP snack requirements, consistent with statute. Under the proposed 
rule, the existing nutrition requirements for NSLP snacks served to 
preschoolers and infants, which already follow CACFP requirements, 
would remain in effect. The proposed rule also included a terminology 
change, to remove all references to ``meal supplements'' in 7 CFR part 
210 and replace them with the term ``afterschool snacks.''
    Additionally, in the 2020 proposed rule, Simplifying Meal Service 
and

[[Page 32008]]

Monitoring Requirements in the National School Lunch and School 
Breakfast Programs,\105\ USDA proposed to revise the definition of 
Child in 7 CFR 210.2, to clarify that children through the age of 18 
may receive NSLP snacks. The proposal to update the definition of Child 
also sought to align program regulations with statutory requirements 
(NSLA, 42 U.S.C. 1766a(b)).
---------------------------------------------------------------------------

    \105\ Simplifying Meal Service and Monitoring Requirements in 
the National School Lunch and School Breakfast Programs (85 FR 4094, 
January 23, 2020). Available at: https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school.
---------------------------------------------------------------------------

Public Comments

    USDA received 117 comments on the NSLP snacks proposal in the 2023 
rule, including 111 unique comments. Of these, 58 supported the 
proposal, 3 were opposed, and 56 were mixed. State agencies, advocacy 
groups, dietitians, and individuals submitted comments in response to 
this proposal. In addition, USDA received five comments in response to 
the 2020 proposal to revise the definition of Child; all five 
respondents supported the proposed change.
    Regarding the NSLP snacks provision in the 2023 proposed rule, one 
dietitian suggested the proposal would streamline program requirements, 
describing it as a positive change. Another proponent agreed, noting 
the change would align two similar programs without creating 
administrative burden. A third respondent affirmed the benefits of 
aligning program requirements, stating that the proposed change would 
be beneficial for multi-program sponsors, and a school district that 
currently participates in multiple child nutrition programs agreed. An 
advocacy group supported the proposal and described the CACFP meal 
pattern as ``nutritious.'' Another advocacy group supported changing 
the term ``meal supplements'' to ``afterschool snacks,'' arguing that 
``afterschool snacks'' is easier to understand. One proponent supported 
applying the product-based added sugars limits for yogurt and breakfast 
cereals to NSLP snacks; these limits are discussed further in Section 
2: Added Sugars. While not directly related to the proposal, an 
advocacy group emphasized the importance of afterschool programs in 
general, noting that children need nutritional support during the hours 
after school.
    One respondent questioned why it is necessary to align the NSLP 
snacks meal patterns with CACFP. An advocacy group opposed eliminating 
grain-based desserts from NSLP snacks, which they argued would greatly 
decrease options for schools. A few respondents raised concerns about 
specific items that are identified as grain-based desserts and are 
commonly served as afterschool snacks, such as granola and cereal bars. 
Several other respondents agreed, noting that schools could experience 
``menu fatigue'' due to limited options if grain-based desserts are no 
longer permitted as NSLP snacks. A State agency cautioned that the 
proposal to serve at least one whole grain-rich grain each day may be 
challenging for NSLP snacks operators, given that there is already a 
whole grain-rich requirement for school meals. Similarly, another State 
agency questioned how the proposed NSLP snacks whole grain-rich 
requirement would interact with the existing whole grain-rich 
requirements for school lunch and breakfast. This State agency 
maintained that while they usually support efforts to align 
regulations, some of the differences between the school meal programs 
and CACFP--such as the whole grain-rich requirements--could lead to 
confusion. An industry respondent also encouraged USDA to reconsider 
the proposed NSLP snacks whole grain-rich requirement, citing concerns 
about requirements that are ``complicated'' and ``hard to follow.''
    Other respondents requested clarification or offered suggestions. 
An advocacy group recommended that USDA reconsider the serving size 
requirements for fruits and vegetables in afterschool programs, 
especially for younger children. This respondent suggested that the 
current serving size for fruits and vegetables (\3/4\ cup) is too large 
for elementary schoolchildren. Another advocacy group encouraged USDA 
to provide ``an adequate timeline'' for implementation, while an 
industry respondent supported training and technical assistance for 
schools.

Final Rule

    This final rule updates NSLP snacks meal pattern requirements for 
K-12 children to reflect CACFP snack requirements, consistent with the 
intent of the National School Lunch Act (NSLA, 42 U.S.C. 1766a(d)). 
This change must be implemented by July 1, 2025. Program operators have 
the option, but are not required, to implement this change early. 
Additionally, this rule finalizes the provision from the 2020 proposed 
rule to revise the definition of Child. This change clarifies that 
children who are age 18 and under at the start of the school year may 
receive reimbursable NSLP snacks, consistent with statute (NSLA, 42 
U.S.C. 1766a(b)). As with the proposed rule, this final rule changes 
all regulatory references in 7 CFR part 210 from ``meal supplements'' 
to ``afterschool snacks.'' This rule does not change requirements for 
NSLP snacks served to preschoolers and infants; existing requirements 
for NSLP snacks served to preschoolers and infants remain in effect.
    In a public comment, one respondent asked why it is necessary for 
NSLP snacks meal pattern requirements to follow CACFP requirements. As 
noted in the proposed rule and above, this change is required by 
statute. According to the National School Lunch Act (NSLA, 42 U.S.C. 
1766a(d)), the nutritional requirements for snacks served through the 
CACFP also apply to afterschool snacks served by schools. Consistent 
with statutory requirements, this final rule updates regulations at 7 
CFR 210.10(o)(2) outlining the nutrition requirements for afterschool 
snacks served to K-12 children.
    Under the final rule, by July 1, 2025, NSLP snacks served to K-12 
children must include two of the following five components:

 Milk
 Meats/meat alternates
 Vegetables
 Fruits
 Grains

    The following CACFP snack requirements for children 6 years and 
older also apply to NSLP snacks served to K-12 children. These 
requirements for NSLP snacks must be implemented by July 1, 2025:
     Only one of the two components served at snack may be a 
beverage.
     Milk must be fat-free or low-fat and may be unflavored or 
flavored.
     Grain-based desserts do not count toward the grains 
requirement.
     Foods that are deep-fat fried on-site are not reimbursable 
NSLP snacks.
     As detailed in Section 2: Added Sugars, breakfast cereals 
must contain no more than 6 grams of added sugars per dry ounce.\106\
---------------------------------------------------------------------------

    \106\ While existing CACFP regulations limit breakfast cereals 
to no more than 6 grams of total sugars per dry ounce, in this final 
rule, USDA has opted to delay implementation of the breakfast 
cereals limit in NSLP snacks to SY 2025-2026, when USDA will 
implement the added sugars limit for NSLP, SBP, CACFP, and NSLP 
snacks.
---------------------------------------------------------------------------

     As detailed in Section 2: Added Sugars, yogurt must 
contain no more than 12 grams of added sugars per 6 ounces (2 grams of 
added sugars per ounce).\107\
---------------------------------------------------------------------------

    \107\ While existing CACFP regulations limit yogurt to no more 
than 23 grams of total sugars per 6 ounces, in this final rule, USDA 
has opted to delay implementation of the yogurt limit in NSLP snacks 
to SY 2025-2026, when USDA will implement the added sugars limit for 
NSLP, SBP, CACFP, and NSLP snacks.

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

[[Page 32009]]

    In the proposed rule, USDA proposed to apply the per day juice 
limit and the per day whole grain-rich requirement used in the CACFP to 
NSLP snacks served to K-12 children. USDA is not finalizing the 
proposed per day juice limit or the proposed per day whole grain-rich 
requirement for NSLP snacks served to K-12 children. Instead, this 
final rule applies the weekly juice limit and the weekly whole grain-
rich requirement used in the school meal programs to NSLP snacks. This 
change, which results in NSLP snacks that are nutritionally similar to 
snacks offered through the CACFP, is due to operational differences in 
the requirements for lunches and breakfasts served to K-12 children 
compared to preschool children. For K-12 children, the NSLP and SBP 
require that no more than half of the weekly fruit or vegetable 
offerings may be in the form of juice. As discussed in Section 4: Whole 
Grains, the whole grain-rich requirements for NSLP and SBP meals served 
to K-12 students also apply on a weekly, rather than daily, basis. As 
pointed out in public comments, implementing an additional per day 
requirement, when existing juice limitations and whole grain-rich 
requirements for NSLP and SBP already apply per week, would be 
confusing for schools that offer students school meals and NSLP snacks. 
Therefore, this final rule instead applies the following weekly 
requirements to NSLP snacks:
     No more than half of the weekly fruit or vegetable 
offerings at NSLP snacks may be in the form of juice.
     At least 80 percent of the grains offered weekly in NSLP 
snacks must be whole grain-rich, based on ounce equivalents of grains 
offered.
    USDA has determined that this approach will result in NSLP snacks 
that are nutritionally comparable to snacks offered through the CACFP, 
consistent with the intent of the statute, while avoiding operational 
complexity. For example, under this final rule, NSLP snacks may include 
juice, but will be required to offer fruits and vegetables in other 
forms. Regarding fruit juice, the final rule Child and Adult Care Food 
Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free 
Kids Act of 2010 noted that, ``The Dietary Guidelines recommends that 
at least half of fruits should come from whole fruits and found that 
children age 1 to 3 years consume the highest proportion of juice to 
whole fruits.'' \108\ The NSLP snacks juice limit finalized in this 
rulemaking incorporates Dietary Guidelines \109\ recommendations for K-
12 students and considers operational factors specific to NSLP snacks, 
as suggested by public comments. Specifically, this final rule 
considers that NSLP snacks operates alongside the school lunch and 
breakfast programs, which have weekly juice limits. Additionally, 
similar to CACFP requirements, this final rule includes a whole grain-
rich requirement for NSLP snacks, while permitting enriched grains, 
provided that the whole grain-rich threshold is met. The intent of the 
CACFP whole grain-rich requirement is to ensure that participants 
receive at least one serving of whole grain-rich grains per day, across 
all eating occasions. When considering grain offerings at school lunch 
and breakfast, USDA expects that on most school days, K-12 children 
receiving school meals and NSLP snacks would meet or exceed one whole 
grain-rich grain per day. Consistent with statutory intent, the weekly 
whole grain-rich requirement finalized in this rule improves the 
nutritional quality of NSLP snacks and will result in snacks that are 
nutritionally comparable to those offered in the CACFP. It also 
responds to public comments that raised concerns with the operational 
feasibility of implementing a per day whole grain-rich requirement in 
NSLP snacks.
---------------------------------------------------------------------------

    \108\ U.S. Department of Agriculture, Child and Adult Care Food 
Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free 
Kids Act of 2010, April 25, 2016. Available at: https://www.federalregister.gov/documents/2016/04/25/2016-09412/child-and-adult-care-food-program-meal-pattern-revisions-related-to-the-healthy-hunger-free-kids-act.
    \109\ ``Although 100% fruit juice without added sugars can be 
part of a healthy dietary pattern, it is lower in dietary fiber than 
whole fruit. Dietary fiber is a dietary component of public health 
concern. With the recognition that fruit should mostly be consumed 
in whole forms, the amount of fruit juice in the USDA Food Patterns 
ranges from 4 fluid ounces at the lower calorie levels and no more 
than 10 fluid ounces at the highest calorie levels.'' See page 87: 
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/.
---------------------------------------------------------------------------

    The changes for NSLP snacks served to K-12 children are reflected 
in the NSLP snacks meal pattern chart for K-12 children (ages 6 through 
18) now included at 7 CFR 210.10(o)(2) of this final rule. Unlike the 
NSLP and SBP, which include three separate age/grade groups (K-5, 6-8, 
and 9-12), schools offering NSLP snacks to K-12 children will follow a 
single NSLP snacks meal pattern for all children ages 6 through 18. 
Schools are encouraged to serve larger portions to older children to 
meet their increased nutritional needs.
    USDA appreciates public input regarding the serving sizes for 
fruits and vegetables in afterschool snacks. This final rule does not 
change the serving sizes for fruits and vegetables in the snack meal 
patterns. In CACFP snacks, for children ages 6 and older, the serving 
size for fruits and vegetables served as part of a snack will continue 
to be \3/4\ cup. In NSLP snacks, for children in grades K-12, the 
serving size for fruits and vegetables served as part of a snack will 
also continue to be \3/4\ cup. Schools are not required to serve fruits 
or vegetables as part of a reimbursable snack; these components are 
just two of five options available to schools. Schools offering NSLP 
snacks may choose to serve any combination of at least two of the five 
components (milk, meats/meat alternates, vegetables, fruits, and/or 
grains).
    In response to requests for clarification about the changes in this 
final rule, the following chart summarizes the prior regulatory 
requirements for NSLP snacks served to K-12 children compared to the 
requirements implemented by this final rule:

[[Page 32010]]

[GRAPHIC] [TIFF OMITTED] TR25AP24.083

    There are a few differences to point out for NSLP snacks served to 
preschoolers: \111\
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    \110\ While existing CACFP regulations include total sugars 
limits for breakfast cereals and yogurt, in this final rule, USDA 
has opted to delay implementation of these limits for NSLP snacks to 
SY 2025-2026, when USDA will implement the added sugars limit for 
NSLP, SBP, CACFP, and NSLP snacks.
    \111\ Consistent with existing policy guidance, schools may 
choose to follow the K-5 NSLP snack meal pattern when preschoolers 
and K-5 students are co-mingled at meal service. See Flexibility for 
Co-Mingled Preschool Meals: Questions and Answers, June 30, 2017. 
Available at: https://www.fns.usda.gov/cn/flexibility-co-mingled-preschool-meals-questions-and-answers.
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     Milk fat requirements and flavoring limitations: milk must 
be unflavored whole milk for children age one and must be unflavored 
low-fat or unflavored fat-free milk for children ages two through five.
     Juice limitations: full-strength juice may only be offered 
to meet the vegetable or fruit requirement at one preschool meal or 
snack per day. For example, a school serves breakfast, lunch, and NSLP 
snack to preschoolers using the preschool meal patterns for all meals 
and snacks. If the school opts to serve juice to preschoolers at 
breakfast, juice may not be served to the preschoolers during the lunch 
or NSLP snack service on the same day.
     Whole grain-rich requirement: at least one serving of 
grains per day must be whole grain-rich. For example, a school serves a 
whole grain-rich item to preschoolers at lunch and chooses to serve a 
grain at NSLP snack. In this example, the grain served for NSLP snack 
would not be required to be whole grain-rich. However, schools that 
provide NSLP snacks to preschoolers may choose to serve additional 
whole grain-rich items, beyond the one serving per day requirement.
    Accordingly, this final rule amends 7 CFR 210.2 to revise the 
definition of Child for consistency with statute. This final rule also 
amends 7 CFR 210.10(o) to align NSLP snacks meal pattern requirements 
for K-12 children with CACFP snack requirements, consistent with the 
intent of the statute. The updates to NSLP snack meal pattern 
requirements must be implemented by July 1, 2025.

[[Page 32011]]

Section 10: Substituting Vegetables for Fruits at Breakfast

Current Requirement

    Current regulations at 7 CFR 220.8(c) and (c)(2)(ii) allow schools 
to substitute vegetables for fruits at breakfast, provided that the 
first two cups per week are from specific vegetable subgroups: dark 
green, red/orange, beans and peas (legumes), or ``other'' vegetable 
subgroups.\112\ However, in recent years, through Federal 
appropriations, Congress has provided schools the option to substitute 
any vegetable--including starchy vegetables--for fruits at breakfast, 
with no vegetable subgroup requirements. This Congressional flexibility 
has been offered on a temporary basis and has left schools without 
long-term certainty regarding menu planning options. For example, in 
calendar year 2019, schools were initially granted the flexibility to 
offer any vegetables in place of fruit at breakfast from February 15 
through September 30. This flexibility was extended by Congress through 
a subsequent appropriations bill but was not granted permanently.\113\ 
Most recently, Congress provided schools the same flexibility in SY 
2022-2023 and SY 2023-2024, allowing any vegetable to credit in place 
of fruits in weekly breakfast menus.\114\
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    \112\ See: ``Vegetables'' page 31. 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/.
    \113\ See: U.S. Department of Agriculture, School Breakfast 
Program: Substitution of Vegetables for Fruit, March 18, 2019. 
Available at: https://www.fns.usda.gov/sbp/substitution-vegetables-fruit See also: U.S. Department of Agriculture, School Breakfast 
Program: Continuation of the Substitution of Vegetables for Fruit 
Flexibility, January 22, 2020. Available at: https://www.fns.usda.gov/sbp/school-breakfast-program-continuation-substitution-vegetables-fruit-flexibility.
    \114\ See: U.S. Department of Agriculture, Consolidated 
Appropriations Act, 2023: Effect on Child Nutrition Programs, March 
3, 2023. Available at: https://www.fns.usda.gov/cn/consolidated-appropriations-act-2023-effect-programs.
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Proposed Rule

    In the proposed rule, USDA acknowledged that it is confusing for 
State agencies and schools to have a requirement in regulation that is 
changed periodically through Federal appropriations. To permanently 
address this issue, USDA sought to establish a durable standard that 
continues to encourage vegetable variety at breakfast. USDA proposed to 
continue to allow schools to substitute vegetables for fruits at 
breakfast but to change the vegetable variety requirement. Under the 
proposal, schools choosing to offer vegetables in place of fruits at 
breakfast one day per school week would have the option to offer any 
vegetables, including a starchy vegetable. Schools that choose to 
substitute vegetables for fruits at breakfast on two or more days per 
school week would be required to offer at least two different vegetable 
subgroups during that weekly menu cycle. In other words, the 
requirement to offer a second, different vegetable subgroup would only 
apply in cases where schools choose to substitute vegetables for fruits 
at breakfast more than one day per school week.
    In the proposed rule, USDA proposed to change the name of the 
``legumes (beans and peas)'' vegetable subgroup to ``beans, peas, and 
lentils'' for consistency with the Dietary Guidelines. As discussed in 
Section 20: Miscellaneous Changes of this final rule, USDA is 
finalizing this proposed terminology change. Therefore, in the final 
rule portion of this section, USDA will refer to the ``beans, peas, and 
lentils'' vegetable subgroup.

Public Comments

    USDA received hundreds of comments on the proposal to change the 
vegetable variety requirement when substituting vegetables for fruits 
at breakfast. Of these, 722 supported the proposal, including 51 unique 
comments. Seventeen respondents opposed the proposal, and 89 
respondents provided mixed feedback, including 58 unique comments. 
Comments were submitted by State agencies, advocacy groups, industry 
respondents, school districts, and dietitians.
    Several respondents, including school nutrition professionals and 
State agencies, supported this change, suggesting that it would allow 
greater menu flexibility at breakfast compared to the current 
regulatory requirement. One proponent noted that offering two different 
vegetable subgroups at breakfast during a weekly menu cycle is 
achievable and provided examples of how the proposal could be 
implemented during a school week. A couple of school nutrition 
professional organizations stated that this change would simplify 
regulations for menu planners and eliminate confusion. A State agency 
agreed and mentioned that this change would help school nutrition staff 
better understand when more than one vegetable subgroup is required at 
breakfast. An advocacy group supported the proposal and emphasized the 
importance of maintaining variety in vegetable subgroups offered at 
breakfast, particularly the inclusion of non-starchy vegetables. A 
professional organization supported the proposal, arguing that 
requiring a variety of vegetable subgroups at breakfast will prevent 
schools from offering the same vegetable every day. An advocacy group 
supported the proposal, describing it as a ``durable standard that 
encourages vegetable variety.''
    Some respondents opposed the proposal, asserting that it would 
allow too much flexibility compared to the current regulatory 
requirement. One advocacy group did not agree with the proposal, 
suggesting it would allow schools to serve vegetables from a single 
subgroup up to four days per school week. For example, this respondent 
shared that if a school chose to substitute vegetables for fruits every 
day, the ``school could offer an omelet with spinach on Monday, but 
then serve hash browns, tater tots, or home fries the other four days 
of the week.'' While it is accurate that under the proposal, a school 
substituting vegetables for fruits at breakfast more than once per 
school week would only need to offer two vegetable subgroups, schools 
would still be required to meet the dietary specifications for 
calories, saturated fat, and sodium at breakfast.
    Conversely, other respondents felt that the proposal was too 
restrictive and argued that schools should be able to offer any 
vegetable in place of fruit at breakfast, without any vegetable 
subgroup requirements. Some respondents suggested that fruits would 
continue to be a popular offering at breakfast, and when opting to 
substitute vegetables, schools should have maximum flexibility in 
planning their menus. One school nutrition professional organization 
asserted that having to monitor vegetable subgroups adds complexity to 
the program. This respondent maintained that when offering vegetables, 
schools should have the option to offer any vegetable without meeting a 
variety requirement. Other food service directors agreed, suggesting 
that USDA allow any vegetable to substitute for fruit at breakfast. A 
dietitian cautioned that requiring schools to offer a variety of 
vegetable subgroups throughout the week ``may disincentivize schools 
from the offering of vegetables at breakfast.'' One industry respondent 
expressed that all vegetables should be permitted to substitute for 
fruits at breakfast without limitations or restrictions, further 
stating that this flexibility would ``address the issue long-term, 
prevent confusion, and increase overall vegetable intake within the 
program.'' An individual stated that continuing to require vegetable 
variety would result in schools offering vegetables that children do 
not like at breakfast, increasing plate waste.

[[Page 32012]]

However, this respondent also maintained that the most popular 
vegetables at breakfast are potatoes and sweet potatoes, which USDA 
notes are from two different subgroups: starchy and red/orange. 
Therefore, a school that chooses to substitute vegetables for fruits 
could meet the proposed variety requirement for the school week by 
offering these two popular vegetable options.
    Other respondents recommended alternative approaches or requested 
clarification. For example, a professional organization supported the 
proposal to require a variety of vegetables at breakfast, when schools 
choose to substitute vegetables for fruits, but suggested that USDA 
limit starchy vegetables to avoid increasing sodium. A few advocacy 
groups recommended that, in addition to the proposed variety 
requirement, USDA should also require that a single vegetable subgroup 
cannot make up more than half of the vegetable offerings at breakfast 
per week. These respondents asserted that this alternative standard 
would be less restrictive than the current regulatory standard, 
continue to encourage a variety of vegetable subgroups, and ensure that 
no single vegetable dominates SBP menus. An industry respondent opposed 
allowing any vegetables to substitute for fruits at breakfast, arguing 
that ``fruits contribute different nutrients than vegetables.'' Another 
respondent requested clarification about the requirements for vegetable 
offerings after a school meets the variety requirement. This respondent 
shared that their school usually offers vegetables as an ``extra item'' 
at breakfast and requested that this continue to be an option.
    A few respondents provided other comments on the potential impact 
of the proposal. For example, an advocacy group suggested that 
substituting vegetables for fruits could help to reduce the overall 
sugar content of school breakfasts. A State agency noted that school 
menu planners and State agency staff would need guidance, training, and 
monitoring resources if this proposal is finalized. Similarly, an 
individual suggested that USDA provide sample menus with ideas to 
incorporate a variety of vegetables into the breakfast program. One 
respondent raised concerns that the proposed change would add paperwork 
for school nutrition staff. Conversely, one State agency maintained 
that they do not expect the change to be administratively burdensome.

Final Rule

    This final rule continues to allow schools to substitute vegetables 
for fruits in the SBP and codifies the proposal to simplify the 
vegetable variety requirement. Under this final rule, schools choosing 
to offer vegetables at breakfast one day per school week have the 
option to offer any vegetable, including a starchy vegetable. Schools 
that choose to substitute vegetables for fruits at breakfast on two or 
more days per school week are required to offer vegetables from at 
least two different subgroups. The vegetable subgroups that schools may 
choose from include the following, a defined at 7 CFR 
210.10(c)(2)(iii):

 Dark green
 Red/orange
 Beans, peas, and lentils
 Starchy
 ``Other'' vegetables

    USDA acknowledges that some stakeholders preferred a different 
approach. A few respondents requested that USDA limit how often any one 
vegetable subgroup could be offered at breakfast, with some advocating 
for a specific limit on starchy vegetables. Other respondents 
encouraged USDA to remove the vegetable variety requirement altogether. 
However, USDA has determined that it is important to continue to 
encourage vegetable variety when schools choose to offer vegetables at 
breakfast. As noted in the proposed rule, while the Dietary Guidelines 
recommend increasing consumption of vegetables in general, they note 
that starchy vegetables are more frequently consumed by children and 
adolescents than the red/orange, dark green, or beans, peas, and 
lentils vegetable subgroups, underscoring the need for variety. The 
proposed requirement, finalized in this rulemaking, provides a 
straightforward and durable approach to support children consuming a 
variety of vegetables.
    USDA appreciates respondent requests for clarification about 
implementation of this provision, such as one respondent who requested 
that USDA explain what vegetable subgroup requirements would apply 
after a school offers two different subgroups at breakfast. Under this 
final rule, after a school offers vegetables from two different 
subgroups, the school can choose to offer any vegetables at breakfast--
including vegetables from a subgroup the school has already offered 
that school week. For example, a school can substitute a starchy 
vegetable for fruit at breakfast on Monday, then substitute a dark 
green vegetable for fruit at breakfast on Tuesday. The rest of the week 
the school may choose to substitute any vegetables, including a dark 
green or a starchy vegetable, for fruit at breakfast, since it would 
have met the variety requirement by Tuesday. As requested by comments, 
USDA will provide guidance and resources to support successful 
implementation of this provision and to assist schools in their efforts 
to offer a variety of vegetables as part of nutritious school 
breakfasts.
    This final rule continues to require schools opting to serve 
vegetables at breakfast to offer a variety of subgroups, and in a way 
that is less restrictive compared to the previous regulatory standard. 
Consistent with current regulations, schools are not required to offer 
vegetables at breakfast and may choose to offer only fruits at 
breakfast to meet this component requirement. Schools may also continue 
to offer vegetables at breakfast as an extra item, subject to the 
weekly dietary specifications for calories, saturated fat, sodium, and 
upon implementation, added sugars. As suggested by comments, USDA 
expects that fruit will continue to be a popular offering in 
reimbursable school breakfasts. While USDA acknowledges feedback 
received about potential administrative burden, this final requirement 
does not add any additional administrative requirements beyond menu 
documentation and production records required for Administrative 
Reviews, for schools that choose to substitute vegetables for fruits at 
breakfast.
    Accordingly, this final rule amends 7 CFR 220.8(c)(2)(i) and (ii) 
to change the vegetable variety requirement for substituting vegetables 
for fruits at breakfast. This change provides schools with more menu 
planning flexibility at breakfast when compared to the current 
regulation. Schools that are following the current regulatory 
requirement are not required to change menus or operations as a result 
of this provision. Schools that are using the Congressional flexibility 
\115\ will need to offer at least two vegetable subgroups at breakfast, 
if offering vegetables in place of fruit at breakfast more than once 
per week.
---------------------------------------------------------------------------

    \115\ See: U.S. Department of Agriculture, Consolidated 
Appropriations Act, 2023: Effect on Child Nutrition Programs, March 
3, 2023. Available at: https://www.fns.usda.gov/cn/consolidated-appropriations-act-2023-effect-programs.
---------------------------------------------------------------------------

Section 11: Nuts and Seeds

Current Requirement

    Current regulations allow nuts and seeds, and nut and seed butters, 
as a meat alternate in the child nutrition programs. In all child 
nutrition

[[Page 32013]]

programs, nut and seed butters may credit for the full meats/meat 
alternates component. However, current regulations limit the crediting 
of whole nuts and seeds (or nut and seed pieces) in some child 
nutrition programs. Current lunch and supper regulations limit nut and 
seed crediting to 50 percent of the meats/meat alternates component (7 
CFR 210.10(c)(2)(i)(B), 225.16(d)(2) and (e)(5), 226.20(a)(5)(ii) and 
(c)(2)). SBP regulations include the same limit (7 CFR 
220.8(c)(2)(i)(B)). CACFP regulations for breakfast do not explicitly 
include the 50 percent limit for nuts and seeds, but refer to USDA 
guidance, which includes the 50 percent limit (7 CFR 226.20(a)(5)(ii)). 
Snack regulations and USDA guidance on snacks do not include the 50 
percent limit; nuts and seeds may credit for the full meats/meat 
alternates component when offered as part of a snack (7 CFR 
210.10(o)(2)(ii), 225.16(e)(5), and 226.20(c)(3). For programs where 
nut and seed crediting is limited to 50 percent of the meats/meat 
alternates component, program operators choosing to serve nuts and 
seeds must serve them alongside another meat/meat alternate to fully 
meet the component requirement.

Proposed Rule

    USDA proposed to allow nuts and seeds to credit for the full meat/
meat alternate component in all child nutrition programs and meals. 
This proposal would remove the 50 percent crediting limit for nuts and 
seeds at breakfast, lunch, and supper.

Public Comments

    USDA received 389 comments on the proposed change to allow nuts and 
seeds to credit for the full meats/meat alternates component, including 
217 unique comments. Of these, 310 supported the proposal, including 
158 unique comments, 10 were opposed, and 69 were mixed, including 49 
unique comments. State agencies, advocacy groups, industry respondents, 
school districts, dietitians, and individuals provided input on this 
proposal.
    Several respondents supported the proposal, including a national 
organization representing tens of thousands of school nutrition 
professionals. One proponent applauded the proposal, noting that nuts 
and seeds are good sources of protein, vitamin E, fiber, and many 
minerals. A dietitian agreed, maintaining that nuts and seeds are 
healthy proteins that would provide variety throughout the week. An 
advocacy group added that nuts and seeds provide healthy fats. Another 
advocacy group representing the CACFP community indicated that 85 
percent of its members supported the proposal. Several respondents, 
including dietitians, school districts, and a State agency, suggested 
that this change would allow more vegan and vegetarian options in child 
nutrition program meals. An advocacy group described plant-based 
entr[eacute]es that operators could serve under this change, such as 
walnut and mushroom-based ``taco meat,'' rice pilaf with pistachios, 
and salad with sunflower seeds. In addition to plant-based options, an 
advocacy organization and a State agency noted that this proposal would 
allow more shelf-stable foods to be served in afterschool and summer 
meals. Another State agency suggested that this proposed change would 
allow program operators to offer healthier versions of popular bistro 
or snack boxes. An individual stated that the proposal would allow 
operators greater latitude to develop menus that reflect participant 
preferences; other respondents agreed, citing increased demand for 
vegetarian meals.
    One opponent argued that nuts and seeds are not adequate to meet 
the full meats/meat alternates component requirement. A few industry 
respondents also opposed the proposal, arguing that in their view, 
animal products are more nutritious than vegetarian foods. However, 
this respondent also supported greater menu planning flexibility and 
opposed ``mandatory federal limits'' in the meal patterns. Another 
respondent raised concern about oils in nuts and seeds and the 
potential for nuts and seeds to cause ``digestive distress'' among some 
participants. One respondent suggested students at their school would 
not be interested in meals that include nuts and seeds as the full 
meats/meat alternates component.
    Other respondents requested clarification or offered alternatives 
to the proposal. One respondent asked if nuts would be mandatory, 
citing food allergy concerns. Another respondent supported the change, 
but recommended capping the number of times per week operators could 
offer nuts and seeds to promote variety. One advocacy group suggested 
that USDA update its crediting guidance for nuts and seeds and nut and 
seed butters, asserting that the current requirements are too high. For 
example, this respondent argued that the current requirements result in 
sandwiches filled with an inedible amount of nut butter, making them 
difficult to chew and swallow. A State agency recommended targeting 
this provision to older children, citing concerns about choking hazards 
for young children. Similarly, an advocacy group raised concerns about 
the safety and appropriateness of offering nuts and seeds to very young 
children. This respondent also noted that nut and seed products may be 
glazed or sugar coated. An industry respondent noted that offering nuts 
may create menu planning complications due to the sodium content of 
some nuts. However, this respondent still supported the proposal. 
Another respondent requested sample menus and recipe ideas to support 
implementation of this change.

Final Rule

    This final rule codifies the proposal to allow nuts and seeds to 
credit for the full meats/meat alternates component in all child 
nutrition programs and meals, removing the 50 percent crediting limit 
for nuts and seeds at breakfast, lunch, and supper. USDA expects this 
change to reduce complexity by making the requirements consistent 
across programs and to provide more menu planning options for program 
operators.
    Child nutrition operators are not required to make any changes to 
their menus to comply with this standard. Nuts and seeds are not 
required in child nutrition program meals, but rather, continue to be 
an option for operators. When offering nuts and seeds, child nutrition 
operators may offer them to meet the full meats/meat alternates 
component but are not required to; operators may choose to offer nuts 
and seeds toward only a portion of the component, alongside another 
meat/meat alternate. Although USDA recognizes that many child nutrition 
program operators will continue to offer nuts and seeds in snacks, or 
in small amounts in meals alongside other meats/meat alternates, this 
final rule gives operators increased flexibility to offer nuts and 
seeds for the full meats/meat alternates component in all meals and 
snacks.
    USDA appreciates comments regarding the importance of variety in 
meals and snacks and expects that operators will continue to offer a 
variety of foods toward the meats/meat alternates meal component. 
Additionally, according to the Dietary Guidelines, more than half of 
Americans do not meet the recommendations for the nuts, seeds, and soy 
products subgroup.\116\ Therefore, USDA has

[[Page 32014]]

determined that it is not necessary to limit the number of times nuts 
and seeds may be served per week in order to promote variety within the 
meats/meat alternates meal component. As suggested in public comments, 
USDA expects that this change will expand options for vegetarian and 
vegan meals that include nuts, seeds, and nut and seed butters. As 
noted in the Dietary Guidelines, a healthy vegetarian dietary pattern 
can be achieved by incorporating protein foods from plants, including 
nuts and seeds; beans, peas, and lentils; tofu and other soy products; 
and whole grains.\117\
---------------------------------------------------------------------------

    \116\ See ``Protein Foods,'' page 34. 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/.
    \117\ See ``Protein Foods,'' page 33. 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/.
---------------------------------------------------------------------------

    USDA appreciates input regarding the serving sizes for nuts, seeds, 
and their butters. Many factors are considered when determining 
crediting amounts for foods in the child nutrition programs, including 
the FDA Standards of Identity, Dietary Guidelines, and the USDA Food 
Safety and Inspection Service Food Standards and Labeling Policy. 
USDA's Food Buying Guide for Child Nutrition Programs also assists in 
determining the contribution that each food makes toward meal pattern 
requirements. In this final rule and corresponding guidance, USDA will 
maintain current crediting amounts for nuts and seeds and their 
butters. In cases where an operator determines a portion is too large 
for a child or adult participant, it is recommended that nuts and seeds 
and their butters be served in combination with another meat/meat 
alternate to meet the full component requirement.
    USDA is mindful of respondent concerns about choking hazards and 
has provided guidance on reducing the risk of choking in young 
children.\118\ As noted in the proposed rule, nuts and seeds are 
generally not recommended to be served to children ages 1 to 3 because 
they present a choking hazard. If served to very young children, nuts 
and seeds should be finely minced. Program operators should also be 
aware of food allergies among participants and take the necessary steps 
to prevent exposure. Section 14: Meal Modifications provides more 
information about requirements to provide meal modifications for 
participants with disabilities, which may include food allergies. 
Finally, as noted in the proposed rule, USDA encourages program 
operators to offer nuts, seeds, and their butters in their most 
nutrient-dense form, without added sugars and salt, and schools must 
consider the contribution of these foods to the weekly limits for 
calories, saturated fat, and sodium.
---------------------------------------------------------------------------

    \118\ U.S. Department of Agriculture, Reducing the Risk of 
Choking in Young Children at Mealtimes. September 2020. Available 
at: https://www.fns.usda.gov/tn/reducing-risk-choking-young-children-mealtimes.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.10(c)(2)(iv)(B), 
220.8(c)(2)(iv)(B), 225.16(d)(2) and (e)(5), 226.20(a)(5)(ii) and 
(c)(2) to allow nuts and seeds to credit for the full meats/meat 
alternates component in all child nutrition program meals, removing the 
50 percent crediting limit for nuts and seeds at breakfast, lunch, and 
supper. This change provides child nutrition program operators more 
menu planning flexibility. Program operators are not required to change 
menus or operations as a result of this provision.

Section 12: Beans, Peas, and Lentils at Lunch

Current Requirement

    Consistent with the Dietary Guidelines, the school lunch meal 
pattern includes five vegetable subgroups: dark green, red/orange, 
beans and peas (legumes), starchy, and ``other'' vegetables. Current 
NSLP regulations at 7 CFR 210.10(c)(2)(iii) require school food 
authorities to offer vegetables from all five subgroups each school 
week. Specifically for the beans and peas (legumes) vegetable subgroup, 
schools must offer \1/2\ cup over the course of the week at lunch to 
meet the vegetable subgroup requirement.
    In addition to crediting toward the vegetable meal component, 
legumes may also credit toward the meats/meat alternates meal component 
(7 CFR 210.10(c)(2)(i)(E)). Legumes may count toward either the 
vegetable meal component or meats/meat alternates meal component, but 
not both components in the same meal (7 CFR 210.10(c)(2)(iii)). This 
limit applies when legumes are offered in a single dish. When a school 
offers legumes in two separate dishes as part of the same meal, one 
serving may count toward the vegetable meal component and one serving 
may count toward the meats/meat alternates meal component, at menu 
planners' discretion.\119\
---------------------------------------------------------------------------

    \119\ See Question 35. U.S. Department of Agriculture. Meal 
Requirements Under the National School Lunch Program and School 
Breakfast Program: Questions and Answers for Program Operators 
Updated to Support the Transitional Standards for Milk, Whole 
Grains, and Sodium Effective July 1, 2022, March 2, 2022. Available 
at: https://www.fns.usda.gov/cn/sp052022-questions-answers-program-operators.
---------------------------------------------------------------------------

Proposed Rule

    In the 2020 proposed rule, USDA proposed to allow legumes offered 
toward the meats/meat alternates meal component to also count toward 
the weekly requirement to offer \1/2\ cup of the legumes vegetable 
subgroup per week at lunch, while maintaining the total vegetables 
requirement. As with the current requirement, under the proposal, 
legumes would not count toward two meal components (vegetable component 
and meats/meat alternates component) at the same time. If a school opts 
to count legumes toward the meats/meat alternates meal component, the 
school would need to serve another vegetable to count toward the daily 
and weekly vegetable meal component requirements. However, under the 
proposal, legumes could count toward the legumes vegetable subgroup 
requirement when offered toward the meats/meat alternates meal 
component.
    Later, in the 2023 proposed rule, USDA proposed to change the name 
of the beans and peas (legumes) vegetable subgroup in school meal and 
CACFP regulations to align with the Dietary Guidelines, 2020-2025, 
which changed the terminology for the vegetable subgroup to ``beans, 
peas, and lentils.'' \120\ As discussed in Section 20: Miscellaneous 
Changes, USDA is finalizing this proposed terminology change. 
Therefore, when discussing the final standard in this section, USDA 
will use the term ``beans, peas, and lentils'' in place of ``beans and 
peas (legumes).''
---------------------------------------------------------------------------

    \120\ The Dietary Guidelines, 2020-2025, changed the terminology 
for the ``legumes (beans and peas)'' vegetable subgroup to ``beans, 
peas, and lentils.'' The foods within this vegetable subgroup did 
not change. See ``About Beans, Peas, and Lentils,'' page 31. 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/.
---------------------------------------------------------------------------

Public Comments on 2020 Proposed Rule

    USDA received 103 comments on the 2020 proposed rule about the 
proposal to allow beans and peas (legumes) offered toward the meats/
meat alternates meal component to count toward the weekly legumes 
subgroup requirement, all of which were unique comments. Of these, 61 
supported the proposal, 28 were opposed, and 14 were mixed.
    One proponent emphasized that the proposal would not reduce the 
total amount of vegetables at lunch, but would instead help schools 
offer legumes. A school district suggested that this change would allow 
more

[[Page 32015]]

menu planning flexibility. Other proponents agreed, saying this 
proposal would help schools offer legumes as part of an entr[eacute]e, 
as opposed to a side dish. Some proponents, including an advocacy 
group, maintained that legumes offered as entr[eacute]es are more 
appealing to children and help reduce food waste. For example, one 
dietitian advised that children may be more likely to consume a bean 
and cheese burrito, and less likely to consume a scoop of beans from a 
salad bar. Similarly, a school district noted that students at their 
school prefer bean dishes such as pupusas, tacos, and chilis (which 
they offer as meats/meat alternates) compared to side dishes like baked 
beans and bean salads.
    Some opponents seemed to misunderstand the proposal, assuming that 
it would lessen the overall amount of vegetables offered in school 
lunch. To be clear, schools would be required to offer a separate 
vegetable to count toward the daily and weekly vegetable component 
requirements when offering legumes as a meat/meat alternate. One State 
agency opposed the proposal, arguing that it could decrease the total 
amount of legumes offered in cases where schools are currently offering 
legumes as a meat/meat alternate in an entr[eacute]e, along with 
offering legumes in a side dish as a vegetable. A few State agencies 
expressed concern that this proposal could lead to confusion among 
schools, resulting in meal pattern errors. Several respondents, 
including State agencies and an advocacy group, emphasized that 
training and technical assistance would be critical to ensure this 
provision is implemented correctly.
    One proponent emphasized the benefits of legumes, which they 
described as versatile, inexpensive, sustainable, and nutritious. Other 
respondents, including industry respondents, agreed, suggesting legumes 
are a good source of several important nutrients, including dietary 
fiber and potassium. In general, many respondents expressed support for 
increasing consumption of legumes, which are currently underconsumed by 
children and adolescents (and all other age groups).\121\
---------------------------------------------------------------------------

    \121\ 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: https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------

Final Rule

    This final rule codifies the option for schools to count beans, 
peas, and lentils offered as a meat alternate at lunch toward the 
weekly beans, peas, and lentils vegetable subgroup requirement. Under 
this option, as with the current requirement, schools would determine 
which overall meal component the beans, peas, and lentils would count 
toward: the vegetable meal component, or the meats/meat alternates meal 
component. This new option will permit beans, peas, and lentils offered 
as a meat alternate to count toward the weekly beans, peas, and lentils 
vegetable subgroup requirement. However, beans, peas, and lentils 
offered as a meat alternate would not also count toward the daily or 
weekly overall vegetable meal component requirements; schools using 
this option would be required to offer additional vegetables to meet 
the daily and weekly vegetable meal component requirements.
    For example, a school offers a wrap with chickpeas, fresh tomatoes, 
and lettuce. In this example, the menu planner opts to count the 
chickpeas toward the meats/meat alternates meal component. In addition 
to counting toward the daily and weekly meats/meat alternates meal 
component requirements, the menu planner could also count the chickpeas 
toward meeting the weekly vegetable subgroup requirement to offer at 
least \1/2\ cup of beans, peas, and lentils; the school would not need 
to offer another vegetable from this subgroup during that week. 
However, during this meal, because the chickpeas are already counting 
toward the meats/meat alternates meal component, they cannot also count 
toward the vegetable meal component. The menu planner would instead 
count the other vegetables offered in the wrap (tomatoes and lettuce) 
toward the daily and weekly total vegetable meal component requirements 
and their respective vegetable subgroups.
    In a different example, a school offers a black bean and cheese 
quesadilla. In this example, the menu planner opts to count the cheese 
toward the meats/meat alternates meal component, and to count the black 
beans toward the vegetable meal component. In this case, the black 
beans could count toward the weekly requirement to offer \1/2\ cup of 
beans, peas, and lentils (vegetable subgroup requirement), as well as 
the daily and weekly total vegetable meal component requirements, since 
the school is offering the beans as a vegetable and not as a meat 
alternate.
    USDA is mindful of concerns, particularly from State agencies, that 
this provision could be implemented incorrectly. Public comments from 
State agencies expressed concern that when implementing this provision, 
schools may incorrectly double-count beans, peas, and lentils toward 
both the meats/meat alternates component and vegetable component in the 
same meal, resulting in a missing meal component at lunch. USDA 
recognizes the importance of providing thorough training and technical 
assistance to support implementation of this provision. Additionally, 
schools are not required to use this option and may instead continue 
with their current menu planning approach for beans, peas, and lentils. 
This new option is intended to support schools that wish to offer more 
plant-based and vegetarian options toward the meats/meat alternates 
meal component.
    Accordingly, this final rule amends 7 CFR 210.10(c)(2)(ii)(C) and 
(c)(2)(iv)(E) to allow beans, peas, and lentils offered toward the 
meats/meat alternates meal component to also count toward the 
requirement to offer \1/2\ cup of the beans, peas, and lentils 
vegetable subgroup each week. Beans, peas, and lentils offered toward 
the meats/meat alternates meal component would not count toward the 
daily or weekly overall vegetable meal component requirements. This 
change provides schools with more menu planning flexibility at lunch. 
Schools are not required to change menus or operations as a result of 
this provision.

Section 13: Competitive Foods: Bean Dip Exemption

Current Requirement

    Current regulations at 7 CFR 210.11 establish requirements for all 
foods sold in schools outside of the school meal programs. These 
requirements, known as competitive food standards, or ``Smart Snacks in 
School'' standards, help to promote healthy food choices throughout the 
school day. To comply with these standards, hereafter referred to as 
the Smart Snacks standards, foods must meet nutrition standards, 
including the standards for total fat established at 7 CFR 210.11(f).

Proposed Rule

    USDA proposed to add hummus to the list of foods exempt from the 
total fat standard in the Smart Snacks regulations. Hummus would 
continue to be subject to all other Smart Snacks standards, including 
limits for saturated fat, total sugars (by weight of product), 
calories, and sodium. This change would allow hummus, which is already 
permitted as a contributing (creditable) part of a reimbursable school 
meal, to be sold as a Smart Snack to students on campus throughout the 
school day, provided all other Smart Snacks nutrition standards are 
met.

[[Page 32016]]

    Because there is currently no FDA standard of identity for hummus, 
USDA proposed to add the following definition of ``hummus'' to the 
Smart Snacks regulations: Hummus means, for the purpose of competitive 
food standards implementation, a spread made from ground pulses (beans, 
peas, and lentils), and ground nut/seed butter (such as tahini [ground 
sesame], peanut butter, etc.) mixed with a vegetable oil (such as olive 
oil, canola oil, soybean oil, etc.), seasoning (such as salt, citric 
acid, etc.), vegetables and juice for flavor (such as olives, roasted 
pepper, garlic, lemon juice, etc.). Manufactured hummus may also 
contain certain ingredients necessary as preservatives and/or to 
maintain freshness.

Public Comments

    USDA received 200 comments on the proposal to exempt hummus from 
the Smart Snacks total fat standard, including 174 unique comments. Of 
these, 145 supported the proposal, including 119 unique comments, 1 was 
opposed, and 54 were mixed. Comments were submitted by State agencies, 
advocacy groups, industry respondents, school districts, and 
individuals.
    Respondents, including a national organization representing tens of 
thousands of school nutrition professionals, overwhelmingly supported 
the proposal. One proponent noted that hummus provides many nutrients, 
including fiber, protein, iron, and magnesium. Another proponent 
described hummus as a nutritious snack option and maintained that 
hummus is filling and high in protein. An advocacy group noted that 
hummus provides healthy fats and is often served alongside other 
nutrient-dense foods, such as vegetables or whole grains, while other 
respondents, including a State agency, maintained this proposal would 
help children incorporate more legumes into their diets. Another State 
agency asserted that this proposal would allow schools to add a healthy 
[agrave] la carte option to their cafeterias. An advocacy group 
suggested this proposal would expand [agrave] la carte options for 
vegans and vegetarians.
    A few proponents sought confirmation that the proposed exemption 
was limited to the total fat standard and that other Smart Snacks 
standards would continue to apply to hummus. For example, an advocacy 
group supported the proposal, provided that hummus would continue to be 
subject to the saturated fat standard for Smart Snacks. A State agency 
requested clarification that the Smart Snacks sodium limits would 
continue to apply to hummus. To clarify, under the proposed rule, 
hummus would continue to be subject to all other Smart Snacks 
standards, including limits for saturated fat, total sugars (by weight 
of product), calories, and sodium.
    A few respondents opposed the proposal or provided other comments. 
One opponent cited concerns about processed foods, especially those 
containing soybean or canola oil. An advocacy group did not oppose the 
change, but suggested children would not eat hummus. One respondent 
wondered if schools could serve carrots with hummus as a Smart Snacks 
compliant combination food.
    Although not directly related to the hummus proposal, other 
respondents recommended that USDA exempt other foods from the Smart 
Snacks total fat standard. For example, a few respondents encouraged 
USDA to provide an exception for avocados or guacamole. Another 
encouraged an exemption for salads with dressings, arguing that salad 
dressing has a high percentage of calories from fat, even if the 
overall calories in the salad are low. An industry respondent 
recommended that USDA exempt other condiments from Smart Snacks 
standards, suggesting that condiments promote the consumption of 
nutrient-dense foods. One school district suggested that USDA exempt 
nut butters from the total fat standard; to clarify, nuts and seeds and 
nut/seed butters are already exempt from the total fat and saturated 
fat Smart Snacks standards (7 CFR 210.11(f)(3)(ii)). This exemption 
does not apply to combination foods that contain nuts and seeds or nut/
seed butters with other ingredients, such as peanut butter and 
crackers, trail mix, or chocolate covered peanuts.
    A few respondents provided feedback on the proposed definition of 
hummus. A State agency described the proposed definition as 
``reasonable.'' Another respondent pointed out that the word ``hummus'' 
has a culturally significant meaning and suggested USDA use a different 
term, such as ``ground bean-based dip.'' An advocacy group noted that 
some types of hummus do not include ground nut or seed butters. This 
respondent noted schools may prefer to sell hummus without nut or seed 
butter as an ingredient, given the potential for nut or seed allergies. 
Because of this, the advocacy group recommended making nut or seed 
butter an optional ingredient in the definition of hummus. A school 
district requested that USDA clarify whether the definition applies 
only to hummus made from chickpeas, or alternatively, if dips that 
include other types of beans would qualify for the exemption.

Final Rule

    In this final rule, USDA is revising the terminology for this 
provision based on public comment. Instead of referring to ``hummus'' 
in regulation, this final rule will refer to ``bean dip.'' This change 
reflects input received through a public comment, which noted that the 
word ``hummus'' already has a culturally significant meaning and is 
traditionally made from chickpeas (rather than any variety of beans, 
peas, or lentils). The change also addresses a school district's 
question about whether this exemption is limited to hummus made with 
chickpeas, or if it can include products made from other types of 
beans. Based on these comments, USDA has determined a more general term 
is preferred. Therefore, this final rule adds bean dip to the list of 
foods exempt from the total fat standard in the Smart Snacks 
regulations. This exemption applies to products marketed as hummus, as 
well as bean dips made from any variety of beans, peas, or lentils. 
Bean dip would continue to be subject to the saturated fat standard for 
Smart Snacks, as well as all other Smart Snacks requirements.
    This final rule also codifies the following definition of ``bean 
dip'' in the Smart Snacks regulations. Under this definition, bean dip 
can be made from chickpeas as well as other varieties of beans, peas, 
and lentils: Bean dip means, for the purpose of competitive food 
standards, a spread made from ground pulses (beans, peas, and/or 
lentils) along with one or more of the following optional ingredients:
     Ground nut/seed butter (such as tahini [ground sesame] or 
peanut butter;
     Vegetable oil (such as olive oil, canola oil, soybean 
oil);
     Seasoning (such as salt, citric acid);
     Vegetables and juice for flavor (such as olives, roasted 
peppers, garlic, lemon juice); and
     For manufactured bean dip, ingredients necessary as 
preservatives and/or to maintain freshness.
    USDA appreciates input that stakeholders provided on the proposed 
definition. In this final rule, USDA has adjusted the definition to 
clarify that bean dip does not need to include all of the ingredients 
listed in the definition to qualify for this exemption. To qualify for 
the exemption, a bean dip must include ground pulses (beans, peas, and/
or lentils), but the remaining ingredients listed in the definition are 
not required. The final definition clarifies that these remaining 
ingredients are optional. A bean dip may include any combination of one 
or more of the remaining optional

[[Page 32017]]

ingredients listed in the definition. For example, hummus made with 
chickpeas, water, tahini, sunflower oil, lemon juice, and spices (such 
as garlic, salt, and crushed red pepper) could be sold a la carte as a 
bean dip under this final rule provided that the product as packaged 
meets the Smart Snacks standards for calories, sodium, saturated fat, 
and total sugars by weight.
    This change applies to bean dip as a standalone product; it does 
not apply to combination foods that include bean dip. For example, the 
exemption does not apply to hummus packaged with pretzels, pita, or 
other snack-type foods. Applying this exemption only to bean dip as a 
standalone product ensures that the other foods that are offered for 
sale to children at school alongside the bean dip remain subject to the 
Smart Snacks total fat standard, as well as all other Smart Snacks 
standards. Under this change, schools have the option to sell bean dip 
as a standalone product, or along with other standalone products that 
also meet the Smart Snacks standards, such as carrots or celery. As 
detailed at 7 CFR 210.11(d)(2), fresh vegetables, such as carrots and 
celery, with no added ingredients are exempt from Smart Snacks 
standards. Schools may also sell bean dip along with whole grain-rich 
pita bread, whole grain-rich crackers, or other products, provided 
those products meet the Smart Snacks standards.
    As a reminder, when a product that is exempt from the Smart Snacks 
standards is paired with another product that is exempt, both 
exemptions are maintained when the products are paired and no other 
ingredients are added. For example, the celery, peanut butter, and 
raisins included in ``ants on a log'' sold a la carte would maintain 
their respective exemptions when paired together with no other 
ingredients. Additionally, combination foods with at least \1/4\ cup of 
fruit and/or vegetable (for example, \1/4\ cup of grapes with enriched 
pretzels) can be sold to students on campus throughout the day, 
provided the combination food, as packaged, meets all Smart Snacks 
standards for calories, sodium, total fat, saturated fat, and total 
sugars (by weight of product).
    USDA appreciates public input on other foods and products that 
stakeholders would like to exempt from the Smart Snacks total fat 
standard. However, this new exemption is limited to bean dips, as 
defined at 7 CFR 210.11(a)(7). As noted, certain other products already 
have an exemption to the total fat standard, or the total fat and 
saturated fat standards, for Smart Snacks. These exemptions remain in 
place under this rule and are listed at 7 CFR 210.11(f).
    Accordingly, this final rule amends 7 CFR 210.11(a)(7) to codify 
the definition of ``bean dip'' and 7 CFR 210.11(f)(2)(ii) to exempt 
bean dip, including hummus, from the total fat standard in the Smart 
Snacks regulations. This change provides schools the option to sell 
bean dip as a Smart Snack. Schools are not required to change 
operations as result of this provision.

Section 14: Meal Modifications

Current Requirement

    Current regulations require schools, institutions, and facilities 
to make meal modifications to ensure participants with disabilities 
have an equal opportunity to participate in, and benefit from, the 
NSLP, SBP, and CACFP (7 CFR 210.10(m)(1), 220.8(m), and 226.20(g)(1)). 
The regulations allow, but do not require, schools, institutions, and 
facilities to make substitutions for ``medical or other special dietary 
needs'' that are not disabilities but that prevent a participant from 
consuming the regular reimbursable meal or snack. Under current NSLP 
and SBP regulations, substitutions for disability reasons must be 
supported by a written statement signed by a licensed physician. Under 
current CACFP regulations, the written statement must be signed by a 
licensed physician or licensed healthcare professional who is 
authorized by State law to write medical prescriptions. Under the 
current NSLP, SBP, and CACFP regulations, substitutions for ``medical 
or other special dietary needs'' must be supported by a written 
statement signed by a recognized medical authority (7 CFR 210.10(m)(2), 
220.8(m), and 226.20(g)(2)). An exception is fluid milk substitutes for 
``medical or special dietary needs'' that are not disabilities. Fluid 
milk substitutes for ``medical or special dietary needs'' must be 
supported by a written request; however, the written request may come 
from a parent or guardian or from a medical authority (7 CFR 
210.10(m)(2)(ii)(B) and 226.20(g)(3)).\122\ Fluid milk substitutes are 
discussed in greater detail in Section 3B: Fluid Milk Substitutes: 
Responses to Request for Input and Section 3C: Fluid Milk Substitutes: 
Nutrient Requirements.
---------------------------------------------------------------------------

    \122\ As noted in the proposed rule, based on statutory 
requirements, USDA regulations include several other requirements 
for fluid milk substitutions for non-disability reasons, such as 
specific nutrition standards. See page 8061: Child Nutrition 
Programs: Revisions to Meal Patterns Consistent With the 2020 
Dietary Guidelines for Americans (88 FR 8050, February 7, 2023). 
Available at: https://www.federalregister.gov/d/2023-02102/p-208.
---------------------------------------------------------------------------

    Current NSLP and SBP regulations also encourage schools to consider 
``ethnic, religious, or economic'' factors when planning or preparing 
meals, provided the variations meet the meal pattern requirements (7 
CFR 210.10(m)(3) and 220.8(m)). CACFP regulations allow institutions 
and facilities--with USDA approval--to vary meal components on an 
experimental or continuing basis, if the variations are nutritionally 
sound and necessary to meet ``ethnic, religious, economic, or 
physical'' needs (7 CFR 226.20(h)).
    In September 2016, USDA updated its school meal modification policy 
guidance \123\ to reflect passage of The Americans with Disabilities 
Act (ADA) Amendments Act of 2008. Later, in June 2017, USDA issued 
updated CACFP and SFSP meal modification policy guidance.\124\ The ADA 
Amendments Act clarified the meaning and interpretation of the ADA 
definition of ``disability'' to ensure that it would be broadly 
construed and applied without extensive analysis. Therefore, rather 
than focusing on if a child or adult participant has a disability, 
USDA's updated policy guidance stated that program operators should 
focus on working collaboratively with parents, guardians, participating 
adults, or a person acting on behalf of an adult participant to ensure 
equal opportunity to benefit from the programs. Notably, USDA's updated 
policy guidance \125\ allowed a State licensed healthcare professional, 
such as a nurse practitioner or physician's assistant, to submit a 
medical statement on behalf of a child or adult participant with a 
disability. It also clarified that program operators may accommodate 
requests related to a disability that are not supported by a medical 
statement if the requested modification can be accomplished within the 
program meal patterns and encouraged operators to use this option when 
possible. At the

[[Page 32018]]

same time, the updated policy guidance explained that program operators 
may choose to obtain a written medical statement for all disability 
meal modifications, even those that fall within the meal patterns. This 
updated guidance addressed modifications required to accommodate 
disabilities that restrict a participant's diet; it did not address 
dietary preferences or other non-disability requests, which program 
operators are encouraged--but not required--to meet.
---------------------------------------------------------------------------

    \123\ U.S. Department of Agriculture, Modifications to 
Accommodate Disabilities in the School Meal Programs, September 27, 
2016. Available at: https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-school-meal-programs.
    \124\ U.S. Department of Agriculture, Policy Memorandum on 
Modifications to Accommodate Disabilities in the Child and Adult 
Care Food Program and Summer Food Service Program, June 22, 2017. 
Available at: https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
    \125\ See Question 16. U.S. Department of Agriculture, 
Accommodating Disabilities in the School Meal Programs: Guidance and 
Questions and Answers (Q&As). April 25, 2017. Available at: https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas.
---------------------------------------------------------------------------

Proposed Rule

    In the 2020 rule, USDA proposed a variety of regulatory changes to 
reflect the updated policy guidance and to improve access to modified 
meals for participants who need them. The rule proposed to codify in 
regulation that State licensed healthcare professionals may write 
medical statements to request modifications on behalf of participants 
with disabilities in the school meal programs and CACFP. It also 
proposed to define a State licensed healthcare professional as an 
individual authorized to write medical prescriptions under State law. 
Regarding child and adult participant food preferences, the 2020 rule 
proposed to revise existing regulatory text to encourage schools, 
institutions, and facilities to meet participants' cultural, ethical, 
Tribal, or religious preferences when preparing meals in the school 
meal programs and CACFP.\126\ The rule also proposed reorganizing the 
regulatory text to distinguish between disability and non-disability 
requests more clearly. The 2020 rule did not propose changes to SFSP 
regulations.
---------------------------------------------------------------------------

    \126\ For comparison, current regulations at 7 CFR 210.10(m)(3) 
state that, ``Schools should consider ethnic and religious 
preferences when planning and preparing meals . . . Any variations 
must be consistent with the food and nutrition requirements 
specified under this section and needed to meet ethnic, religious, 
or economic needs.''
---------------------------------------------------------------------------

Public Comments on 2020 Proposed Rule

    USDA received 120 comments on the meal modifications provision of 
the 2020 proposed rule, including 83 unique comments. Of these, 69 
supported the proposed changes, including 32 unique comments, 6 were 
opposed, and 45 were mixed.
    Many respondents supported USDA's proposal to codify the existing 
policy guidance in regulation and appreciated the clarification that a 
medical statement is only required for modifications that fall outside 
the meal patterns. Respondents also emphasized the importance of 
ensuring participants who need meal modifications can easily access 
them and encouraged USDA to take steps to minimize burden for families 
in the modification request process.
    Respondents provided input on the requirement for program operators 
to obtain a medical statement when the meal modification does not meet 
the meal pattern requirements. One State agency maintained that the 
meal patterns provide enough flexibility to meet a variety of needs and 
preferences. In cases where a child or adult participant requires a 
modification outside the scope of the meal patterns, this State agency 
agreed it should be supported by formal documentation. A few other 
State agencies asserted that requiring a medical statement protects 
children's health and is not too burdensome. Another State agency 
agreed, adding that the medical statement helps program staff ensure 
that a child or adult participant's health needs are met. Similarly, an 
advocacy organization noted that child nutrition professionals work 
diligently to meet non-disability dietary requests and preferences, and 
when making a disability-related meal modification, they benefit from a 
complete written medical statement. An individual suggested that 
program operators obtain a medical statement for all meal 
modifications, regardless of whether they fall within or outside of the 
meal patterns.
    USDA requested specific input on the proposed definition of State 
licensed healthcare professional, and whether additional healthcare 
professionals should be permitted to submit a medical statement on 
behalf of a child or adult participant with a disability. Most 
respondents supported USDA's proposal to codify in regulation the 
authority allowing State licensed healthcare professionals to submit a 
medical statement on behalf of a participant with a disability. 
However, respondents shared a variety of perspectives on whether this 
authority should be expanded further. For example, one State agency did 
not support expanding the scope of who can submit a medical statement 
beyond State licensed healthcare professionals, noting that obtaining 
the medical statement is an important step in ensuring that all 
participant's needs are met with professionalism and sound medical 
guidance. An advocacy group agreed, stating that they do not support 
expanding the definition to include additional professionals; this 
respondent maintained that ``State licensed healthcare professional'' 
as defined in the proposed rule is the appropriate level of authority 
to ensure a child or adult participant's health.
    One State agency suggested that allowing registered and licensed 
dietitians to write medical statements to support meal modifications 
seems very reasonable given this is their field of expertise. A second 
State agency agreed, noting that dietitians may be more accessible to 
families, reducing the burden of obtaining the necessary documentation 
for a meal modification, while a third State agency argued that 
dietitians may be better suited than the currently approved 
professionals to determine whether a child or adult participant has a 
disability that affects their ability to consume certain foods. Another 
respondent noted that dietitians tend to be available at the district 
level working directly with schoolchildren who could benefit from 
disability-related meal modifications. However, several respondents 
noted that dietitians are not licensed in all States.
    One State agency recommended accepting medical statements from 
registered dietitians, speech pathologists, licensed clinical social 
workers, and psychologists. Another State agency agreed, noting that 
registered dietitians and speech pathologists have extensive training 
and are often consulted to develop modification requests for children 
with disabilities. Others, including school districts and individuals 
who work in schools, agreed, noting expanding the scope of who can 
submit a medical statement would facilitate access to meal 
modifications for children who need them. However, a few State agencies 
expressed concern that adding additional titles would confuse non-
disability preferential requests with medically necessary requests. 
Others agreed, cautioning against expanding this authority to 
professionals who are not trained in science-based nutrition therapy. 
One State agency noted that, within their State, at least 10 types of 
professionals already meet the definition of ``State licensed 
healthcare professionals.'' This State agency maintained that program 
operators have not struggled to obtain the required documentation 
needed to provide meal modifications for disability-related needs.

Final Rule

    This final rule codifies in regulation that State licensed 
healthcare professionals may write medical statements to request 
modifications on behalf of child or adult participants with 
disabilities in the school meal programs and CACFP. It also defines a

[[Page 32019]]

State licensed healthcare professional as an individual authorized to 
write medical prescriptions under State law. Based on public input, 
this final rule also permits registered dietitians to write medical 
statements to request modifications on behalf of child and adult 
participants with disabilities in the school meal programs and in 
CACFP. The requirement to accept medical statements from registered 
dietitians must be implemented by July 1, 2025, for NSLP and SBP, and 
by October 1, 2025, for CACFP. Schools, institutions, and facilities 
have the option, but are not required, to implement this change prior 
to the implementation date. This final rule also encourages schools, 
institutions, and facilities to meet participants' non-disability 
dietary preferences when planning and preparing school and CACFP meals.
    This final rule updates and reorganizes the regulatory text to 
distinguish between disability and non-disability requests more 
clearly. Because a dietary need that restricts a participant's diet 
could be considered a disability, this final rule removes the 
regulatory language regarding participants ``without disabilities who 
cannot consume the regular lunch or afterschool snack because of 
medical or other special dietary needs.'' \127\ This change reflects 
that participant requests for modifications or variations would fall 
into one of two categories: disability or non-disability requests. 
Additionally, in NSLP regulations, the final rule moves the regulatory 
text related to fluid milk substitutes for non-disability reasons to 
the section of the regulation that discusses fluid milk requirements (7 
CFR 210.10(d)). This change is expected to help clarify the 
requirements for fluid milk substitutions for non-disability reasons. 
The final rule also adjusts the regulatory language regarding written 
requests for fluid milk substitutes, replacing ``medical authority'' 
with ``State licensed healthcare professional or registered 
dietitian.'' This reflects the approach used for fluid milk substitutes 
in the proposed rule, which changed ``medical authority'' to ``State 
licensed healthcare professional,'' except that this final rule also 
includes registered dietitians. This supports USDA's efforts to use 
consistent terminology across program regulations. As with prior 
regulations and the proposed rule, a child or adult participant's 
parent or guardian may also submit a written request for a non-
disability fluid milk substitute in NSLP, SBP, or CACFP. Lastly, this 
final rule updates the regulatory definitions of Child in NSLP and SBP 
regulations, Child with a disability in NSLP regulations, and Persons 
with disabilities in CACFP regulations.
---------------------------------------------------------------------------

    \127\ This language reflects regulatory language formerly 
included in NSLP regulations at 7 CFR 210.10(m)(2). Similar language 
was also previously included in CACFP regulations at 7 CFR 
226.20(g)(2).
---------------------------------------------------------------------------

    Along with State licensed healthcare professionals, USDA is 
authorizing registered dietitians to submit medical statements for 
disability meal modifications in response to public comment, and due to 
the specific education and training requirements they receive. 
Registered dietitians are not required to have a State license to 
submit medical statements for meal modifications under this rule. USDA 
agrees that registered dietitians are well-positioned to determine 
specific, nutritionally sound meal modifications to support 
participants with disabilities. Registered dietitians are credentialed 
professionals, and according to the Commission on Dietetic 
Registration, registered dietitians are food and nutrition experts who 
have met the Commission on Dietetic Registration's (CDR) criteria to 
earn the registered dietitian credential.\128\ USDA acknowledges that 
other skilled professionals--such as speech therapists, psychologists, 
and social workers--have extensive knowledge in their fields and serve 
critical roles in the care of children and adults. While USDA does not 
authorize acceptance of medical statements for disability meal 
modifications beyond State licensed healthcare professionals and 
registered dietitians, USDA expects that State licensed healthcare 
professionals and registered dietitians will continue to coordinate 
with other key professionals, depending on the specific needs of 
participants with disabilities. With this rule, USDA is balancing the 
importance of improving participant access to meals that meet their 
individual needs with the importance of ensuring that schools, 
institutions, and facilities have the information they need to keep 
participants with disabilities that restrict their diet safe.
---------------------------------------------------------------------------

    \128\ The Commission on Dietetic Registration is the 
credentialing agency for the Academy of Nutrition and Dietetics. 
See: Commission on Dietetic Registration. Registered Dietitian (RD) 
or Registered Dietitian Nutritionist (RDN) Certification. Available 
at: https://www.cdrnet.org/RDN.
---------------------------------------------------------------------------

    USDA recognizes that some respondents are concerned about dietary 
requests that are not medically necessary. Schools, institutions, and 
facilities are not obligated to meet requests that are not related to a 
participant's disability. Additionally, USDA reminds schools, 
institutions, and facilities that their obligation is to provide a meal 
modification to accommodate a participant's disability, not to provide 
an exact product listed on the medical statement. For example, if a 
medical statement lists an expensive, brand-name product as a 
substitution for a participant with a disability, the school, 
institution, or facility should engage in an interactive process with 
the participant's parent or guardian to see if it would be safe and 
appropriate to provide a lower-cost, generic brand item. In most 
instances, a generic brand is sufficient, unless the brand name item is 
medically necessary. In general, if a school, institution, or facility 
has concerns about a request, they are responsible for working with the 
parent or guardian to develop an appropriate modification and, as 
applicable, suitable alternatives.
    This final rule also codifies changes related to non-disability 
meal variations in the school meal programs and CACFP. The prior NSLP 
regulations encouraged schools to consider variations for ``ethnic, 
religious, or economic reasons.'' In CACFP, the prior regulations noted 
potential variations for ``ethnic, religious, economic, or physical 
needs'' at the institution or facility level but did not encourage 
variations to meet participant preferences. This final rule changes the 
school meal and CACFP regulations to encourage program operators to 
meet child and adult participant preferences when planning and 
preparing meals. As noted in the proposed rule, meeting non-disability 
dietary preferences is encouraged, but not required. Although the 
proposed rule specifically listed several categories of non-disability 
dietary preferences, in the final rule, USDA has instead opted to refer 
to ``preferences'' generally. This is not intended to diminish the 
importance of the dietary preferences listed in the proposed rule, but 
rather, to allow the regulation to be applied broadly to the range of 
child and adult participant dietary preferences. These preferences 
include, but are not limited to, the non-disability dietary preferences 
included in the proposed rule: cultural, ethical, Tribal, and religious 
preferences. The Dietary Guidelines emphasize the importance of 
considering dietary preferences and cultural traditions and provide a 
framework to be customized to reflect the foodways of the diverse

[[Page 32020]]

cultures in the U.S.\129\ Similarly, the NSLP, SBP, and CACFP allow 
schools, institutions, and facilities to choose specific foods to offer 
at each meal, provided the meal meets the overarching meal pattern 
requirements. USDA acknowledges that, due to operational and budgetary 
constraints, program operators may not be able to meet all participant 
preferences at each meal service; however, USDA encourages program 
operators to strive for an inclusive meal service.
---------------------------------------------------------------------------

    \129\ According to page ix of the Dietary Guidelines, ``A 
healthy dietary pattern can benefit all individuals regardless of 
age, race, or ethnicity, or current health status. The Dietary 
Guidelines provides a framework intended to be customized to 
individual needs and preferences, as well as the foodways of the 
diverse cultures in the United States.'' 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.
---------------------------------------------------------------------------

    Consistent with the proposed rule, these changes do not apply to 
SFSP. USDA acknowledges that many stakeholders would like to see SFSP 
included with these changes. However, USDA instead intends to address 
SFSP meal pattern requirements separately and comprehensively in future 
rulemaking. The existing policy guidance \130\ for SFSP meal 
modifications for disabilities remains in effect.
---------------------------------------------------------------------------

    \130\ U.S. Department of Agriculture, Policy Memorandum on 
Modifications to Accommodate Disabilities in the Child and Adult 
Care Food Program and Summer Food Service Program, June 22, 2017. 
Available at:https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.2, 210.10(d)(2) and 
(m), 215.7a(b), 220.8(m), 226.2, and 226.20(g) to revise regulatory 
requirements for meal modifications for disability and non-disability 
reasons for the school meal programs and CACFP. The change requiring 
program operators to accept medical statements from registered 
dietitians must be implemented by July 1, 2025, for NSLP and SBP, and 
by October 1, 2025, for CACFP.

Section 15: Clarification on Potable Water Requirements

Current Requirement

    Current NSLP regulations at 7 CFR 210.10(a)(1)(i) require schools 
to make potable water available and accessible without restriction to 
children at no charge in the places where lunches are served during the 
meal service. When breakfast is served in the cafeteria, current SBP 
regulations at 7 CFR 220.8(a)(1) require schools to make potable water 
available and accessible without restriction to children at no charge. 
USDA issued policy guidance to support implementation of this provision 
in July 2011. In that policy guidance, USDA specified that schools must 
serve plain water to meet the potable water requirement.\131\
---------------------------------------------------------------------------

    \131\ U.S. Department of Agriculture. Water Availability During 
NSLP Meal Service. July 12, 2011. Available at: https://www.fns.usda.gov/cn/water-availability-during-nslp-meal-service.
---------------------------------------------------------------------------

Proposed Rule

    In the 2020 proposed rule, USDA proposed to allow schools to offer 
calorie-free, naturally flavored, noncarbonated water to meet the 
potable water requirement. Under the proposed rule, schools would have 
the option to continue to offer plain water to meet the potable water 
requirement but could also meet the requirement by offering naturally 
flavored water.

Public Comments on 2020 Proposed Rule

    USDA received 85 comments on the potable water provision of the 
2020 proposed rule; all were unique comments. Of these, 37 supported 
the proposal, 29 were opposed, and 19 were mixed.
    Proponents, including State agencies, school districts, and 
industry respondents, argued that offering naturally flavored water 
would increase water appeal and consumption. For example, one advocacy 
group suggested that water infused with lemons, berries, cucumbers, or 
mint would boost student water consumption. A State agency agreed that 
water with cucumber, lemon, or herbs would be a low-cost way to improve 
the palatability of water.
    A few respondents supported expanding potable water options, but 
only to water flavored with fresh or frozen fruits or vegetables. Other 
respondents argued that this provision should not permit water with 
food additives or sweeteners. Some respondents requested clarification 
on the type of water schools could offer to meet the potable water 
requirement under this provision.
    One opponent argued children's mealtime beverage options should be 
limited to plain water, milk, and limited amounts of 100 percent fruit 
or vegetable juice. Another opponent suggested consuming flavored water 
would adapt children's palates toward sweeter beverages, moving them 
away from the natural taste of water. Several respondents were opposed 
to water flavored with certain ingredients, such as ``artificial 
sweeteners'' and other additives. One advocacy group argued that the 
goal of the potable water provision is to ensure clean drinking water 
for children and maintained there is no reason to revise the current 
standard.
    Some respondents offered alternatives or suggestions for 
implementation. For example, one State agency did not oppose allowing 
water flavored with fruits, vegetables, and herbs, but emphasized this 
option should be in addition to plain potable water. This State agency 
was concerned about food allergies and indicated that maintaining plain 
potable water during mealtimes would be important for children who 
cannot consume water with fruits, vegetables, or herbs. Regarding water 
with fruits or vegetables added, a few advocacy groups suggested 
clarifying that fruits or vegetables used to flavor water may not count 
toward the meal pattern requirements. Several respondents, including 
proponents and opponents, noted the importance of following food safety 
guidelines when offering fruit- or vegetable-infused water.
    Respondents also highlighted the importance of water consumption 
and hydration. One advocacy group emphasized the importance of ensuring 
schools have safe drinking water. Another respondent suggested 
investing in basic plumbing, as well as installing water bottle filling 
stations in schools. A few advocacy organizations stated support for 
policies and efforts that expand safe water options for students.

Final Rule

    This final rule will not adopt the 2020 proposal to allow schools 
to offer calorie-free, naturally flavored, noncarbonated water to meet 
the potable water requirement. This decision is supported by public 
comments, which noted that some children may have food allergies that 
prevent them from consuming water with fruits, vegetables, or herbs. It 
is also responsive to public comments that raised concerns about other 
ingredients, such as sweeteners or additives. Under this final rule, 
schools will continue to be required to make plain potable water 
available and accessible without restriction to children at no charge 
during the meal service. To clarify this requirement, this final rule 
adds the word ``plain'' to the regulations requiring potable water to 
be offered with school meals at 7 CFR 210.10(a)(1)(i) and 220.8(a)(1). 
As with current regulations, this requirement applies in places where 
lunches are served during the meal service, including lunches served 
outside of the cafeteria. For breakfast, as with current regulations, 
this requirement applies when breakfast is served in the cafeteria.

[[Page 32021]]

    Maintaining the requirement to offer plain potable water responds 
to public comments that emphasized the importance of prioritizing 
access to plain water for children who prefer it, or who cannot consume 
water with fruits, vegetables, or herbs due to food allergies. However, 
USDA wishes to clarify that the requirement to offer plain potable 
water does not limit schools' ability to also offer potable water with 
fruits, vegetables, and herbs added, in addition to the required plain 
water. For example, a school may offer fruit-infused water at lunch 
provided children also have access to plain potable water during the 
meal service. State agencies and schools are reminded that reasonable 
costs associated with providing potable water are an allowable cost to 
the nonprofit school food service account. Additionally, based on 
public comment, USDA clarifies that fruits, vegetables, and herbs added 
to plain potable water do not count toward the meal pattern 
requirements for fruits or vegetables. Schools also are not required to 
count the negligible calorie content of water infused with fruits, 
vegetables, or herbs toward the weekly calorie limits.
    USDA also appreciates public comments regarding the importance of 
food safety when offering water with fruits, vegetables, or herbs. 
Regulations at 7 CFR 210.13(a) require school food authorities to 
ensure that food storage, preparation, and service is in accordance 
with the sanitation and health standards established under State and 
local law and regulations. School food authorities must also develop a 
written food safety program that covers any facility or part of a 
facility where food is stored, prepared, or served (7 CFR 210.13(c)). 
Schools opting to offer water with fruits, vegetables, or herbs must 
continue to follow the food safety requirements as detailed in 7 CFR 
210.13(c), as well as applicable State and local requirements.
    Accordingly, this final rule amends 7 CFR 210.10(a)(1)(i), 
210.18(h)(2)(v), and 220.8(a)(1) to add the word ``plain'' to the 
potable water requirements. Schools are not required to change menus or 
operations as a result of this technical change.

Section 16: Synthetic Trans Fats

Current Requirement

    Current regulations prohibit synthetic trans fat in the school 
lunch and school breakfast programs, and in foods sold to children on 
campus during the school day (7 CFR 210.10(f)(4), 220.8(f)(4), and 
210.11(g)). This requirement was included in Nutrition Standards in the 
National School Lunch and School Breakfast Programs \132\ and in 
National School Lunch Program and School Breakfast Program: Nutrition 
Standards for All Foods Sold in School as Required by the Healthy, 
Hunger-Free Kids Act of 2010.\133\ The synthetic trans fat prohibition 
was phased in, beginning with the NSLP, in SY 2012-2013.
---------------------------------------------------------------------------

    \132\ U.S. Department of Agriculture. 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.
    \133\ U.S. Department of Agriculture. National School Lunch 
Program and School Breakfast Program: Nutrition Standards for All 
Foods Sold in School as Required by the Healthy, Hunger-Free Kids 
Act of 2010. (81 FR 50132, July 29, 2016). Available at: https://www.federalregister.gov/documents/2016/07/29/2016-17227/national-school-lunch-program-and-school-breakfast-program-nutrition-standards-for-all-foods-sold-in.
---------------------------------------------------------------------------

    In 2015, the FDA determined that partially hydrogenated oils, the 
major source of artificial (synthetic) trans fat in the food supply, 
were no longer ``Generally Recognized as Safe,'' or GRAS. Based on this 
determination, the FDA took regulatory action to eliminate partially 
hydrogenated oils (and, therefore, synthetic trans fats) from the 
United States food supply. While the compliance date for certain uses 
was extended, the compliance date for most uses of partially 
hydrogenated oils was June 18, 2018.\134\ As of January 2020, food 
manufacturers were no longer allowed to sell foods containing trans 
fats. This FDA action effectively banned trans fats from being added to 
foods made or sold in the U.S., making additional regulations 
prohibiting synthetic trans fats in school meals unnecessary.
---------------------------------------------------------------------------

    \134\ U.S. Food and Drug Administration. Final Determination 
Regarding Partially Hydrogenated Oils (Removing Trans Fat). 
Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
---------------------------------------------------------------------------

Proposed Rule

    In the 2020 proposed rule, USDA proposed to remove the synthetic 
trans fat prohibition for NSLP, SBP, and foods sold to children on 
campus during the school day. The proposed rule stated that under this 
change, schools would not have to comply with, and State agencies would 
not have to monitor, synthetic trans fat requirements. As noted in the 
proposed rule, based on the FDA's action to remove synthetic trans fat 
from the United States food supply, USDA determined that school meal 
regulations prohibiting synthetic trans fat were no longer necessary. 
Because FDA took action to remove synthetic trans fats from the food 
supply, USDA concluded that maintaining additional regulations to 
prohibit synthetic trans fats in school meals was unnecessary.

Public Comments on 2020 Proposed Rule

    USDA received 29 comments on the synthetic trans fat provision of 
the 2020 proposed rule; all were unique comments. Of these, 14 
supported the proposal, 14 were opposed, and 1 was mixed.
    Proponents, including industry respondents and advocacy groups, 
supported removing the synthetic trans fat prohibition due to the FDA's 
actions to remove synthetic trans fat from the food supply. One 
industry respondent supported the change but questioned how trans fat 
that occurs naturally in foods would be monitored. However, another 
industry respondent noted that naturally occurring trans fat, which is 
present in some meat and dairy products, occurs at very low levels. A 
few State agencies supported the proposal. One State agency noted that 
synthetic trans fat would not be a concern in school meals after its 
elimination from the U.S. food supply. Another State agency agreed but 
noted that the FDA's compliance date could be extended; this State 
agency recommended that USDA delay implementation of its regulation 
until synthetic trans fat is fully eliminated from the food supply.
    A few opponents cited general health concerns related to synthetic 
trans fat consumption, without acknowledging the elimination of 
synthetic trans fat from the food supply. Several other opponents, 
including State agencies and Attorneys General from several States, 
cited concerns about the FDA's compliance date for the elimination of 
synthetic trans fat. One State agency provided mixed feedback, 
recommending that USDA align its final standard with the FDA's 
compliance date. Another State agency opponent cited concerns about 
synthetic trans fat in non-domestic foods.

Final Rule

    This final rule removes the dietary specification prohibiting 
synthetic trans fat in the school lunch and breakfast programs and in 
foods sold to children on campus during the school day. Under this 
change, schools will no longer need to include the synthetic trans fat 
prohibition in their procurement documentation, and State agencies will 
no longer need to review product labels or manufacturer specifications 
for compliance with the synthetic trans fat dietary specification. This 
change reduces burden by

[[Page 32022]]

eliminating a requirement that USDA determined is no longer necessary 
due to the FDA's actions to eliminate synthetic trans fat from the U.S. 
food supply.
    USDA acknowledges respondent concerns about the compliance date for 
the FDA's order eliminating synthetic trans fat from the U.S. food 
supply. While implementation of the FDA's order began in June 2018, at 
the time the 2020 proposed rule published, the compliance date for 
certain uses of partially hydrogenated oils had been extended. The 
final compliance date of January 2021, which extended the compliance 
date for specific, limited petitioned uses of partially hydrogenated 
oils, has now been in effect for several years.\135\
---------------------------------------------------------------------------

    \135\ See: ``Implementation.'' U.S. Food and Drug 
Administration. Final Determination Regarding Partially Hydrogenated 
Oils (Removing Trans Fat). Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
---------------------------------------------------------------------------

    USDA appreciates concerns one respondent raised regarding synthetic 
trans fat in non-domestic foods. The elimination of synthetic trans fat 
applies to all foods sold in the U.S food supply, including non-
domestic foods. Additionally, school food authorities are required by 
law to purchase domestic commodities or products to the maximum extent 
practicable. This rulemaking strengthens the existing Buy American 
requirements and establishes a new threshold limit for non-domestic 
food purchases (see Section 18: Buy American). Further, USDA data from 
SY 2017-2018 found that fruits and vegetables are by far the most 
common non-domestic food purchases for school food authorities.\136\ 
Therefore, USDA does not expect the limited use of non-domestic foods 
in the NSLP and SBP to result in an increase in synthetic trans fats in 
school meals.
---------------------------------------------------------------------------

    \136\ Of the 26 percent of school food authorities that reported 
using exceptions to the Buy American provision in SY 2017-2018, 93 
percent reported using them to purchase fruit, while 53 percent 
reported using them to purchase vegetables. By comparison, 18 
percent reported using them to purchase ``other'' foods, such as 
yeast, oils, and spices, and less than 10 percent each reported 
using them to purchase grains or meat/meat alternates. See Exhibit 
4: Among SFAs that Reported Using an Exception to the Buy American 
Provision, Reasons for Using an Exception and Products Purchased. 
U.S Department of Agriculture, Food and Nutrition Service, Office of 
Policy Support, Child Nutrition Program Operations Study (CN-OPS-
II): SY 2017-18. Beyler, Nick, Jim Murdoch, and Charlotte Cabili. 
Project Officer: Holly Figueroa. Alexandria, VA: November 2022.
---------------------------------------------------------------------------

    Finally, USDA acknowledges public comments about naturally 
occurring trans fat. The FDA notes that trans fat occurs naturally in 
small amounts in some meat and dairy products and is present at very 
low levels in other edible oils.\137\ In the 2012 rule, USDA clarified 
that the trans fat prohibition for school meals would not apply to 
naturally occurring trans fat present in some meat and dairy products. 
Rather, it would apply to synthetic trans fat, which the 2012 rule 
preamble noted ``are found in partially hydrogenated oils used in some 
margarines, snack foods, and prepared desserts.'' \138\ This final rule 
does not impact naturally occurring trans fat, which continue to be 
permitted in school meals.
---------------------------------------------------------------------------

    \137\ U.S. Food and Drug Administration. Final Determination 
Regarding Partially Hydrogenated Oils (Removing Trans Fat). 
Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
    \138\ U.S. Department of Agriculture. Nutrition Standards in the 
National School Lunch and School Breakfast Programs. (77 FR 4088, 
January 26, 2012). Available at: https://www.federalregister.gov/d/2012-1010/p-161.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.10(a)(3), (b)(1), 
(c), (f), (g), (h), and (j), 210.11(f) and (g)(2), 210.18(l)(2)(iii), 
and 220.8(a)(3), (b)(1), (c), (f) through (h), and (j). This change 
reduces burden on State agencies and schools. Schools are not required 
to change menus or operations as a result of this change.

Section 17: Professional Standards: Hiring Exception for Medium and 
Large Local Educational Agencies

Current Requirement

    Current regulations at 7 CFR 210.30(b)(1) describe the hiring 
standards for school nutrition program directors; the standards vary 
for directors operating in small, medium, and large local educational 
agencies. Specifically, the hiring requirements for school nutrition 
program directors in medium (2,500 to 9,999 students) and large (10,000 
or more students) local educational agencies are as follows:
     According to 7 CFR 210.30(b)(1)(ii), school nutrition 
program directors with local educational agency enrollment of 2,500 to 
9,999 students (i.e., a medium local educational agency) must have:
     A bachelor's degree, or equivalent educational experience, 
with an academic major or concentration in food and nutrition, food 
service management, dietetics, family and consumer sciences, nutrition 
education, culinary arts, business, or a related field;
     A bachelor's degree, or equivalent educational experience, 
with any academic major or area of concentration, and a State-
recognized certificate for school nutrition directors;
     A bachelor's degree in any academic major and at least two 
years of relevant experience in school nutrition programs; or
     An associate's degree, or equivalent educational 
experience, with an academic major or area of concentration in food and 
nutrition, food service management, dietetics, family and consumer 
sciences, nutrition education, culinary arts, business, or a related 
field and at least two years of relevant school nutrition program 
experience.
     According to 7 CFR 210.30(b)(1)(iii), school nutrition 
program directors with local educational agency enrollment of 10,000 or 
more students (i.e., a large local educational agency) must have:
     A bachelor's degree, or equivalent educational experience, 
with an academic major or area of concentration in food and nutrition, 
food service management, dietetics, family and consumer sciences, 
nutrition education, culinary arts, business, or a related field;
     A bachelor's degree, or equivalent educational experience, 
with any academic major or area of concentration, and a State-
recognized certificate for school nutrition directors; or
     A bachelor's degree in any major and at least five years 
of experience in management of school nutrition programs.

Proposed Rule

    USDA proposed to allow State agency discretion to approve the 
hiring of an individual to serve as a school nutrition program director 
in a medium or large local educational agency, for individuals who have 
10 or more years of school nutrition program experience but who do not 
hold a bachelor's or an associate's degree. Additionally, USDA proposed 
to clarify in regulation that State agencies may determine what counts 
as ``equivalent educational experience'' for the hiring standards. The 
proposed rule suggested that this change would allow highly experienced 
individuals to advance their careers in school food service. 
Additionally, the proposal could help to ease hiring challenges that 
USDA understands some medium and large local educational agencies 
experience.

Public Comments

    USDA received 297 comments on the proposed changes for professional 
standards including 169 unique comments. Of these, 173 supported the 
proposal, including 106 unique comments, 23 were opposed, all of which 
were unique comments, and 101 were mixed, including 40 unique comments. 
State agencies, school nutrition professionals, advocacy groups, 
industry respondents, school

[[Page 32023]]

districts, dietitians, and individuals submitted comments.
    One school district proponent described the proposal as a ``solid 
move'' that would benefit capable professionals with relevant work 
experience; this proponent affirmed such individuals are an asset to 
school nutrition programs. Another school district agreed, stating that 
the leadership and achievements of experienced candidates should be 
valued. Several respondents suggested that this proposal would allow 
knowledgeable professionals to use their skills to benefit schools and 
students, with some citing their personal experiences in the field of 
school nutrition. An individual maintained this change would be 
especially useful in rural communities with small applicant pools and 
limited ability to hire directors that meet the current education 
requirements. A school district agreed, stating that any change to 
expand the pool of candidates would be welcome.
    An individual proponent affirmed that the proposal would expand 
opportunity for school districts to hire qualified candidates from 
within their district. Similarly, an industry respondent suggested the 
proposal would allow candidates in assistant director positions to 
advance in their careers. A State agency agreed, asserting that this 
change would allow school districts to promote experienced employees 
who may be the best candidate for the job. A school district suggested 
the proposal would allow a path for growth in the field of child 
nutrition while still requiring the experience needed to do the job.
    An advocacy group cited a Congressional Research Service report 
which indicated that 94 percent of foodservice employees in U.S. 
elementary and secondary schools are women. This respondent suggested 
that the degree requirement creates an inequity to advancement in 
school nutrition, citing the cost of obtaining a degree as an example 
of a barrier. While this respondent supported the proposal, they also 
urged USDA to promote greater economic opportunity for the school 
nutrition workforce, including support for professional development. 
Similarly, a State agency acknowledged that the ability to obtain a 
degree is ``often a benefit of class and economic privilege'' and 
supported valuing experience equally. One respondent, citing their 
personal experience, described working toward an advanced degree as 
``time consuming and extremely expensive.'' This respondent also raised 
concerns about student loan debt, particularly for individuals who have 
already been working in child nutrition for decades. A school district 
agreed, stating that experience should matter just as much as a degree, 
particularly given barriers many people face in obtaining a degree.
    A national organization representing tens of thousands of school 
nutrition professionals noted that the professional standards 
requirements ensure that school nutrition directors have the education 
and skills necessary to excel in their roles and to work alongside 
principals, superintendents, and other highly credentialed individuals. 
At the same time, this organization supported allowing a minimum of 10 
years of school nutrition program experience to substitute for a degree 
due to hiring and recruitment issues that some schools are 
experiencing. Similarly, another respondent cited concerns about 
staffing and workload challenges, and suggested the proposal would 
benefit schools. An advocacy group emphasized that this proposal could 
help to address hiring issues by expanding access to promotion 
opportunities within school nutrition. A State agency agreed, 
suggesting this proposal would reward dedicated school nutrition staff 
and encourage career growth.
    Other respondents opposed the proposal. One school district argued 
that a college degree is necessary for the director position in medium 
and large districts. This respondent noted that this position requires 
knowledge of food safety, personnel management, and how to ``run a 
business.'' A few other school districts agreed, arguing higher 
education is necessary to succeed as a director in medium and large 
districts. A dietitian maintained that years of experience should not 
substitute for a degree; along with formal education, this respondent 
emphasized the importance of ongoing learning. Another opponent argued 
that the requirements placed on school nutrition professionals have not 
lessened; therefore, USDA should not provide flexibility to the hiring 
standards. A school district opponent described their education 
credentials, maintaining that their advanced degree provided them with 
skills to balance budgets and develop menus for students with special 
diets. This respondent urged USDA to uphold the current standards. 
Another school district argued that the current degree requirement 
gives school nutrition directors credibility when interacting with 
school administrators, staff, and families.
    In addition to general feedback on the proposed changes, USDA 
requested public input on the following questions:
     Is it reasonable to allow medium and large local 
educational agencies to substitute 10 years of school nutrition program 
experience for a bachelor's or an associate's degree when hiring a 
school nutrition program director?
     Should USDA also consider allowing medium and large local 
educational agencies to substitute other types of experience, such as 
experience in other food service sectors?
     How often do State agencies and school districts 
anticipate using the hiring exception?
     What strategies do local educational agencies currently 
use to recruit qualified school nutrition program directors?
    A handful of respondents provided feedback in response to the first 
question, which was about the number of years of experience that USDA 
should allow to substitute for a degree when hiring a director in a 
medium or large local educational agency. A dietitian argued that 10 
years of real-world experience would provide an individual the 
knowledge needed to succeed as a director. An advocacy group asserted 
that a school nutrition professional with 10 years of experience would 
have participated in many hours of training, in addition to their 
regular job duties, making them ``very capable of doing an excellent 
job as a director.'' An industry respondent agreed that 10 or more 
years of child nutrition program experience ``is a suitable alternative 
to traditional education.'' One respondent suggested 10 years of 
experience is appropriate for large school districts and suggested 5 to 
7 years could be appropriate for medium school districts, provided the 
candidate had experience with procurement, menu planning, and personnel 
management. A few school districts suggested that USDA consider 
lowering the number of years from 10 to 5 years for medium and large 
school districts. A State agency agreed, maintaining that allowing 5 
years of school nutrition program experience to substitute for a degree 
would further ease hiring challenges faced by some school districts. 
Another State agency suggested that it would be reasonable to require 4 
years of child nutrition program experience, rather than 10 years, 
given it typically takes about 4 years to complete a bachelor's degree. 
A school district respondent did not provide a specific number of years 
of experience needed, but emphasized the value of institutional 
knowledge, which they conveyed is the result of ``many years spent 
doing the work.''
    Respondents also addressed whether USDA should allow other types of 
experience, such as experience in other

[[Page 32024]]

food service sectors, to substitute for a degree. One school district 
encouraged USDA to allow other food service experience, including 
military food service, to count when assessing a candidate's potential. 
A State agency agreed, provided the work experience includes duties 
similar in size and scope to the role of a school nutrition program 
director. This State agency noted that other food service sectors may 
provide similar experience in procurement, menu planning, ordering, 
receiving, invoicing, and inventory control. Conversely, given the 
specific requirements of school meal programs, a national organization 
representing tens of thousands of school nutrition professionals 
maintained that only school nutrition program experience should be 
allowed to substitute for a degree. This organization further suggested 
that this experience should include managing or supervising personnel 
and overseeing school meal programs at the district level for multiple 
sites. A school district proponent also emphasized the importance of 
child nutrition program experience, as opposed to commercial food 
service experience. A State agency agreed, noting that other sectors 
are not as regulated as USDA food service programs, which may make the 
transition from another area of food service to school nutrition 
difficult for a new director.
    A few respondents provided input on the third question regarding 
how often the proposed hiring exception would be used. One State agency 
noted that they receive at least two requests for hiring exceptions for 
medium and large school districts per year; this respondent supported 
the proposal. A second State agency proponent expected to receive about 
four requests for an exception per year, with the potential for more, 
should the proposal be finalized. A third State agency did not directly 
address the question, but shared one real-world example where this 
exception could have been used to hire a highly qualified candidate 
with 20 years of experience in their State. This State agency supported 
the proposal, describing it as ``reasonable.'' On the other hand, one 
State agency did not anticipate the flexibility would be used often, 
suggesting that medium and large school districts would opt to require 
a bachelor's or an associate's degree for director positions.
    A few respondents shared strategies that school districts use to 
recruit qualified school nutrition program directors. One State agency 
noted that school districts recruit qualified candidates through 
advertisements on websites, search engines, and social media, and by 
holding job fairs. Another State agency suggested that partnerships 
with career tech centers and college programs have helped some school 
districts, while acknowledging that recruiting directors can be a 
challenge. One respondent stated that school districts post position 
openings through ``normal recruitment channels.''
    Some respondents offered alternatives to the proposal, or suggested 
changes. For example, a few respondents recommended that USDA outline 
specific types of experience candidates must have to qualify for the 
hiring exception, in addition to their years of experience. A school 
district emphasized the importance of understanding finances, which 
they argued is crucial for making strategic decisions. An advocacy 
group suggested that USDA require experience in a supervisory role and 
in counting, claiming, menu development, and other areas of program 
administration. This respondent also suggested requiring a certain 
number of technical school or college credits to qualify for this 
exception. A dietitian recommended requiring management skills and 
emphasized the importance of ensuring directors can interpret 
regulations, plan menus, oversee a budget, and coach staff. Another 
respondent suggested that USDA specify whether the years of experience 
would need to be consecutive for a candidate to qualify for the 
exception.
    Other respondents suggested that USDA narrow the scope of the 
proposed change or add other requirements to the process. One 
respondent recommended that medium and large school districts should 
only be allowed to use this exception if they implement a plan for the 
candidate to earn a degree. A State agency recommended limiting this 
exception to instances when there is documentation that no candidates 
who applied for the position met the education criteria. An advocacy 
group recommended the exception only be allowed in rural areas, arguing 
that urban school districts can find candidates that meet the existing 
standards. However, another advocacy group acknowledged differences in 
local needs based on school district size and urbanicity, and suggested 
State agencies should have discretion to approve the hiring of a 
director based on specific local context. Going further, an individual 
recommended that it should be the school district's decision whether to 
use the hiring exception, presumably as opposed to requiring State 
agency approval. Another respondent suggested eliminating the education 
requirements entirely, arguing if someone can do the job based on their 
skills, they should be eligible. A form letter campaign supported the 
proposal but suggested that USDA seek guidance from school nutrition 
professionals to make sure the change is implemented in a way that is 
``as helpful as possible.''
    A few respondents provided feedback on school nutrition hiring and 
training requirements in general. One advocacy group acknowledged the 
importance of the professional standards requirements, noting that they 
ensure school nutrition program personnel have the knowledge and skills 
they need to operate the programs successfully. This respondent 
suggested that the professional standards have supported improvements 
in meal quality in their State and nationwide. A few respondents noted 
the value of mentoring for a successful career in school nutrition. 
Another emphasized the important role of their State agency, adding 
that they feel well supported by their State agency in their continued 
learning.

Final Rule

    This final rule codifies the proposal to allow State agency 
discretion to approve the hiring of an individual to serve as a school 
nutrition program director in a medium or large local educational 
agency, for individuals who have 10 or more years of school nutrition 
program experience but who do not hold a bachelor's or an associate's 
degree. Directors hired under this exception must have a high school 
diploma or GED. USDA expects that this change will allow highly 
experienced and qualified individuals to advance their careers in 
school nutrition. This change is also expected to ease hiring 
challenges which USDA understands are experienced by some medium and 
large local educational agencies.
    USDA appreciates public input on the number of years of experience, 
and the type of experience, that should qualify a candidate for this 
exception. Several respondents acknowledged the importance of 
experience in school nutrition, including experience developing menus 
that meet the regulatory meal pattern requirements, counting and 
claiming meals, and maintaining compliance with other program rules. 
USDA agrees with public comments that suggested a candidate should have 
school nutrition experience to qualify for this exception. Further, 
USDA agrees with public comments stating that 10 years is an 
appropriate amount of time to substitute for a degree. The candidate's 
experience does not need to be in consecutive years; a

[[Page 32025]]

candidate only needs to accrue a total of 10 years of experience in 
school nutrition to qualify for this exception.
    This final rule also codifies in regulation that State agencies may 
determine what counts as ``equivalent educational experience'' for the 
hiring standards. USDA provided the following examples in the proposed 
rule, which were supported by a national organization representing tens 
of thousands of school nutrition professionals:
     If a candidate for a director position in a medium local 
educational agency does not have an associate's degree, but has more 
than 60 college credits in a relevant field, the State agency would 
have the discretion to approve the hiring of that candidate.
     If a candidate for a director position in a large local 
educational agency does not have a bachelor's degree, but has an 
associate's degree, is a School Nutrition Specialist certified by the 
School Nutrition Association, and is a Nutrition and Dietetics 
Technician, Registered (NDTR) \139\ certified by the Academy of 
Nutrition and Dietetics, then the State agency has the discretion to 
approve the hiring of that candidate.
---------------------------------------------------------------------------

    \139\ Nutrition and dietetics technicians, registered (NDTRs) 
are educated and trained at the technical level of nutrition and 
dietetics practice for the delivery of safe, culturally competent, 
quality food and nutrition services. See: Academy of Nutrition and 
Dietetics, What is a Nutrition and Dietetics Technician Registered? 
Available at: https://www.eatrightpro.org/about-us/what-is-an-rdn-and-dtr/what-is-a-nutrition-and-dietetics-technician-registered.
---------------------------------------------------------------------------

    These are just two possible scenarios where a State agency may 
choose to count a candidate's experience toward the hiring requirements 
as ``equivalent educational experience.'' State agencies have 
discretion to determine that other types of experience should count 
toward ``equivalent educational experience'' on case-by-case basis.
    As described in 7 CFR 210.15(b)(7), school food authorities must 
maintain records to demonstrate compliance with the professional 
standards for school nutrition program directors, managers, and 
personnel, including the hiring requirements. This final rule does not 
change the overall recordkeeping requirements for professional 
standards. However, to demonstrate compliance when using this 
exception, the school food authority and State agency would need to 
maintain documentation of the exception. For example, the school food 
authority and State agency could maintain documentation of the school 
food authority's request for the exception, and documentation of the 
State agency's approval. Similarly, this final rule does not change the 
Administrative Review requirements for professional standards. 
Professional standards will continue to be evaluated as part of the 
General Areas of Review, as described at 7 CFR 210.18(h)(2)(ix).
    USDA appreciates respondent feedback about the importance of 
ensuring school nutrition program directors in medium and large 
districts have the skills needed to succeed in their jobs. Respondents 
emphasized that obtaining a bachelor's or an associate's degree is an 
effective way for candidates to demonstrate they have the knowledge and 
skills needed to succeed as a director, which respondents stressed can 
be a challenging position. Directors hired under this provision are 
encouraged, but not required, to work toward a degree in food and 
nutrition, food service management, dietetics, family and consumer 
sciences, nutrition education, culinary arts, business, or a related 
field. While USDA acknowledges the value in obtaining a degree, USDA 
has determined that hands-on experience in the school nutrition 
programs is also an effective way for candidates to demonstrate they 
have the knowledge and skills needed to succeed as a director in a 
medium or large school district. USDA also recognizes the importance of 
providing an alternative option for school nutrition professionals to 
advance in their careers, even if they are unable to obtain a degree 
due to financial or other barriers. This exception is available at the 
discretion of the State agency. School districts and State agencies are 
encouraged to work together to apply this exception on case-by-case 
basis as needed and as deemed appropriate.
    In public comments, respondents recommended that USDA require 
candidates to meet specific criteria, in addition to the candidate's 
years of experience, to qualify for this exception. In this final rule, 
USDA will not require candidates to meet specific criteria, beyond the 
required years of experience. However, school districts and State 
agencies may choose to require candidates to have specific types of 
experience in order to qualify under this exception. For example, a 
school district could require candidates to have experience managing a 
budget or supervising staff to qualify for the director position. As 
this exception is available at the State agency's discretion, State 
agencies may also apply additional criteria when using the exception.
    As proposed, this final rule removes the existing table at 7 CFR 
210.30(b)(2), which provided a summary of the school nutrition program 
director hiring standards. USDA determined the amount of information 
within the table was excessive, and instead of maintaining the table in 
regulations, will develop a more user-friendly table summarizing the 
hiring standards to be posted on the USDA Food and Nutrition Service 
public website. The hiring standards remain in regulation at 7 CFR 
210.30(b)(1); therefore, this change--which only removes the summary 
table--is not substantive. In this final rule, USDA also made 
corrections to current paragraph leveling in 7 CFR 210.30 and reprinted 
the table summarizing required annual training with non-substantive 
changes to improve usability.
    USDA acknowledges and appreciates public comments from school 
nutrition directors and staff regarding the importance of their job 
duties. School nutrition professionals are incredibly hardworking 
individuals who care deeply about the children they serve. Many school 
nutrition professionals, some of whom have worked in school nutrition 
for decades, submitted public comments describing the great pride they 
take in their work. USDA also recognizes that school nutrition 
professionals have faced many challenges in their work over the past 
several years, including serving as essential, front-line workers 
during the COVID-19 pandemic and more recently, responding to supply 
chain disruptions and high food costs. USDA remains committed to 
supporting school nutrition professionals throughout implementation of 
this final rule and beyond. Additionally, Team Nutrition's Professional 
Standards Resources website \140\ provides a variety of resources which 
support school nutrition professionals with implementing and meeting 
the professional standards requirements. These include the Guide to 
Professional Standards, the Professional Standards Training Database, 
and the Professional Standards Training Tracker Tool, among others. 
More information regarding USDA's efforts to support schools and school 
nutrition professionals may be found in Section 1: Background of this 
preamble.
---------------------------------------------------------------------------

    \140\ U.S. Department of Agriculture. Professional Standards. 
Available at: https://www.fns.usda.gov/cn/professional-standards.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.30(b)(1) to allow 
State agency discretion to approve the hiring of an individual to serve 
as a school nutrition program director in a medium or large local 
educational agency, for individuals who have 10 years or more of school 
nutrition program experience but who do not hold a bachelor's or an

[[Page 32026]]

associate's degree. At the discretion of the State agency, this change 
provides local educational agencies an optional hiring flexibility. 
Schools are not required to change menus or operations as a result of 
this provision.

Section 18: Buy American

    This section includes the following sub-sections:
     Section 18A describes limited exceptions to the Buy 
American requirement.
     Section 18B details Buy American exception documentation 
and reporting requirements.
     Section 18C explains procurement procedures.
     Section 18D defines the term ``substantially'' as it 
relates to the Buy American requirements.
     Section 18E clarifies requirements for harvested farmed 
and wild caught fish.

Section 18A: Limited Exceptions to the Buy American Requirement

Current Requirement

    The Buy American provision established under the National School 
Lunch Act (NSLA, 42 U.S.C. 1760(n)) and program regulations at 7 CFR 
210.21(d)(2) and 220.16(d)(2) requires school food authorities to 
purchase domestic commodities or products ``to the maximum extent 
practicable.'' This provision supports the mission of the child 
nutrition programs, which is to serve children nutritious meals and 
support American agriculture. Through policy guidance, USDA has 
detailed limited exceptions to the Buy American requirements.\141\ 
These limited exceptions apply when the purchase of domestic foods is 
not practicable and include the following:
---------------------------------------------------------------------------

    \141\ U.S. Department of Agriculture. SP 38-2017 Compliance with 
and Enforcement of the Buy American Provision in the NSLP. June 
2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
---------------------------------------------------------------------------

     The product is not produced or manufactured in the U.S. in 
sufficient and reasonably available quantities of a satisfactory 
quality; or
     Competitive bids reveal the costs of a U.S. product are 
significantly higher than the non-domestic product.
    Currently, no regulations establish a definition of ``significantly 
higher'' when using an exception to the Buy American provision. The 
school food authority is responsible for determining the dollar amount 
or percentage which constitutes a significantly higher cost for a 
domestic product, thus permitting the use of an exception.
    The Buy American provision is applicable to school food authorities 
located in the 48 contiguous United States. Although Alaska, Hawaii, 
and the U.S. territories are exempt from the Buy American provision, 
school food authorities in Hawaii and Puerto Rico are required to 
purchase food products produced in their respective State or territory 
in sufficient quantities, as determined by the school food authority, 
to meet school meal program needs, per 7 CFR 210.21(d)(3) and 42 U.S.C. 
1760(n)(4)).

Proposed Rule

    USDA proposed to strengthen the Buy American requirement by 
maintaining the current limited exceptions and establishing a new 
threshold limit for school food authorities that use these exceptions. 
USDA proposed to codify the following exceptions, previously issued 
through guidance, for when non-domestic foods may be purchased by 
school food authorities:
     The product is not produced or manufactured in the U.S. in 
sufficient and reasonably available quantities of a satisfactory 
quality; or
     Competitive bids reveal the costs of a U.S. product are 
significantly higher than the non-domestic product.
    Additionally, USDA proposed to institute a 5 percent ceiling on the 
non-domestic commercial foods a school food authority may purchase per 
school year, based on total commercial food costs. Section 12 of the 
NSLA (42 U.S.C. 1760) mandates that the Secretary require school food 
authorities to ``purchase, to the maximum extent practicable, domestic 
commodities or products.'' Under the statute, this requirement applies 
to school food authorities located in the contiguous United States and 
a purchase of a domestic commodity or product for the school lunch or 
school breakfast program. By proposing a cap on when school food 
authorities may procure non-domestic commercial foods, USDA is 
balancing the statutory mandate to Buy American and the intent of the 
Buy American provision at Section 2 of the NSLA (42 U.S.C. 1751) to ``. 
. . encourage the domestic consumption of nutritious agricultural 
commodities and other foods . . .'' while also recognizing that there 
are times when purchasing domestic foods is not practicable for 
schools. Finally, consistent with current guidance, USDA proposed to 
clarify in regulation that school food authorities have discretion to 
determine whether an exception applies.

Public Comments

    USDA received 138 comments on the proposed limited exceptions to 
the Buy American requirement. Of these, 20 supported the proposed 
standard, 72 were opposed, and 46 were mixed. Most respondents 
supported codifying the current exceptions for products not available 
domestically, but some requested that the significant cost differential 
be defined or eliminated. Most expressed concern that the 5 percent cap 
on non-domestic commercial foods is too restrictive.
Importance of Supporting American Agriculture
    Several respondents, including, State agencies, Federal elected 
officials, advocacy groups, and individuals, supported strengthening 
the Buy American provision. One respondent stated that the proposal 
supports local farmers and the economy while also protecting the 
environment by reducing emissions from transporting food long 
distances. Another respondent affirmed that strengthening the Buy 
American provision would increase sourcing from local and regional 
producers. Other respondents supported the proposal for economic 
reasons. For example, a trade association stated that the 5 percent cap 
would disincentivize the use of U.S. taxpayer dollars to purchase non-
domestic food products. An advocacy group stated that strengthening the 
provision would maximize public dollars spent on our nation's food and 
farm economy.
Implementation Challenges: Loss of Variety for Students
    Some respondents opposed the proposal, including professional 
organizations, school districts, dietitians, and individuals. One 
professional organization asserted that the proposed 5 percent of total 
costs per school year ceiling on non-domestic commercial foods is too 
restrictive and could limit students' access to a wide variety of fresh 
and appealing produce throughout the school year. This respondent 
mentioned that the proposed changes may place a significant 
administrative burden on school meal programs and complicate an already 
complex, challenging procurement process. A State agency agreed, adding 
that the proposed changes may cause unnecessary stress for menu 
planners. This State agency expressed that the proposal would affect 
States located in the north that have shorter growing seasons.
Implementation Challenges: Supply Chain Issues
    Some respondents discussed the current supply chain issues, stating 
that the proposal would make the procurement process more difficult and

[[Page 32027]]

burdensome while decreasing variety for students. One respondent 
asserted that the droughts in California, damaged grain crops in the 
Midwest, and unseasonably cold weather in the south have impacted the 
availability of domestic food. A respondent mentioned that the Buy 
American provision states that schools should purchase domestic 
products to the maximum extent ``practicable,'' but with the current 
supply chain challenges, purchasing 95 percent of food domestically is 
not ``practicable.'' One respondent stated that the 5 percent ceiling 
is not reasonable while another questioned if the 5 percent ceiling is 
possible to maintain.
Implementation Challenges: Administrative Burden
    Some respondents raised concerns about tracking non-domestic costs. 
A State agency asserted that maintaining documentation would be 
burdensome for schools and State agencies, especially for small school 
food authorities with limited staff. Another State agency agreed with 
the intent of the proposal but argued that the proposed limitation of 5 
percent on non-domestic food purchases, is too restrictive. This State 
agency said as proposed, this provision will place significant 
administrative burden on school meal operators and State agencies, 
adding to an already complex, challenging Federal procurement process.
Alternative Approaches Suggested by Comments
    A few trade associations appreciated USDA's efforts to strengthen 
the Buy American provision for school nutrition programs and supported 
the proposed 5 percent of total costs cap for non-domestic food. 
However, these respondents suggested that USDA apply the 5 percent cap 
to categories and/or product type,\142\ established by the USDA's 
Agricultural Marketing Service, instead of total commercial food 
purchases. Some of these trade associations suggested that USDA 
eliminate or define the ``significant cost differential'' exception, 
stating that it is a vague standard with inconsistent application and 
that it creates a loophole for distributors.
---------------------------------------------------------------------------

    \142\ AMS used the following list as product types: Beef, 
Cotton, Dairy Products, Eggs, Fish & Seafood, Flowers & Plants, 
Fruits, Goat, Grain, Lamb, Nuts, Pork, Organic, Poultry, Rabbits, 
Rice & Pulses, Vegetables, Specialty Products, Tobacco, Wool & 
Mohair. Also available at: https://www.ams.usda.gov/grades-standards.
---------------------------------------------------------------------------

    In addition to general feedback on the proposal, USDA requested 
input on the following questions:
     Is the proposed 5 percent of total costs per school year 
ceiling on the non-domestic commercial foods a school food authority 
may purchase a reasonable ceiling, or should a different percentage be 
used? Would the 5 percent cap encourage those school food authorities 
using exceptions to reduce the amount of non-domestic products they 
purchase? USDA requests that respondents include justification and 
reasons behind their response.
     How feasible would tracking and documenting the total 
amount of non-domestic food purchases be? Would purchasing and record 
keeping processes need to be altered? Does the documentation of total 
non-domestic purchases alleviate burden associated with documenting 
each limited exception that is used? And any additional information 
about how school food authorities would document the total amount of 
non-domestic food purchases versus total annual food purchases.
    About 34 respondents provided input on the first question, 
regarding the 5 percent of total costs per school year ceiling on non-
domestic purchasing. Many respondents stated the proposed 5 percent cap 
is too restrictive and that the data used to determine the proposed cap 
is outdated. One respondent stated that there have been supply chain 
disruptions, inflation, increased procurement challenges due to natural 
disasters that impact school meal programs, and a pandemic. Due to 
these factors, this respondent did not feel the proposed 5 percent cap 
accurately represents the current procurement landscape and does not 
apply lessons learned from the pandemic. This respondent also stated 
that the 5 percent cap is significantly lower than current procurement 
trends. In developing this new requirement, FNS used the most recent 
data available which was collected in SY 2017-2018 and showed school 
food authorities spent, on average, 8.5 percent of food costs on non-
domestic products.
    An individual asserted that the proposed 5 percent cap would 
increase burden for school nutrition professionals. State agencies 
suggested that the 5 percent cap would make procurement more cumbersome 
and add complexity to the oversight process. State agency respondents 
also argued that mandating a 5 percent cap on non-domestic food 
products would create additional burden on schools.
    Some respondents provided alternatives to the 5 percent cap for 
non-domestic food purchases. For example, one individual suggested a 10 
percent cap. A State agency recommended an exemption list for items 
like bananas, in addition to the 5 percent cap. Another State agency 
urged USDA to require school food authorities to develop a system to 
track non-domestic food products but noted that this would take time. 
This State agency suggested that USDA create an exception list of food 
products that have been determined as not produced in the U.S. in 
sufficient and reasonable available commercial quantities of 
satisfactory quality, such as canned oranges, canned pineapple, and 
fresh bananas.
    Regarding the second question, 27 respondents provided input on the 
feasibility of the proposed recordkeeping process. Some respondents 
affirmed that tracking non-domestic food purchases would be an 
administrative burden. One individual argued that the recordkeeping 
process would contribute to administrative burden because items would 
need separate invoices for a successful audit and tracking purposes. 
Another respondent asserted maintaining documentation would require 
vendors and distributors to provide information about non-domestic food 
products.
    A State agency agreed, asserting that school food authorities do 
not have adequate time and resources for additional paperwork.

Final Rule

    This final rule changes the current limited exceptions for the Buy 
American provision and codifies the two limited circumstances when 
school food authorities may purchase non-domestic foods:
    1. The product is listed on the Federal Acquisitions Regulations 
(FAR) 25.104 Nonavailable articles list and/or is not produced or 
manufactured in the U.S. in sufficient and reasonably available 
quantities of a satisfactory quality; or
    2. Competitive bids reveal the costs of a U.S. product are 
significantly higher than the non-domestic product.
    USDA notes that when a school food authority purchases a food item 
found on the FAR 25.104 Nonavailable articles list, no further 
documentation is required. The Nonavailable articles list is a list of 
items that have been deemed not available in the U.S. and excepted from 
the Buy American statute.\143\ The

[[Page 32028]]

list of items on the FAR 25.104 is non exhaustive. Food products from 
the FAR Nonavailable articles list must be included in the calculation 
of the non-domestic cap.
---------------------------------------------------------------------------

    \143\ 41 U.S.C chapter 83 is the Buy American statute that 
requires public agencies to procure articles, materials, and 
supplies that were mined, produced, or manufactured in the United 
States, substantially all from domestic components. Available at: 
https://www.acquisition.gov/far/part-25.
---------------------------------------------------------------------------

    This rulemaking does not define ``significantly higher'' for the 
definition exception and instead USDA maintains that the definition of 
``significantly higher'' is at the discretion of school food 
authorities. Allowing school food authority discretion acknowledges 
that school food authorities of various sizes have different resources, 
and reflects the appropriate flexibility needed for purchases given the 
diverse needs of school food authorities.
    USDA acknowledges that some respondents requested such an exemption 
list of non-domestic foods to help reduce administrative burden 
associated with documenting the two exceptions to the Buy American 
requirements. USDA expects that the inclusion of the FAR 25.104 
Nonavailable articles will reduce administrative burden. This list is 
readily available, reliable, and widely used by the other Federal 
agencies. Additionally, the inclusion of this list will improve 
procurement practices, support American agriculture, and contribute 
toward increased Program integrity.
    In response to public comments that suggested a 5 percent cap is 
too restrictive under current procurement conditions and that FNS data 
is not representative of current procurement practices, USDA will use a 
phased approach to gradually reach the proposed 5 percent of total 
costs per school year cap on non-domestic food purchases. USDA agrees 
with other respondents who were in support of the 5 percent cap, 
because it will help support American agriculture and industry, and 
will use 5 percent as the final cap on non-domestic food costs. The cap 
on non-domestic food costs is for total commercial food costs 
purchased. Through a phased-in implementation, USDA intends to help 
schools, State agencies, and other stakeholders adjust to the new 
requirement and achieve compliance with the Buy American provision. 
This phased-in approach will allow schools to gradually adjust to the 
new requirement and will allow USDA to continue to collect data on use 
of the Buy American exceptions.
    In the proposed rule, USDA asked respondents if the proposed 5 
percent cap was too restrictive or if a different cap should be used. 
Through public comment a 10 percent cap was suggested as an alternative 
to the 5 percent cap. Using this suggestion, the phased approach will 
be as follows:
     Beginning in SY 2025-2026, the non-domestic food cost cap 
will be 10 percent.
     Beginning in SY 2028-2029, the non-domestic food cost cap 
will be 8 percent.
     Beginning in SY 2031-2032, the non-domestic food cost cap 
will be 5 percent.
    School food authorities will be required to maintain documentation 
supporting the use of an exception, except when the item is found on 
the FAR 25.104 Nonavailable articles list. USDA recognizes that the 
addition of the cap may pose issues for some school food authorities as 
it requires additional burden to assess the amount of non-domestic 
purchases. However, USDA notes that the Buy American requirement is 
mandated by the statute as discussed above. It is also an important 
aspect of the school meal programs to ``. . . encourage the domestic 
consumption of nutritious agricultural commodities and other foods . . 
.'' (42 U.S.C. 1751). In response to comments, USDA has carefully 
considered how that requirement can be appropriately balanced with when 
the purchase of domestic foods is not practicable for schools as well 
as the associated administrative burden. There still may be individual 
school food authorities that cannot meet the threshold. USDA will work 
in concert with State agencies during implementation to provide needed 
technical assistance and guidance, and if appropriate, an accommodation 
for temporary relief from the requirement as the State agency works 
with the school food authority on increasing their domestic purchases.
    Compliance with the non-domestic cap will be reviewed by State 
agencies in line with 7 CFR 210.18 during the school meal programs 
Administrative Review process. Regulations were recently updated 
through the Child Nutrition Program Integrity final rule \144\ to 
specifically add the Buy American requirements in 7 CFR 210.21(d) and 
220.16(d) to the General Areas of Review requirements. The process for 
the General Areas during the review is first technical assistance, 
followed by corrective action if there are instances of non-compliance. 
The review of the Buy American requirement will follow this process 
that is already familiar to State agencies and schools and is meant to 
simplify administrative burden in response to comments. This process 
will allow school food authorities and States to work together to 
achieve compliance. As indicated in the proposed rule, the primary 
mechanism for collecting information on the Buy American provision is 
via the Child Nutrition Operations (CN-OPS) study. USDA notes that the 
CN-OPS study showed that the vast majority of exceptions were used for 
fruit and technical assistance may center around helping school food 
authorities to better monitor their contracts and/or track their non-
domestic expenses; an example of corrective action is to modify future 
menus to replace non-domestic items with domestic items. There may be 
circumstances outside of the school food authority's control that make 
compliance with the Buy American requirements challenging. These could 
include nationwide supply chain issues or another pandemic, and USDA 
will provide guidance and direction with respect to the Buy American 
requirements.
---------------------------------------------------------------------------

    \144\ Child Nutrition Program Integrity (88 FR 162, August 23, 
2023). Available at https://www.govinfo.gov/content/pkg/FR-2023-02-07/pdf/2023-02102.pdf.
---------------------------------------------------------------------------

    In addition, in response to respondent concerns about burden, USDA 
notes that in accordance with a recent Government Accountability Office 
audit,\145\ USDA is committed to creating a template for documenting 
Buy American exceptions. USDA plans to provide guidance and technical 
assistance to support school food authority implementation of the cap 
and tracking of expenses.
---------------------------------------------------------------------------

    \145\ U.S Government Accountability Office. USDA Could Enhance 
Implementation of the Buy American Provision. April 2023. Available 
at: https://www.gao.gov/assets/gao-23-105884.pdf.
---------------------------------------------------------------------------

    Lastly in response to comments suggesting that the non-domestic 
expenditure cap be based on food categories (e.g., fruit, etc.) already 
established by the USDA's Agriculture Marketing Service instead of 
total commercial food purchases, USDA has concluded that this would 
only add administrative burden for school food authorities. Given the 
feedback received in public comments, in this final rule USDA is 
clarifying that the cap will apply to total commercial food costs.
    Accordingly, this final rule amends 7 CFR 210.21(d)(5) and 
220.16(d)(5) to codify the two limited circumstances when school food 
authorities may purchase non-domestic foods and to gradually phase in a 
cap on when school food authorities may procure non-domestic food. 
Additionally, this final rule amends 7 CFR 210.21(d)(8) and 
220.16(d)(8) to codify an

[[Page 32029]]

accommodation for schools unable to meet the phased-in cap.

Section 18B: Exception Documentation and Reporting Requirements

Current Requirement

    Currently, the primary mechanism for collecting information on the 
Buy American provision is via the CN-OPS study. The CN-OPS study is a 
multi-year study that provides USDA with current information on various 
aspects of school meals programs operations. USDA uses results from 
this study to help inform program management practices and policy 
development.
    School food authorities document each use of an exception to the 
Buy American requirements.\146\ However, there is no requirement for 
school food authorities to request a waiver from the State agency or 
USDA in order to purchase a non-domestic food product.
---------------------------------------------------------------------------

    \146\ U.S. Department of Agriculture, Compliance with and 
Enforcement of the Buy American Provision in the National School 
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to require school food authorities to maintain 
documentation supporting use of one of the two limited exceptions and 
documentation to demonstrate that no more than 5 percent of total 
annual commercial food costs per school year are for non-domestic 
foods.

Public Comments

    USDA received 24 comments on the proposed Buy American exception 
documentation and reporting requirements. Of these, one supported the 
proposal, 21 were opposed, and two were mixed. State agencies, trade 
agencies, vendors, school food authorities, and individuals submitted 
comments on the proposal.
    The supportive comment came from a trade agency. This respondent 
stated that they agreed with the proposal and that the proposal would 
make food distributors more aware of the Buy American requirements.
    Many respondents stated that requiring school food authorities to 
maintain documentation showing no more than 5 percent of their total 
annual commercial food costs were spent on non-domestic foods will add 
to administrative burden and stated that school food authorities are 
already overwhelmed with documentation requirements. Another respondent 
asserted that the documentation requirement would require time-
consuming activities such as reviewing all invoices to determine the 
total costs and non-domestic costs and calculating the percentage on a 
regular basis, on top of all the other program requirements that must 
be monitored.
    Respondents stated that they did not see any issues with the 
current Buy American requirements and suggested USDA leave the 
provision as is. One State agency claimed that the Buy American 
provision has not been excessively abused and that adding an additional 
layer of recordkeeping to an already overwhelmed staff would create 
unnecessary burden. One respondent mentioned that their vendor is 
already documenting their use of the Buy American exception, and it 
only would add another layer of tracking for them. Another respondent 
recommended that USDA leave the provision as is, asserting that schools 
understand the importance of limiting non-domestic purchases to special 
circumstances.
    Some respondents provided alternatives or asked for clarification 
about the proposed documentation and tracking requirements. A State 
agency noted that while the provision is not difficult to comprehend, 
if USDA has specific expectations for how tracking and maintenance of 
documentation should occur, those expectations should be established in 
the rulemaking. This respondent also suggested that USDA should include 
what fiscal action, if any, would result if those expectations are not 
met. Another respondent suggested that schools could meet the 
documentation and tracking requirements, but it would be difficult.
    USDA requested public input on the following questions related to 
the proposals for exception documentation and reporting requirements of 
the Buy American requirements:
     Is the proposal to require school food authorities to 
maintain documentation showing that no more than 5 percent of their 
total commercial food costs per school year were for non-domestic foods 
feasible and is the regulatory language clear enough for school food 
authorities and State agencies to implement and follow?
     For oversight purposes, USDA is considering requiring 
school food authorities to maintain an attestation statement to attest 
that any non-domestic foods purchased under the 5 percent cap met one 
of the two limited exceptions. Would this approach assist school food 
authorities with the burden associated with documentation requirements? 
Does it help ensure that any non-domestic food purchase under the 5 
percent cap was only a result of utilizing one of the current limited 
exceptions that USDA proposes to codify through this rulemaking?
    About five respondents provided input on the first question about 
the feasibility of the proposal for documentation showing 5 percent cap 
for non-domestic food purchases. One respondent stated that the 
proposed rule would increase administrative burden by imposing 
additional tracking requirements for school food authorities. This 
respondent suggested that the documentation requirements would 
especially impact large school districts.
    Regarding the second question, nine respondents, including State 
agencies, trade associations, and individuals provided input on the 
possible approach of maintaining an attestation statement that non-
domestic food purchases were less than the 5 percent cap. Respondents 
provided mixed feedback on this question. A State agency and a few 
individuals expressed that the attestation would help with the 
documentation burden. However, some respondents were confused on who 
the attestation statement is intended for, and whether school food 
authorities or distributors would attest that any non-domestic foods 
purchased under the 5 percent cap met one of the two limited 
exceptions.
    A State agency suggested that the use of an attestation statement, 
without backup documentation, is not an effective method of ensuring 
compliance. This State agency argued that the attestation statement 
would create additional paperwork that would not actually impact school 
food authorities' purchasing practices. Lastly, one respondent stated 
the attestation seems unnecessary.

Final Rule

    This final rule requires school food authorities to maintain 
documentation to demonstrate use of one of the two limited exceptions 
and institutes a phased-in cap on non-domestic food purchases. In 
response to public comments, USDA is exempting products found on the 
FAR 25.104 Nonavailable articles list from the documentation 
requirement. School food authorities may use this list to deem a 
product as not domestically available without further documentation. 
Food products that are found on the FAR Nonavailable articles list will 
be included in the non-domestic expenditure ceiling calculation. While 
this was not included in the proposed rule, USDA requested public 
comment on the feasibility of a non-domestic cap, tracking of 
purchases, and documentation requirements, and gave notice to the

[[Page 32030]]

public that changes may be incorporated into a final rule based on 
public input. Public comments requested that USDA develop a non-
domestic product exception list. Allowing the exception of products on 
the FAR 25.104 Nonavailable articles list from the Buy American 
documentation requirement addresses these public comments and reduces 
administrative burden for schools.
    In addition, as stated above, in response to respondent concerns 
about burden, USDA notes that in accordance with a recent Government 
Accountability Office audit, USDA Could Enhance Implementation of the 
Buy American Provision (April 2023),\147\ USDA has committed to 
creating a template for documenting Buy American exceptions. USDA will 
also explore any technical assistance resources that will better help 
school food authorities document non-domestic food purchases.
---------------------------------------------------------------------------

    \147\ U.S Government Accountability Office. USDA Could Enhance 
Implementation of the Buy American Provision. April 2023. Available 
at: https://www.gao.gov/assets/gao-23-105884.pdf.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.21(d)(5)(iii) and 
220.16(d)(5)(iii) to require school food authorities to maintain 
documentation to demonstrate use of one of the two limited exceptions 
to the Buy American provision.

Section 18C: Procurement Procedures

Current Requirement

    School lunch and breakfast program regulations do not currently 
require school food authorities to include any Buy American provisions 
in required documented procurement procedures,\148\ solicitations, or 
contracts. However, USDA guidance has strongly advised school food 
authorities to include safeguards in solicitation and contract language 
to ensure Buy American requirements are followed.\149\ Additionally, 
school food authorities are required to monitor solicitation and 
contract language to ensure that contractors perform in accordance with 
the terms, conditions, and specifications of their contracts or 
purchase orders (2 CFR 200.318(b)).\150\
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    \148\ School food authorities are required to have documented 
procurement procedures, as per 2 CFR 200.318(a).
    \149\ U.S. Department of Agriculture, Compliance with and 
Enforcement of the Buy American Provision in the National School 
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
    \150\ ``Monitoring is also accomplished by reviewing products 
and delivery invoices or receipts to ensure the domestic food that 
was solicited and awarded is the food that is received. SFAs also 
need to conduct a periodic review of storage facilities, freezers, 
refrigerators, dry storage, and warehouses to ensure the products 
received are the ones solicited, and awarded, and comply with the 
Buy American provision.'' U.S. Department of Agriculture, Compliance 
with and Enforcement of the Buy American Provision in the National 
School Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to require school food authorities to include the Buy 
American provision in documented procurement procedures, solicitations, 
and contracts for foods and food products procured using informal and 
formal procurement methods, and in awarded contracts.

Public Comments

    USDA received 30 comments on the proposals to include Buy American 
requirements in procurement procedures. Of these, 14 supported the 
proposal and 16 were mixed. State agencies, school districts, advocacy 
groups, trade associations, dietitians, and individuals submitted 
comments on the proposal.
    Many respondents supported the proposal requiring school food 
authorities to include the Buy American provision in documented 
procurement procedures, solicitations, and contracts. Some respondents 
affirmed that they have these proposed requirements in their 
procurement procedures.
    Other respondents provided mixed feedback. While these respondents 
agreed with the proposed provision, some suggested expanding it. For 
example, one respondent suggested that solicitations and contracts 
require distributors to attest to the domestic or non-domestic origin 
of delivered products. A professional organization stated that all 
Federal nutrition assistance programs should adopt the Buy American 
provision. Another respondent suggested that USDA bar distributors who 
substitute non-domestic products for domestic products without 
justification.

Final Rule

    USDA agrees with respondents that Buy American provisions should be 
included in all procurement procedures. This final rule requires school 
food authorities to include the Buy American requirements in documented 
procurement procedures, solicitations, and contracts for foods and food 
products procured for school breakfast and school lunch programs using 
informal and formal procurement methods, and in awarded contracts.
    State agencies are required to verify the inclusion of this 
language when conducting Procurement oversight and Administrative 
Reviews. USDA expects that this requirement will ensure vendors are 
aware of expectations at all stages of the procurement process, in 
addition to providing contractual protection for school food 
authorities if vendors fail to meet Buy American obligations.
    Accordingly, this final rule amends 7 CFR 210.21(d)(3) and 
220.16(d)(3) to require that Buy American provisions be included in all 
procurement procedures.

Section 18D: Definition of ``Substantially''

Current Requirement

    The National School Lunch Act (NSLA, 42 U.S.C. 1760(n)(1)(B)) 
defines a domestic product as ``[a] food product that is processed in 
the United States substantially using agricultural commodities that are 
produced in the United States.'' The current regulatory language at 7 
CFR 210.21(d)(1) and 220.16(d)(1) is identical to the statutory 
language. To satisfy the statutory and regulatory requirements, food 
products purchased for child nutrition programs must be processed in 
the United States.\151\ However, USDA understands that the meaning of 
the term ``substantially'' is not clearly defined.
---------------------------------------------------------------------------

    \151\ See also section 4207(b) of the Agriculture Improvement 
Act of 2018, Public Law 115-334 (42 U.S.C. 1760).
---------------------------------------------------------------------------

    Congressional report language accompanying the original legislation 
noted that ``substantially means over 51 percent from American 
products.'' \152\ Therefore, USDA has stated in guidance that 
``substantially'' means over 51 percent of the final processed product 
(by weight or volume) consists of agriculture commodities that were 
grown domestically, as determined by the school food authority.\153\ 
The guidance also states that products ``from Guam, American Samoa, 
Virgin Islands, Puerto Rico, and the Northern Mariana Islands are 
considered domestic products under this provision as these products are 
from the territories of the U.S.''
---------------------------------------------------------------------------

    \152\ U.S. House of Representatives. Child Nutrition and WIC 
Reauthorization Amendments of 1998--House Report 105-633. July 20, 
1998. Available at: https://www.govinfo.gov/content/pkg/CRPT-105hrpt633/html/CRPT-105hrpt633.htm.
    \153\ U.S. Department of Agriculture, Compliance with and 
Enforcement of the Buy American Provision in the National School 
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to codify a definition of the statutory phrase 
``substantially using agriculture commodities.'' The

[[Page 32031]]

definition, which USDA would codify at 7 CFR 210.21(d)(1)(ii)(A) and 
220.16(d)(1)(ii)(A), was proposed as follows: ``Substantially using 
agriculture commodities that are produced in the United States'' means 
over 51 percent of a food product must consist of agricultural 
commodities that were grown domestically.

Public Comments

    USDA received 11 comments on the proposal to codify the definition 
of ``substantially using agriculture commodities.'' Of these, six 
supported the proposal, one was opposed, and four were mixed. State 
agencies, advocacy groups, professional organizations, dietitians, and 
individuals submitted comments on the proposal.
    Most respondents supported the clarification. Some respondents 
stated that the proposed clarification made sense to them, and that the 
language provided was welcome. One State agency already requires school 
food authorities to use this definition based on its use in USDA 
guidance.
    One State agency opposed the proposal and stated that the proposed 
definition does not meet the intent of other Federal agencies' Buy 
American requirements as it allows for up to 49 percent of a food 
product to be non-domestic.
    Mixed comments were generally supportive but wanted USDA to go 
further than the proposed 51 percent threshold. A few respondents 
wanted the threshold to be raised higher, potentially up to 80 or 90 
percent instead of 51 percent. One respondent wanted USDA to clarify 
that domestic water does not count toward the 51 percent. Another 
respondent requested that USDA consider that the term ``substantial'' 
is relative, open to interpretation, and should be further clarified in 
order to achieve desired results.
    USDA requested public input on the following question related to 
codifying the definition of substantially:
     Does the proposed definition of ``substantially using 
agriculture commodities that are produced in the United States'' meet 
the intent of the Buy American requirements? If not, what other 
suggestions do stakeholders have for the definition?
    Approximately three respondents provided input on this question 
regarding the intent of the Buy American requirements. Respondents 
generally agreed that the proposed definition is consistent with the 
intent of Buy American requirements.

Final Rule

    This final rule codifies the proposed definition of 
``substantially'' in the Buy American provision at 7 CFR 
210.21(d)(1)(ii)(A) and 220.16(d)(1)(ii)(A). Consistent with the 
proposed rule, this definition reads as follows: ``Substantially using 
agriculture commodities that are produced in the United States'' means 
over 51 percent of a food product must consist of agricultural 
commodities that were grown domestically.
    Although USDA acknowledges that some respondents recommended a 
threshold higher than 51 percent, this definition reflects the 
Congressional report language and USDA guidance as mentioned above. 
USDA agrees with supportive respondents and codifies the proposed 
definition for ``substantially'' in this final rule.
    Accordingly, this final rule amends 7 CFR 210.21(d)(1)(ii) and 
220.16(d)(1)(ii) to codify the definition of ``substantially'' in the 
Buy American regulations.

Section 18E: Clarification of Requirements for Harvested Farmed and 
Wild Caught Fish

Current Requirement

    Current regulations do not include language specific to the 
applicability of the Buy American requirements to fish or fish 
products. However, in 2019, section 4207 of the Agriculture Improvement 
Act of 2018 (Pub. L. 115-334) clarified the Buy American provision 
applies to fish harvested ``within the Exclusive Economic Zone of the 
United States, as described in Presidential Proclamation 5030 (48 FR 
10605; March 10, 1983), or . . . by a United States flagged vessel.'' 
USDA published Buy American and the Agricultural Improvement Act of 
2018 \154\ and explained how to treat harvested fish under the Buy 
American requirement. The guidance stated that, ``[i]n order to be 
compliant:
---------------------------------------------------------------------------

    \154\ U.S. Department of Agriculture. Buy American and the 
Agriculture Improvement Act of 2018. August 15, 2019. Available at: 
https://www.fns.usda.gov/cn/buy-american-and-agriculture-improvement-act.
---------------------------------------------------------------------------

     Farmed fish must be harvested within the United States or 
any territory or possession of the United States.
     Wild caught fish must be harvested within the Exclusive 
Economic Zone of the United States or by a United States flagged 
vessel.''
    Prior to the publication of the 2019 guidance, the Buy American 
provision applied to fish as it would to any other food.

Proposed Rule

    USDA proposed to add language to the regulations to codify how Buy 
American applies to fish and fish products in the school lunch and 
breakfast programs. The proposed change would be consistent with 
current statutory requirements and existing USDA policy guidance. USDA 
expects that codifying these existing requirements in regulation will 
improve awareness of, and compliance with, program requirements.

Public Comments

    USDA received 11 comments on the proposal to codify how Buy 
American applies to fish and fish products in the school lunch and 
breakfast programs. Of these, four supported the proposed standards and 
seven were mixed. State agencies, professional associations, industry 
respondents, and dietitians submitted comments on the proposal.
    Proponents generally stated the clarification is acceptable to add 
to the regulations. Other respondents appreciated the clarification on 
what criteria must be met for fish and fish products to meet the Buy 
American requirements but were concerned with the challenges of 
identifying whether fish were harvested within the Exclusive Economic 
Zone and/or whether the vessel used to catch the fish was a ``United 
States flagged vessel.''

Final Rule

    USDA agrees with respondents that making the proposed change will 
improve the understanding of program requirements. This final rule 
codifies language in regulations regarding how the Buy American 
requirements apply to fish and fish products offered in the school 
lunch and breakfast programs. In order to be compliant with Buy 
American requirements, under this final rule:
     Farmed fish must be harvested within the United States or 
any territory or possession of the United States.
     Wild caught fish must be harvested within the Exclusive 
Economic Zone of the United States or by a United States flagged 
vessel.
    This change is consistent with current statutory requirements and 
existing USDA policy guidance.
    Accordingly, this final rule amends 7 CFR 210.21(d)(6) and 
220.16(d)(6) to codify language regarding how the Buy American 
requirements apply to fish and fish products offered in the school 
lunch and breakfast programs.

[[Page 32032]]

Section 19: Geographic Preference

Current Requirement

    Section 4302 of the Food, Conservation, and Energy Act of 2008 
(Pub. L. 110-246) \155\ amended the National School Lunch Act to direct 
the Secretary of Agriculture to encourage institutions operating child 
nutrition programs to purchase unprocessed locally grown and locally 
raised agricultural products. Effective October 1, 2008, institutions 
receiving funds through the child nutrition programs could apply an 
optional geographic preference for the procurement of unprocessed 
locally grown or locally raised agricultural products. This provision 
applies to institutions operating any of the child nutrition programs, 
including the NSLP, SMP, SBP, Fresh Fruit and Vegetable Program, SFSP, 
and CACFP, as well as to purchases made for these programs by the USDA 
Department of Defense Fresh Fruit and Vegetable Program. The provision 
also applies to State agencies making purchases on behalf of any of the 
aforementioned child nutrition program operators.
---------------------------------------------------------------------------

    \155\ The Food, Conservation, and Energy Act of 2008 (Pub. L. 
110-246). June 18, 2008. Available at: https://www.congress.gov/110/plaws/publ246/PLAW-110publ246.pdf.
---------------------------------------------------------------------------

    The Geographic Preference Option for the Procurement of Unprocessed 
Agricultural Products in Child Nutrition Programs final rule (75 FR 
20316, April 4, 2011) \156\ went into effect on May 23, 2011. This 
final rule incorporated the geographic preference option in program 
regulations and defined the term ``unprocessed locally grown or locally 
raised agricultural products,'' which does allow for some minimal 
processing, food handling, and preservation techniques as defined, to 
facilitate implementation by institutions operating the child nutrition 
programs. Language included in that final rule indicates that ``local'' 
cannot be used as a procurement specification (a written description of 
the product or service that the vendor must meet to be considered 
responsive and responsible).
---------------------------------------------------------------------------

    \156\ Geographic Preference Option for the Procurement of 
Unprocessed Agricultural Products in Child Nutrition Programs (75 FR 
20316, April 4, 2011). Available at: https://www.federalregister.gov/documents/2011/04/22/2011-9843/geographic-preference-option-for-the-procurement-of-unprocessed-agricultural-products-in-child.
---------------------------------------------------------------------------

    Currently, Federal regulations do not prescribe the way that 
geographic preference should be applied, or how much preference can be 
given to local products. Federal regulations also do not define 
``local'' for the purpose of procuring local foods for use in child 
nutrition programs. However, producers located in a specified 
geographic area can be provided additional points or credit calculated 
during a program operator's evaluation of proposals or bids received in 
response to a solicitation.\157\
---------------------------------------------------------------------------

    \157\ U.S. Department of Agriculture. Procurement Geographic 
Preference Q&As. February 1, 2011. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas.
---------------------------------------------------------------------------

Proposed Rule

    USDA proposed to expand the geographic preference option by 
allowing locally grown, raised, or caught as procurement specifications 
for unprocessed or minimally processed food items in the child 
nutrition programs. This proposal intended to increase the procurement 
of local foods by child nutrition program operators and ease 
procurement challenges for operators interested in sourcing food from 
local producers.

Public Comments

    USDA received 389 comments referencing the geographic preference 
proposal, including 176 unique comments. Of the total comments, 351 
supported the proposal, including 138 unique comments, one was opposed, 
and 37 were mixed. State agencies, school nutrition professionals, 
advocacy groups, industry respondents, dietitians, elected officials, 
and individuals submitted comments. Many respondents mentioned that the 
geographic preference proposal would support local producers. Comments 
from advocacy groups, State agencies, and an academic institution 
indicated that the proposal would allow local producers to be more 
competitive and encourage local and smaller-scale producers to submit 
bids to sell local foods to child nutrition program operators. A State 
agency noted that the proposal would help larger school districts and 
cooperatives of smaller school districts coordinate with small-scale 
producers to procure locally without relying on the micro-purchase 
procurement method. A couple of advocacy groups and an individual 
mentioned that the proposal would be economically beneficial for local 
producers and communities. Similarly, a professional association 
suggested the proposal would stimulate local economies and keep money 
in school communities. Advocacy groups, State agencies, a professional 
organization, and a dietitian expressed that the proposal would make it 
easier for child nutrition program operators to procure local products 
for their meal programs and reduce administrative barriers.
    Some respondents shared other potential benefits of the proposal, 
such as mitigating supply chain disruptions and fostering healthier 
communities. A food manufacturer and an advocacy group stated that they 
received positive feedback from child nutrition operators about the 
proposal. A few advocacy groups also noted that schools that had pre-
existing relationships with local suppliers reported fewer supply chain 
disruptions and more reliable product availability during the COVID-19 
pandemic. One advocacy group and one individual suggested that the 
proposal would support more nutritious school meals and foster 
connections between students, local producers, and communities. An 
individual stated that local food procurement can also support schools 
offering foods that better reflect students' food cultures and 
heritage. A group of Federal elected officials stated that the proposal 
would improve domestic sourcing, relieve procurement challenges, and 
allow more local foods to be incorporated into school meals.
    Some respondents provided mixed feedback on the proposal or 
provided suggestions. One State agency noted that the proposal would 
make it easier for program operators to procure local foods but 
recommended that USDA provide guidance on using a definition of 
``local'' that does not reduce the number of potential vendors that can 
respond to a solicitation to a non-competitive level. This respondent 
also recommended guidance to support program operators in conducting 
market research and requests for information prior to issuing 
solicitations. A State agency affirmed this guidance would help program 
operators avoid delays in awarding contracts to qualified local vendors 
and prevent program operators from having to reissue solicitations. 
Another State agency requested that USDA define the term ``local'' in a 
way that clarifies ``local'' should be based on the source of the 
agricultural product being procured rather than the bidder's location. 
Multiple advocacy groups and an individual recommended that the 
proposed geographic preference language be updated to allow for, or 
encourage, other procurement specifications to support varied 
procurement values such as organic certification, independent animal 
welfare certifications, products produced by historically underserved 
producers, and more.
    Several respondents supported the proposal but raised concerns 
about the potential increased costs of local foods. An individual noted 
that the cost of procuring local foods could be a barrier for smaller 
schools and school districts. Another respondent warned that a lack of 
locally produced food in their area,

[[Page 32033]]

and food safety concerns, would hinder local purchasing. An advocacy 
group stated that vendors should be required to substantiate that local 
production requirements are met and recommended that cost incentives be 
provided to support procurement of local food products. A union, school 
food service staff member, and an advocacy group agreed that additional 
funding is needed to make local procurement viable for many program 
operators, especially in certain States and territories. A State agency 
and an advocacy group expressed concerns about cost as a barrier to 
local procurement among CACFP operators.
    USDA requested public input on the following questions related to 
the geographic preference expansion proposal:
     Do respondents agree that this approach would ease 
procurement challenges for child nutrition program operators interested 
in sourcing food from local producers?
     Do respondents agree that this approach would encourage 
smaller-scale producers to submit bids to sell local foods to child 
nutrition programs?
    Several respondents provided input on the first question, regarding 
whether the proposed approach would ease procurement challenges. Many 
respondents indicated that expanding school food authorities' options 
for geographic preference in procurement would streamline local 
purchasing for child nutrition program operators. Advocacy groups, a 
trade association, and a State agency noted that the proposal would 
remove uncertainties and facilitate clear, predictable procurement 
processes. An academic institution stated that not all program 
operators are willing and able to apply geographic preference in its 
current form due to its complexity. This respondent noted that the 
proposal would ease procurement challenges and enable program operators 
to spend less time on the administrative aspects of the procurement 
process and more time incorporating local foods into program menus. A 
professional organization and dietitian expressed that the proposal 
would help program operators that operate smaller-scale programs more 
easily purchase local products.
    In response to the second question, many respondents agreed that 
the proposed approach would encourage smaller-scale producers to submit 
bids to sell foods to child nutrition programs. Respondents emphasized 
that expanding geographic preference options would make local and 
small-scale producers more competitive in the bidding process. A couple 
of advocacy groups and a State agency asserted that the proposal would 
simplify bid writing. One advocacy group suggested that local and 
smaller food producers have a hard time competing against larger 
producers and distributors, and multiple individuals and advocacy 
groups emphasized that the proposal could provide smaller local 
producers a ``competitive edge''. An academic institution stated that 
the proposal would encourage local producers to submit bids and provide 
a steady market for smaller-scale producers.

Final Rule

    This final rule codifies, without changes, USDA's proposal to 
expand the geographic preference option by allowing child nutrition 
program operators to use ``locally grown'', ``locally raised'', or 
``locally caught'' as procurement specifications (a written description 
of the product or service that the vendor must meet to be considered 
responsive and responsible) for unprocessed or minimally processed food 
items in the child nutrition programs. The definition of unprocessed, 
and the minimal food handling and processing techniques allowed within 
that definition, remains unchanged in this final rule (7 CFR 
210.21(g)(2), 220.16(f)(2), 225.17(e)(2), and 226.22(c)(1). USDA agrees 
with comments that suggested this provision will support increased 
procurement of local foods by child nutrition program operators. This 
change may encourage smaller-scale producers to submit bids to sell 
local foods to child nutrition programs and may ease procurement 
challenges for program operators interested in sourcing food locally.
    USDA will provide guidance and resources on implementing this final 
standard, including but not limited to: updating the geographic 
preference section of the Procuring Local Foods for the Child Nutrition 
Programs guide,\158\ the Geographic Preference Fact Sheet,\159\ and 
Geographic Preference Q&As Part I \160\ and Part II.\161\ These 
resources and guidance respond to comments citing the need for program 
operators to adopt a definition of ``local'' that will support fair and 
open competition in the procurement and bidding process. Updates to 
these resources will also help program operators choose appropriate 
procurement methods; conduct market research, requests for information, 
and producer outreach as needed; and retain appropriate documentation 
while implementing this final standard. USDA will continue to allow 
State agencies and program operators to adopt their own definition of 
``local'' and will not prescribe a Federal definition for the purpose 
of procuring local foods for child nutrition programs. Program 
operators are encouraged to adopt definitions of ``local'' that best 
suit their distinct needs and goals, for example based on their 
community's unique geography and climate, the availability of local 
producers and manufacturers, and program participants' interest in 
local products.
---------------------------------------------------------------------------

    \158\ U.S. Department of Agriculture. Procuring Local Foods for 
the Child Nutrition Programs. Available at: https://fns-prod.azureedge.us/sites/default/files/resource-files/June22F2SProcurementGuide508.pdf.
    \159\ U.S. Department of Agriculture. Geographic Preference Fact 
Sheet. Available at: https://www.fns.usda.gov/f2s/geographic-preference.
    \160\ U.S. Department of Agriculture. Procurement Geographic 
Preference Q&As. February 1, 2011. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas.
    \161\ U.S. Department of Agriculture. Procurement Geographic 
Preference Q&As: Part II. October 9, 2012. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas-%E2%80%93-
part-ii.
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    In response to comments requesting that USDA allow procurement 
values beyond local, such as certified organic or certified by an 
independent animal welfare program as procurement specifications, USDA 
will clarify in updated guidance and resources that these and other 
similar production standards are already allowable as specifications in 
program operators' procurement solicitations as long as they do not 
overly restrict competition. USDA will also continue to provide 
training, technical assistance, and, under certain circumstances as 
available, financial support, to program operators to help them 
mitigate costs and other barriers to local food procurement. Since 
January 2021, USDA has provided:
     $200 million for States to purchase local foods for 
schools through the Local Food for Schools Cooperative Agreement 
Program;
     Nearly $3.8 billion in Supply Chain Assistance funds for 
schools to purchase domestic foods, including $1.3 billion for SY 2023-
2024;
     $140 million for Equipment Assistance Grants to help 
schools buy kitchen equipment, which can help them process local foods; 
and
     $94 million to provide children with nutritious, local 
foods and agricultural education through expanded Farm to School 
engagement.\162\
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    \162\ U.S. Department of Agriculture. USDA Support for School 
Meals. Available at: https://www.fns.usda.gov/cn/support-schools.
---------------------------------------------------------------------------

    Accordingly, this final rule amends 7 CFR 210.21(g)(1), 215.14a(e),

[[Page 32034]]

220.16(f)(1), 225.17(e)(1), and 226.22(c)(1), to codify the expansion 
of the geographic preference option to allow ``locally grown'', 
``locally raised'', or ``locally caught'' as procurement 
specifications. Program operators may begin implementing the expanded 
geographic preference option in their procurement processes immediately 
following this rule's effective date. Program operators remain 
responsible for complying with all Federal, State, and local 
procurement regulations. NSLP and SBP program operators' compliance 
with Federal procurement regulations will continue to be monitored 
through State agency oversight of procurement.

Section 20: Miscellaneous Changes

    In addition to the major provisions of this rulemaking, USDA is 
finalizing a variety of miscellaneous changes to the child nutrition 
program regulations. The miscellaneous changes update terminology used 
in the regulations, remove outdated information, and correct cross 
references. However, as detailed below, this rule does not finalize the 
proposed terminology change for the meats/meat alternates component. 
Additionally, USDA is finalizing a severability clause in this 
rulemaking, as detailed below. In the event any changes made by this 
rulemaking are to be held invalid or unenforceable, USDA intends that 
the other changes will remain. USDA has further specified what 
requirement would replace the invalidated change.

Terminology Change: Protein Sources Component [Not Finalized]

    Current child nutrition program regulations use the term ``meats/
meat alternates'' for the meal component that includes beans and peas, 
whole eggs, tofu, tempeh, meat, poultry, fish, cheese, yogurt, soy 
yogurt, peanut butter and other nut or seed butters, and nuts and 
seeds. USDA proposed to change the name of the meats/meat alternates 
meal component in the NSLP, SBP, and CACFP regulations to ``protein 
sources.'' Under this proposal, all references in 7 CFR parts 210, 220, 
and 226 to ``meats/meat alternates'' would change to ``protein 
sources.'' The foods within this meal component would remain unchanged.
Public Comments
    USDA received 240 comments on this proposed terminology change, 
including 131 unique comments. Of these, 57 supported the proposal, all 
of which were unique comments, 120 were opposed, including 31 unique 
comments, and 63 were mixed, including 43 unique comments. Comments 
were submitted by State agencies, school nutrition professionals, 
advocacy groups, industry respondents, dietitians, and CACFP sponsoring 
organizations.
    A dietitian argued that the proposed meal component name of 
``protein sources'' sounded ``much more appealing'' than meats/meat 
alternates. Another respondent suggested protein sources ``makes more 
sense'' as a meal component name compared to meats/meat alternates. An 
advocacy group supported the change, maintaining that the term ``meats/
meat alternates'' creates a negative perception of plant-based foods 
and is confusing to child nutrition operators, families, and students. 
A school district agreed, suggesting the proposed terminology change 
would help in communications with families. Similarly, an advocacy 
group suggested that ``terminology has changed'' and renaming the 
component would improve understanding for school nutrition 
professionals and families. A school district noted that children 
struggle to understand the current term and maintained that ``protein'' 
is a universally understood term that better describes the component. A 
State agency supported the change, but requested USDA consider the 
burden some States may face to revise and reprint resources due to the 
change.
    Opponents argued that the change would require costly updates to 
materials, would require significant retraining, and would make it 
difficult to determine which foods are creditable under the protein 
source meal component. For example, an industry respondent stated that 
renaming the meats/meat alternates component to the protein sources 
component is akin to renaming the milk component to the calcium 
component, describing the proposal as inaccurate and misleading. An 
advocacy group agreed, citing concerns about potential confusion with 
protein-labeled food items, or specific products such as protein bars 
and protein shakes, which do not credit toward the meats/meat 
alternates component (and would not credit toward the protein sources 
component, if the change is finalized). This respondent argued that 
implementing this change would require significant technical 
assistance. Further, the same advocacy group maintained that the 
proposed terminology change would create financial burden for 
retraining providers and developing new documents and materials. A 
State agency provided similar feedback, asserting that the proposed 
terminology change would require a ``tremendous'' number of staff hours 
to update documents. Another State agency also cited concerns about the 
burden of implementing this change and noted that they have not 
encountered problems with the current terminology.
    Conversely, one school district acknowledged that updating and 
reprinting materials may be costly, but still supported the change. 
This respondent saw renaming the component as an opportunity to 
``update and refresh'' the program with terms participants would 
understand. An industry respondent suggested that phasing in the change 
over several years would allow industry to plan label inventories and 
resource allocation to minimize the anticipated impact of making the 
terminology change.
    A few respondents offered mixed feedback or alternative 
suggestions. One State agency recommended keeping the meal component 
names ``simple'' and suggested aligning with MyPlate, which includes 
the following food groups: fruits, vegetables, grains, protein foods, 
and dairy. However, this respondent noted that, due to the requirement 
to offer milk with school meals, the MyPlate dairy group would need to 
be replaced with a milk group. An industry respondent suggested that 
USDA name the meal component ``proteins'' instead of ``protein 
sources'' for brevity. An advocacy group recommended that USDA allow 
quinoa to credit toward the protein sources component. Additionally, 
this respondent recommended that tofu and soy products and beans, peas, 
and lentils be allowed to credit as protein sources even if they are 
not visually recognizable. An advocacy group encouraged USDA to provide 
``a national list of definitive protein sources'' for child nutrition 
program operators. A different advocacy group stated that making this 
change in some child nutrition programs, but not SFSP, would create 
confusion for operators that participate in multiple programs. A State 
agency, school district, and another respondent strongly encouraged 
USDA to prioritize making similar changes in SFSP to address 
inconsistencies and align terminology across all child nutrition 
programs.
Final Rule
    In response to public comments, USDA is not finalizing the proposal 
to change the name of the meats/meat alternates meal component in the 
NSLP, SBP, and CACFP regulations to ``protein sources.'' USDA 
appreciates concerns that respondents raised with the proposed 
terminology change, including the challenge of updating State and

[[Page 32035]]

local materials to reflect the change. Although these changes could 
have been accomplished over time, and State and local operators would 
not have been penalized for using the prior terminology, USDA will not 
finalize this proposed change given respondent concerns. In addition, 
many respondents from the CACFP community recommended that USDA assess 
the potential impacts of terminology changes on all child nutrition 
program operators prior to making them. USDA will consider this 
suggestion when considering potential terminology changes in the 
future.
    USDA also appreciates comments regarding potential confusion about 
foods that would credit toward the ``protein sources'' component. 
Although the proposed terminology change would not have changed current 
guidelines regarding foods that may credit toward the existing meats/
meat alternates component,163 164 USDA appreciates that use 
of the word ``source'' in the proposed component name could have 
created confusion for operators. The child nutrition programs use a 
food-based menu planning approach, which helps to ensure that children 
are offered (and learn to build) meals that include key food groups 
recommended by the Dietary Guidelines. In the near term, based on input 
from respondents, USDA has determined the meats/meat alternates 
component name better reflects the food-based menu planning approach.
---------------------------------------------------------------------------

    \163\ For information on crediting the meat/meat alternate 
component, see the Food Buying Guide for Child Nutrition Programs, 
available at: https://www.fns.usda.gov/tn/food-buying-guide-for-child-nutrition-programs.
    \164\ Exceptions include certain smoothie ingredients and pasta 
products made from vegetable flours. See Question 104: U.S. 
Department of Agriculture, Meal Requirements Under the NSLP & SBP: 
Q&A for Program Operators Updated to Support the Transitional 
Standards Effective July 1, 2022, March 2, 2022. Available at: 
https://www.fns.usda.gov/cn/sp052022-questions-answers-program-operators.
---------------------------------------------------------------------------

    USDA appreciates respondent suggestions for other potential 
component names, such as ``proteins'' and ``protein foods.'' USDA also 
appreciates respondent feedback on other changes USDA could make to the 
meal components, including which meal component certain foods credit 
toward. However, for the reasons detailed above, this final rule 
maintains the meats/meat alternates component name and does not make 
any changes to food crediting guidelines for this component.

Terminology Change: Beans, Peas, and Lentils

    The Dietary Guidelines, 2020-2025, changed the terminology for the 
``legumes (beans and peas)'' vegetable subgroup to ``beans, peas, and 
lentils.'' \165\ The foods within this vegetable subgroup did not 
change. USDA proposed to change the name of the ``legumes (beans and 
peas)'' vegetable subgroup in the school meal pattern regulations to 
align with the Dietary Guidelines. Under this proposal, all references 
in 7 CFR parts 210 and 220 to ``legumes (beans and peas)'' would change 
to ``beans, peas, and lentils'' for consistency with the terminology 
used in the Dietary Guidelines. The foods within this vegetable 
subgroup and the related requirements would remain unchanged. USDA also 
proposed to change references to ``beans and peas (legumes)'' in 7 CFR 
part 226 to ``beans, peas, and lentils''.
---------------------------------------------------------------------------

    \165\ See ``About Beans, Peas, and Lentils,'' page 31. 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/.
---------------------------------------------------------------------------

Public Comments
    USDA received 134 comments on this proposed terminology change, 
including 45 unique comments. Comments were submitted by State 
agencies, advocacy groups, and individuals. An advocacy group stated 
that the proposed change ``brings the school nutrition language into 
alignment with the language used in the Dietary Guidelines.'' A State 
agency agreed, suggesting that this change would improve ``consistency 
with terminology used in the Dietary Guidelines.'' A few other 
respondents, including advocacy groups and individuals, expressed 
support for the terminology change.
    While fewer respondents opposed the ``beans, peas, and lentils'' 
terminology change compared to the ``protein sources'' terminology 
change, those who did gave similar reasons for their opposition. For 
example, a State agency opposed the change, suggesting that terminology 
changes would require all materials that use the terms to be redone and 
redistributed which would be costly and time consuming. A few 
respondents, including a State agency, did not oppose the change, but 
suggested adding ``dry'' in ``beans, peas, and lentils'' to avoid 
confusing vegetables in this subgroup with fresh green beans and peas, 
which count toward the ``other'' vegetable subgroup and the starchy 
vegetable subgroup, respectively.
Final Rule
    USDA is finalizing the proposal to change the name of the ``legumes 
(beans and peas)'' vegetable subgroup in the school meal pattern 
regulations and to change references to ``beans and peas (legumes)'' in 
CACFP regulations. This final rule will instead refer to ``beans, peas, 
and lentils,'' consistent with the terminology used in the Dietary 
Guidelines. Additionally, USDA is extending this change to SFSP based 
on public input encouraging consistent terminology across child 
nutrition programs.
    USDA acknowledges that some respondents recommended including the 
word ``dry'' before the NSLP vegetable subgroup name ``beans, peas, and 
lentils,'' to differentiate from green peas and green beans. However, 
USDA has opted to maintain the proposed terminology change without 
modification. As noted, the vegetable subgroup name in the Dietary 
Guidelines is ``beans, peas, and lentils.'' Therefore, the terminology 
for the NSLP vegetable subgroup name finalized in this rule aligns with 
the Dietary Guidelines. To clarify, the vegetables that count toward 
this subgroup in the school meal programs have not changed; only the 
name of the subgroup has changed. Green peas will continue to count 
toward the starchy vegetable subgroup, and fresh green beans will 
continue to count toward the ``other'' vegetable subgroup.\166\
---------------------------------------------------------------------------

    \166\ According to the Dietary Guidelines, ``Green peas and 
green (string) beans are not counted in the beans, peas, and lentils 
subgroup because the nutrient content of these vegetables is more 
similar to vegetables in other subgroups.'' The Dietary Guidelines 
consider green peas to be a starchy vegetable, and green beans to be 
part of the ``other'' vegetable subgroup. NSLP regulations for the 
vegetable subgroups reflect the Dietary Guidelines. See ``About 
Beans, Peas, and Lentils,'' page 31. 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/.
---------------------------------------------------------------------------

    While USDA encourages stakeholders to update materials to reflect 
this change, USDA anticipates a transition period and does not expect 
these updates to happen immediately. State and local operators will not 
be penalized for using the prior terminology.
    Accordingly, this final rule amends 7 CFR parts 210, 220, 225, and 
226 to change references to ``legumes (beans and peas)'' and ``beans 
and peas (legumes)'' to ``beans, peas, and lentils.'' Child nutrition 
program operators are not required to change menus or

[[Page 32036]]

operations as a result of this terminology change, but are encouraged 
to proactively transition to the new terminology.

Technical Corrections

    This final rule makes several additional technical corrections to 
the regulations, which are outlined by regulatory section below. These 
proposed technical corrections would not make substantive changes to 
the child nutrition programs. Instead, the proposed corrections, which 
are reflected in the proposed amendatory language, generally fall into 
the following categories:
     Removing outdated terminology or updating terminology and 
definitions for consistency across regulations.
     Removing outdated implementation dates.
     Removing requirements that are no longer in effect.
     Reordering the school meal pattern meal component 
paragraphs to reflect the order used in the meal pattern tables.
     Revising meal pattern tables to improve usability.
     Correcting erroneous cross-references.
    Please see Note about Amendatory Instructions, below, for 
information about how these changes are addressed in the amendatory 
instructions.
7 CFR part 210: National School Lunch Program
7 CFR 210.2 Definitions
     Remove definition of CND, which is no longer in use.
     Replace the definition of Food component with the 
definition of Meal component.
     Redesignate paragraphs to use numbers instead of letters 
(e.g., (1) and (2) instead of (a) and (b)) in the definitions of 
Reduced price lunch, School, State agency, and State educational 
agency.
     Remove outdated language in the definition of Residential 
child care institution.
     Revise the definition of Yogurt to reflect changes to the 
FDA standard of identity of yogurt.
7 CFR 210.3 Administration
     7 CFR 210.3(a): Remove sentence referring to ``the CND,'' 
a term no longer in use.
7 CFR 210.4 Cash and Donated Food Assistance to States
     7 CFR 210.4(b)(3): Remove incorrect cross-reference to 
afterschool snacks section of regulations (Sec.  210.10(n)) and add the 
correct cross-reference (Sec.  210.10(o)).
7 CFR 210.7 Reimbursement for School Food Authorities
     7 CFR 210.7(d): Remove erroneous cross-reference to Sec.  
220.23, which is no longer in effect.
     7 CFR 210.7(e): Correct erroneous cross-reference to 
afterschool snacks section of regulation (from Sec.  210.10(n)(1) to 
Sec.  210.10(o)(1)).
7 CFR 210.9 Agreement With State Agency
     7 CFR 210.9(b)(21): Remove outdated implementation date.
     7 CFR 210.9(c): Remove incorrect cross-reference to 
afterschool snacks section of regulations (Sec.  210.10(n)(1)) and add 
the correct cross-reference (Sec.  210.10(o)(1)).
7 CFR 210.10 Meal Requirements for Lunches and Requirements for 
Afterschool Snacks
     Change all references from ``food components'' to ``meal 
components''.
     7 CFR 210.10(c): Add minimum creditable amount for all 
meal components in meal pattern table footnotes.
     In meal pattern tables, add or revise titles for clarity.
     In meal pattern tables, change footnotes to use numbers 
instead of letters and combine related footnotes to improve 
readability.
7 CFR 210.11 Competitive Food Service and Standards
     7 CFR 210.11(m) (redesignated to paragraph (l)): Combine 
fluid milk and milk alternatives paragraphs and cross-reference Sec.  
210.10(d)(1) and (2) instead of repeating milk standards in Sec.  
210.11.
     7 CFR 210.11(m) (redesignated to paragraph (l)): Adjust 
punctuation to improve readability.
     7 CFR 210.11(i) and (n): Remove outdated implementation 
dates.
7 CFR 210.12 Student, Parent, and Community Involvement
     7 CFR 210.12(e): Correct erroneous cross-reference to 
local school wellness policies by replacing Sec.  210.30(d) with Sec.  
210.31(d).
7 CFR 210.14 Resource Management
     7 CFR 210.14(e): Remove outdated implementation date.
     7 CFR 210.14(e)(5)(ii)(D): Remove outdated implementation 
date.
     7 CFR 210.14(e)(6)(iii): Remove outdated language.
     7 CFR 210.14(f): Remove outdated implementation date.
7 CFR 210.15 Reporting and Recordkeeping
     7 CFR 210.15(b)(9): Correct erroneous cross-reference to 
local school wellness policies by replacing Sec.  210.30(f) with Sec.  
210.31(f).
7 CFR 210.18 Administrative Reviews
     7 CFR 210.18(h)(2)(x): Correct erroneous cross-reference 
to local school wellness policies by replacing Sec.  210.30 with Sec.  
210.31.
7 CFR 210.19 Additional Responsibilities
     7 CFR 210.19(f): Remove outdated implementation date.
7 CFR 210.20 Reporting and Recordkeeping
     7 CFR 210.20(a)(6) and (7): Remove requirements that are 
no longer in effect.
     7 CFR 210.20(b)(10): Remove requirement that is no longer 
in effect.
7 CFR 210.29 Management Evaluations
     7 CFR 210.29(d)(3): Remove incorrect physical address for 
the Food and Nutrition Service.
7 CFR Part 220: School Breakfast Program
7 CFR 220.2 Definitions
     Remove erroneous cross-references to Sec.  220.23, which 
is no longer in effect.
     Remove definitions of CND, OA, and OI, which are no longer 
in use.
     Revise definitions of Department, Distributing agency, 
Fiscal year, FNS, FNSRO, Free breakfast, Reduced price breakfast, 
Reimbursement, School Food Authority, and State agency for consistency 
with definitions in 7 CFR 210.2.
     Remove the definition of Food component and instead add 
the definition of Meal component.
     Remove the definitions of Menu item and Nutrient Standard 
Menu Planning/Assisted Nutrient Standard Menu Planning, which are no 
longer in use under food-based menu planning.
     Remove the second definition of Non-profit, which is 
duplicative and outdated.
     Remove outdated language in the definition of Residential 
child care institution.
     Revise the definition of Yogurt to reflect changes to the 
FDA standard of identity of yogurt.
7 CFR 220.3 Administration
     7 CFR 220.3(a): Remove sentence referring to ``the CND,'' 
a term no longer in use.

[[Page 32037]]

7 CFR 220.7 Requirements for Participation
     7 CFR 220.7(e)(2), (4), (5), (9), and (13): Revise 
language for clarity and remove outdated references.
     7 CFR 220.7(h): Correct erroneous cross-reference to local 
school wellness policies by replacing Sec.  210.30 with Sec.  210.31.
7 CFR 220.8 Meal Requirements for Breakfasts
     Change all references from ``food components'' to ``meal 
components''.
     7 CFR 220.8(a)(2): Change reference from ``reimbursable 
lunch'' to ``reimbursable breakfast''.
     7 CFR 210.10(c): Add minimum creditable amount for all 
meal components in meal pattern table footnotes.
     In meal pattern tables, add or revise titles for clarity.
     In meal pattern tables, change footnotes to use numbers 
instead of letters and combine related footnotes to improve 
readability.
     7 CFR 210.10(c)(2)(i)(A): Remove reference to crediting 
enriched macaroni at lunch.
     7 CFR 210.10(c)(2)(v): Add fluid milk as a listed meal 
component in paragraph (c)(2).
7 CFR 220.13 Special Responsibilities of State Agencies
     7 CFR 220.13(b)(3): Remove requirements that are no longer 
in effect.
     7 CFR 220.13(c): Remove outdated references to ``OI''.
     7 CFR 220.13(f)(3): Remove erroneous cross-reference to 
Sec.  220.23, which is no longer in effect.
     7 CFR 220.13(l): Remove requirement that is no longer in 
effect.
7 CFR 220.14 Claims Against School Food Authorities
     Remove references to the term ``CND'', which is no longer 
in use.
7 CFR Part 225: Summer Food Service Program
7 CFR 225.16 Meal Service Requirements
     Change all references from ``food components'' to ``meal 
components''.
7 CFR part 226: Child and Adult Care Food Program
7 CFR 226.2 Definitions
     Remove outdated language in the definition of 
``Functionally impaired adult''.
     Add definition for ``meal component''.
7 CFR 226.20 Requirements for Meals
     Change all references from ``food components'' to ``meal 
components''.
     Change all references from ``grains'' to ``grain items'' 
within the footnotes to meal pattern tables.
     Update the meats/meat alternates row at 7 CFR 226.20(c) in 
the Meal Patterns for Children Age 1 through 18 and Adult Participants 
to use ounce equivalents and refer to meats/meat alternates sources 
generally, instead of listing specific foods within the category.
     In meal pattern tables, revise certain footnotes for 
clarity and combine related footnotes to improve readability.

Note About Amendatory Instructions

    As detailed above, USDA is making a variety of minor technical 
changes in this rulemaking. For example, this rule removes outdated 
implementation dates and makes minor wording changes throughout the 
school meal program regulations to reflect current terminology. At the 
direction of the Office of the Federal Register,\167\ instead of 
drafting the specific and targeted amendatory instructions to make 
these individual changes, USDA is providing full context for these 
changes by including not only the revised content, but also the 
unchanged content that appears adjacent to the changed text. As such, 
large sections of the existing regulations are reprinted in the 
amendatory instructions of this rule without change, beyond the minor 
technical corrections detailed above. All substantive changes made by 
this rulemaking are explained in this preamble.
---------------------------------------------------------------------------

    \167\ Office of the Federal Register. Amendatory instruction: 
Revise and Republish. Available at: https://www.archives.gov/federal-register/write/ddh/revise-republish.
---------------------------------------------------------------------------

Severability

    USDA is finalizing a severability clause for changes to the meal 
pattern requirements made by this rulemaking. In the event any changes 
made by this rulemaking were to be held invalid or unenforceable, USDA 
intends the remainder of the changes to remain in place. USDA further 
specifies what requirement would replace the invalidated change. This 
final rule adds a new paragraph (r) to 7 CFR 210.10 (NSLP meal pattern 
requirements) providing that if any provision of such section is held 
to be invalid or unenforceable by its terms, or as applied to any 
person or circumstances, it shall be severable from that section and 
not affect the remainder thereof. In the event of such holding of 
invalidity or unenforceability of a provision, the regulations provide 
that the meal pattern requirement covered by that provision would 
revert to the version that immediately preceded the invalidated 
provision. This final rule adds similar paragraphs to 7 CFR 220.8 (SBP 
meal pattern requirements), and 7 CFR 226.20 (CACFP meal pattern 
requirements).

Section 21: Summary of Changes

    This section provides a high-level overview of the provisions 
finalized in this rulemaking. It includes:
     A descriptive summary of changes; and
     A table detailing the changes, including the child 
nutrition program or programs that the changes apply to, and their 
implementation dates.

21A: Descriptive Summary of Changes

    This section provides a narrative summary of the changes finalized 
in this rulemaking, including the implementation dates.

Section 2: Added Sugars

    This rulemaking finalizes the following added sugars limits in the 
school lunch and breakfast programs:
     Product-based limits: this rulemaking implements the 
following product-based limits for school meals; these limits must be 
implemented by SY 2025-2026:
     Breakfast cereals: limited to no more than 6 grams of 
added sugars per dry ounce.
     Yogurt: limited to no more than 12 grams of added sugars 
per 6 ounces.
     Flavored milk: limited to no more than 10 grams of added 
sugars per 8 fluid ounces or, for flavored milk sold as a competitive 
food for middle and high schools, 15 grams of added sugars per 12 fluid 
ounces.
     Weekly dietary limit: this rulemaking implements 
a dietary specification limiting added sugars to less than 10 percent 
of calories per week in the school lunch and breakfast programs; this 
weekly limit, which must be implemented by SY 2027-2028, is in addition 
to the product-based limits described above.
    This rulemaking also extends the product-based added sugars limits 
for breakfast cereals and yogurt to CACFP; this change must be 
implemented by October 1, 2025. These added sugars limits replace the 
existing total sugars limits for breakfast cereals and yogurt in CACFP.

[[Page 32038]]

Section 3: Milk

Section 3A: Flavored Milk

    This final rule maintains the current regulation allowing all 
schools to offer fat-free and low-fat milk, flavored and unflavored, to 
K-12 students, with the new proposed added sugars limit for flavored 
milk. This final rule also continues to allow SMP and CACFP operators 
to offer fat-free and low-fat milk, flavored and unflavored, to 
participants ages 6 and older. Because this rule finalizes the current 
flavored milk requirements, child nutrition program operators will not 
need to make changes to their menus to comply with this provision, 
beyond complying with the product-based added sugars limit for flavored 
milk in Section 2: Added Sugars upon implementation.

Section 3B: Fluid Milk Substitutes: Responses to Request for Input

    This final rule reorganizes the NSLP regulatory text related to 
fluid milk substitutes for non-disability reasons. This rule moves the 
regulatory text explaining the non-disability fluid milk substitute 
requirements from paragraph (m) of 7 CFR 210.10--which discusses 
exceptions and variations allowed in reimbursable meals--to paragraph 
(d) of 7 CFR 210.10--which discusses the fluid milk requirements. 
Schools are not required to change menus or operations as a result of 
this technical change.
    This final rule does not make any substantive changes to the non-
disability fluid milk substitute request process outlined in 
regulation; USDA does not have the authority to change the statutory 
requirements for non-disability fluid milk substitutes.

Section 3C: Fluid Milk Substitutes: Nutrient Requirements

    As a conforming amendment, this final rule changes the units for 
vitamin A and vitamin D requirements for fluid milk substitutes in all 
child nutrition programs. Instead of 500 IUs, the unit for the vitamin 
A requirement is now 150 mcg retinol activity equivalents (RAE) per 8 
fluid ounces. Instead of 100 IUs, the unit for the vitamin D 
requirement is now 2.5 mcg per 8 fluid ounces. Child nutrition program 
operators are not required to change menus or operations as a result of 
this technical change.

Section 4: Whole Grains

    This final rule maintains the current whole grains requirement that 
at least 80 percent of the weekly grains offered in the school lunch 
and breakfast programs are whole grain-rich, based on ounce equivalents 
of grains offered. It also codifies the definition of ``whole grain-
rich'' in NSLP, SBP, and CACFP regulations, to mean that the grain 
content of a product is between 50 and 100 percent whole grain. Lastly, 
this final rule updates the definition of ``entr[eacute]e item'' in the 
competitive food service regulations to clarify that both whole-grain 
rich and enriched grain entr[eacute]es offered as part of a 
reimbursable school meal may qualify as an ``entr[eacute]e item'' when 
sold [agrave] la carte as a ``Smart Snack.'' Because this rule 
finalizes the current whole grain-rich requirements and whole grain-
rich definition, child nutrition program operators will not need to 
make changes to comply with the whole grain-rich provision of this 
rule.

Section 5: Sodium

    This final rule maintains current sodium limits at school lunch and 
breakfast through June 30, 2027, and implements one reduction in school 
lunch and breakfast sodium limits that schools must implement by July 
1, 2027. As suggested by numerous stakeholders, this final rule also 
commits to conducting a study on potential associations between sodium 
reduction and student participation in school meals.

Section 6: Meats/Meat Alternates at Breakfast

    This final rule codifies the combined grains and meats/meat 
alternates meal component at K-12 breakfast and removes the requirement 
for schools to offer 1.0 ounce equivalent of grains each day at 
breakfast. Schools may offer grains, meats/meat alternates, or a 
combination of both to meet the minimum ounce equivalents in this 
combined component requirement. This change provides schools with more 
menu planning flexibility at breakfast. Schools are not required to 
change menus or operations as a result of this provision.

Section 7: Substituting Vegetables for Grains in Tribal Communities

    The final rule codifies the proposal to add school food authorities 
and schools that are tribally operated, operated by the Bureau of 
Indian Education, and that serve primarily American Indian or Alaska 
Native children to the list of schools at 7 CFR 210.10(c)(3) and 
220.8(c)(3) that may serve vegetables to meet the grains requirement in 
NSLP and SBP. For SFSP and CACFP, USDA finalizes the proposal to revise 
7 CFR 225.16(f)(3) and 226.20(f) to allow sponsors, institutions, and 
facilities, as applicable, that serve primarily American Indian or 
Alaska Native participants to substitute vegetables for grains or 
breads. Additionally, this final rule allows all schools, sponsors, 
institutions, and facilities in Guam and Hawaii to serve vegetables to 
meet the grains or breads requirement. These changes provide child 
nutrition program operators an optional menu planning flexibility. 
Program operators are not required to change menus or operations as a 
result of this provision.

Section 8: Traditional Indigenous Foods

    This final rule codifies the proposal to explicitly state in 
regulation that traditional Indigenous foods may be served in 
reimbursable school meals. Regulations at 7 CFR 210.10(c)(7) and 
220.8(c)(4) will include the definition of traditional foods from the 
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), 
which defines traditional food as ``food that has traditionally been 
prepared and consumed by an [American] Indian tribe,'' including wild 
game meat, fish, seafood, marine mammals, plants, and berries. Schools 
are not required to change menus or operations as a result of this 
technical change.

Section 9: Afterschool Snacks

    This final rule aligns NSLP snack meal pattern requirements for K-
12 children with the CACFP snack meal pattern requirements, as required 
by the National School Lunch Act (NSLA, 42 U.S.C. 1766a(d)). 
Additionally, this rule finalizes the provision from the 2020 proposed 
rule to revise the definition of Child. This change clarifies that 
children who are age 18 and under at the start of the school year may 
receive reimbursable NSLP snacks, consistent with statute (NSLA, 42 
U.S.C. 1766a(b)). As with the proposed rule, this final rule changes 
all regulatory references in 7 CFR part 210 from ``meal supplements'' 
to ``afterschool snacks.'' The change to NSLP snack meal pattern 
requirements must be implemented by July 1, 2025.

Section 10: Substituting Vegetables for Fruits at Breakfast

    This final rule continues to allow schools to substitute vegetables 
for fruits in the SBP and simplifies the vegetable variety requirement. 
Under this final rule, schools choosing to offer vegetables at 
breakfast one day per school week have the option to offer any 
vegetable, including a starchy vegetable. Schools that choose to 
substitute vegetables for fruits at breakfast on two or more days per 
school week are required to offer vegetables from at least two 
different subgroups. The vegetable subgroups that schools may choose 
from

[[Page 32039]]

include dark green, red/orange, beans, peas, and lentils, starchy, and 
``other'' vegetables.

Section 11: Nuts and Seeds

    This final rule codifies the proposal to allow nuts and seeds to 
credit for the full meats/meat alternates component in all child 
nutrition programs and meals, removing the 50 percent crediting limit 
for nuts and seeds at breakfast, lunch, and supper. This change 
provides child nutrition program operators more menu planning 
flexibility. Program operators are not required to change menus or 
operations as a result of this provision.

Section 12: Beans, Peas, and Lentils at Lunch

    This final rule codifies the option for schools to count beans, 
peas, and lentils offered as a meat alternate at lunch toward the 
weekly beans, peas, and lentils vegetable subgroup requirement. Under 
this option, as with the current requirement, menu planners would 
determine which overall meal component beans, peas, and lentils would 
count toward: the vegetable meal component, or the meats/meat 
alternates meal component. Beans, peas, and lentils offered to students 
as either vegetables or meat alternates can count toward the weekly 
requirement to offer \1/2\ cup of beans, peas, and lentils. This change 
provides schools with more menu planning flexibility at lunch. Schools 
are not required to change menus or operations as a result of this 
provision.

Section 13: Competitive Foods: Bean Dip Exemption

    This final rule adds bean dip to the list of foods exempt from the 
total fat standard in the Smart Snacks regulations. This exemption 
applies to products marketed as hummus, as well as bean dips made from 
any variety of beans, peas, or lentils. Bean dip will continue to be 
subject to the saturated fat standard for Smart Snacks, as well as all 
other Smart Snacks requirements. This change provides schools the 
option to sell bean dip as a Smart Snack. Schools are not required to 
change operations as result of this provision.

Section 14: Meal Modifications

    This final rule codifies in regulation that State licensed 
healthcare professionals and registered dietitians may write medical 
statements to request meal modifications on behalf of child or adult 
participants with disabilities in the school meal programs and CACFP. 
It also defines a State licensed healthcare professional as an 
individual authorized to write medical prescriptions under State law. 
The change requiring schools, institutions, and facilities to accept 
medical statements from registered dietitians must be implemented by 
July 1, 2025, for the school meal programs, and by October 1, 2025, for 
CACFP. This final rule also updates and reorganizes the regulatory text 
to distinguish between disability and non-disability requests more 
clearly. Regarding non-disability requests, this final rule also 
encourages schools, institutions, and facilities to meet participants' 
non-disability dietary preferences when planning and preparing school 
and CACFP meals.

Section 15: Clarification on Potable Water Requirements

    This final rule maintains the requirement that schools make plain 
potable water available and accessible without restriction to children 
at no charge during the meal service. To clarify this requirement, this 
final rule adds the word ``plain'' to the potable water regulations. 
Schools are not required to change menus or operations as a result of 
this technical change.

Section 16: Synthetic Trans Fats

    This final rule removes the dietary specification prohibiting 
synthetic trans fat in the school lunch and breakfast programs, and in 
foods sold to children on campus during the school day. Under this 
change, schools will no longer need to include the synthetic trans fat 
prohibition in their procurement documentation, and State agencies will 
no longer need to review product labels or manufacturer specifications 
during Administrative Reviews for compliance with the synthetic trans 
fat dietary specification.

Section 17: Professional Standards: Hiring Exception for Medium and 
Large Local Educational Agencies

    This final rule codifies the proposal to allow State agency 
discretion to approve the hiring of an individual to serve as a school 
nutrition program director in a medium or large local educational 
agency, for individuals who have 10 years or more of school nutrition 
program experience but who do not hold a bachelor's or an associate's 
degree. Directors hired under this exception must have a high school 
diploma or GED. At the discretion of the State agency, this change 
provides local educational agencies an optional hiring flexibility. 
Schools are not required to change menus or operations as a result of 
this provision.

Section 18: Buy American

18A: Limited Exceptions to the Buy American Requirement

    This final rule maintains the following limited exceptions for the 
Buy American provision and codifies them in regulation. The two limited 
circumstances when school food authorities may purchase non-domestic 
foods are when:
     The product is listed on the FAR 25.104 Nonavailable 
articles list and/or is not produced or manufactured in the U.S. in 
sufficient and reasonably available quantities of a satisfactory 
quality; or
     Competitive bids reveal the costs of a U.S. product are 
significantly higher than the non-domestic product.
    This final rule will also gradually phase in a cap on non-domestic 
food costs. This cap applies to total commercial food costs. The non-
domestic food costs cap will be phased in as follows:
     Beginning in SY 2025-2026, the non-domestic food cost cap 
will be 10 percent.
     Beginning in SY 2028-2029, the non-domestic food cost cap 
will be 8 percent.
     Beginning in SY 2031-2032, the non-domestic food cost cap 
will be 5 percent.

18B: Exception Documentation and Reporting Requirements

    This final rule requires school food authorities to maintain 
documentation to demonstrate use of one of the two limited exceptions 
for non-domestic food purchases, as detailed in Section 18A. In 
response to public comments, this final rule exempts products on the 
FAR 25.104 Nonavailable articles lists from the documentation 
requirement.

18C: Procurement Procedures

    This final rule requires school food authorities to include the Buy 
American requirements in documented procurement procedures, 
solicitations, and contracts for foods and food products procured for 
the school lunch and breakfast programs.

18D: Definition of ``Substantially''

    This final rule codifies the following definition of 
``substantially'' in the Buy American regulations: ``Substantially 
using agriculture commodities that are produced in the United States 
means over 51 percent of a food product must consist of agricultural 
commodities that were grown domestically.'' This change is consistent 
with existing USDA policy guidance. Therefore, schools are not expected 
to need to change menus or

[[Page 32040]]

operations as a result of this technical change.

18E: Clarification of Requirements for Harvested Farmed and Wild Caught 
Fish

    This final rule codifies language in regulations regarding how the 
Buy American requirements apply to fish and fish products offered in 
the school lunch and breakfast programs. In order to be compliant with 
Buy American requirements, under this final rule:
     Farmed fish must be harvested within the United States or 
any territory or possession of the United States.
     Wild caught fish must be harvested within the Exclusive 
Economic Zone of the United States or by a United States flagged 
vessel.
    This change is consistent with statutory requirements and existing 
USDA policy guidance. Therefore, schools are not required to change 
menus or operations as a result of this technical change.

Section 19: Geographic Preference

    This final rule expands the geographic preference option by 
allowing ``locally grown'', ``locally raised'', or ``locally caught'' 
as procurement specifications (a written description of the product or 
service that the vendor must meet to be considered responsive and 
responsible) for unprocessed or minimally processed food items in the 
child nutrition programs. The definition of unprocessed, and the 
minimal food handling and processing techniques allowed within that 
definition, remains unchanged in this final rule. This final rule 
continues to allow State agencies and program operators to adopt their 
own definition of ``local'' and does not prescribe a Federal definition 
of ``local'' for the purpose of procuring local foods for child 
nutrition programs.

Section 20: Miscellaneous Changes

    This final rule makes a variety of miscellaneous changes to the 
child nutrition program regulations. This rule:
     Removes outdated terminology and updates terminology and 
definitions for consistency across regulations.
     Removes outdated implementation dates and requirements 
that are no longer in effect.
     Makes a variety of other technical corrections and changes 
to the regulations, as detailed in Section 20: Miscellaneous Changes.
    Child nutrition program operators are not required to change menus 
or operations as a result of the miscellaneous changes in this 
rulemaking.

21B: Table of Changes by Program

    The chart below details each provision of the rule, the section of 
the rule that covers the provision, the programs impacted, and the 
implementation date. For ease of reference, the acronyms used in the 
chart below are:

 NSLP--National School Lunch Program (7 CFR part 210)
 SMP--Special Milk Program (7 CFR part 215)
 SBP--School Breakfast Program (7 CFR part 220)
 SFSP--Summer Food Service Program (7 CFR part 225)
 CACFP--Child and Adult Care Food Program (7 CFR part 226)

    As noted in the Implementation Dates column, certain provisions of 
this rule address requirements that are already in effect. This 
rulemaking provides an implementation date for these provisions to 
account for minor corrections and reorganization of the regulatory 
text. Child nutrition program operators will not need to make any 
changes to comply with requirements that are already in effect. 
Additionally, many provisions of this rule provide optional 
administrative or operational flexibilities. Child nutrition program 
operators are not required to change menus or operations to comply with 
provisions that provide optional administrative or operational 
flexibilities. These provisions are noted in the Implementation Dates 
column.
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BILLING CODE 3410-30-C

Section 22: Procedural Matters

Executive Orders 12866, 13563, and 14094

    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

[[Page 32044]]

equity). Executive Order 13563 emphasizes the importance of quantifying 
both costs and benefits, of reducing costs, of harmonizing rules, and 
of promoting flexibility. This rulemaking has been determined to be 
significant under section 3(f)(1) of Executive Order 12866, as amended 
by Executive Order 14094, and was reviewed by the Office of Management 
and Budget in conformance with Executive Order 12866.

Regulatory Impact Analysis

    As required for all rules that have been designated as significant 
under section 3(f)(1) Executive Order 12866 by the Office of Management 
and Budget, a Regulatory Impact Analysis was developed for this rule. 
It follows this rule as an Appendix. The following summarizes the 
conclusions of the regulatory impact analysis:
    Need for Action: This rule establishes requirements that align 
school meals with the goals of the Dietary Guidelines for Americans, 
2020-2025, and that support the continued provision of nutritious 
school meals. To develop this rule, USDA considered broad stakeholder 
input, including written comments received in response to the 2023 
proposed rule, oral comments submitted during listening sessions, and a 
comprehensive review of the Dietary Guidelines for Americans, 2020-
2025. The proposed rule included a focus on sodium, whole grains, milk, 
and added sugars. This rule represents the next stage of the rulemaking 
process to permanently update and improve school meal pattern 
requirements. In response to public comments, this rule revises the 
proposed implementation of sodium reductions and maintains current milk 
requirements allowing schools to offer flavored milk to all K-12 
children. Further, this rule finalizes a variety of changes to school 
meal requirements from the 2020 proposed rule, Simplifying Meal Service 
and Monitoring Requirements in the National School Lunch and School 
Breakfast Programs. Updates for the Child and Adult Care Food Program 
(CACFP) and Summer Food Service Program (SFSP) are also included in 
certain provisions of this rule. Finally, this rulemaking will 
strengthen Buy American requirements.
    Benefits: Making the changes outlined in this rule can lead to 
improved health outcomes in the long-term. The Regulatory Impact 
Analysis details potential health benefits because of sodium reductions 
and added sugars limits over time, as well as information regarding the 
methodology for selecting specific limits. Sections of this rule on 
traditional Indigenous foods may have some potential health benefits 
for American Indian and Alaska Native children and allow for schools to 
serve more culturally relevant ingredients. This rule maintains the 
current milk requirements from the transitional standards rule, 
allowing all schools to offer flavored or unflavored milks to K-12 
children. USDA also maintains the requirements that at least 80 percent 
of the weekly grain offerings in school meals each week are whole 
grain-rich. This rule builds on the progress schools have already made 
in improving school meals to support healthy diets for school children 
while also allowing for operational or administrative flexibilities for 
geographic preference, meats/meat alternates at breakfast, nuts and 
seeds, and beans, peas and lentils at lunch. Minor shifts and technical 
corrections are included in other provisions, such as updating 
definitions and terminology in the regulations.
    Costs: USDA estimates this rule would cost schools between $0.02 
and $0.04 per meal or an average of $206 million annually including 
both the SBP and NSLP starting in SY 2024-2025, accounting for the fact 
that the requirements will be implemented gradually and adjusting for 
annual inflation.\168\ While some changes--such as aligning the NSLP 
snack meal pattern with that of CACFP or simplifying requirements for 
schools that choose to substitute vegetables for fruits at breakfast--
are estimated to reduce school food costs or have no cost impact, 
others are estimated to increase food costs. The costs to schools are 
mainly due to a shift in purchasing patterns and increased labor costs. 
An increase in cost due to the Buy American final rule is a result of 
additional labor and food costs. The changes in this rulemaking are 
gradual, achievable, and realistic for schools and recognize the need 
for strong nutrition requirements in school meals. There are no 
estimated changes in Federal costs due to the changes in this final 
rule, as the rule does not impact the Federal reimbursement rate for 
school meals and is not expected to significantly impact baseline 
participation.
---------------------------------------------------------------------------

    \168\ Using 2023 dollars and not adjusting for annual inflation 
results in $1.256 billion dollars over eight school years (over nine 
fiscal years) or $52 to $227 million annually ($0.03 per meal), see 
appendix.
---------------------------------------------------------------------------

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. This rule would have a 
significant impact on a substantial number of small entities.
    The requirements established by this rule apply to school 
districts, which meet the definitions of ``small governmental 
jurisdiction'' and ``small entity'' in the Regulatory Flexibility Act. 
Overall, about 60 percent of school food authorities operating child 
nutrition programs are considered ``small,'' or having less than 999 
students.\169\ Under the National School Lunch Act (NSLA, 42 U.S.C. 
1758(f)), schools participating in the school lunch or breakfast 
program are required to serve meals that are consistent with the goals 
of the most recent Dietary Guidelines and that consider the nutrient 
needs of children who may be at risk for inadequate food intake and 
food insecurity. This final rule amends 7 CFR parts 210 and 220 that 
govern school lunch and breakfast program requirements, including the 
nutrition requirements that schools are required to meet to receive 
Federal reimbursement for program meals. The changes in this final rule 
further align school nutrition requirements with the goals of the 
Dietary Guidelines for Americans, 2020-2025, consistent with statute.
---------------------------------------------------------------------------

    \169\ See Appendix A. U.S. Department of Agriculture. Results of 
USDA's Food and Nutrition Service-Administered School Food Authority 
Survey II on Supply Chain Disruption and Student Participation. July 
2023. Available at: https://fns-prod.azureedge.us/sites/default/files/resource-files/SFASurvey-II-Supply-Chain-072523.pdf.
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Significant Alternatives
    As discussed in Section 3A: Flavored Milk and Section 4: Whole 
Grains, USDA considered two proposals for the milk provision and a 
proposal and alternative for the whole grains provision.
    For milk, the proposed rule included two alternatives:
     Alternative A: Proposed to allow flavored milk (fat-free 
and low-fat) at school lunch and breakfast for high school children 
only, effective SY 2025-2026. Under this alternative, USDA proposed 
that children in grades K-8 would be limited to a variety of unflavored 
milk. The proposed regulatory text for Alternative A would allow 
flavored milk for high school children only (grades 9-12). Flavored 
milk would be subject to the new proposed added sugars limit.
     Alternative B: Proposed to continue to allow all schools 
to offer fat-free and low-fat milk, flavored and unflavored, to K-12 
children, with the new proposed added sugars limit for flavored milk.

[[Page 32045]]

    For whole grains, the proposed rule included a proposal and an 
alternative:
     The rule proposed to maintain the current requirement that 
at least 80 percent of the weekly grains offered in the school lunch 
and breakfast programs are whole grain-rich, based on ounce 
equivalents.
     The rule requested public input on an alternative that 
would require that all grains offered in the school lunch and breakfast 
programs be whole grain-rich, except that one day each school week, 
schools may offer enriched grains.
    USDA encouraged public input on the options provided for the milk 
and whole grains provisions, as well as all other aspects of the 
proposed rule. In some cases, USDA posed specific questions for public 
input to help inform the final rule. For example, as noted in Section 
2: Added Sugars, USDA requested public input on whether the proposed 
implementation dates would provide appropriate lead time to 
successfully implement the proposed added sugars limits. As noted in 
Section 4: Sodium, USDA requested input on what sodium limits would be 
achievable for schools and industry, while supporting lower-sodium 
meals for children. USDA also requested public input on the proposed 
implementation schedule, as well as the number and level of sodium 
reductions proposed in the rule. USDA indicated that the Department 
would use public input received in response to the proposed rule to 
help inform the final rule.
    USDA received 130 public comments from school districts or schools, 
as well as about 340 comments from school nutrition professionals. Some 
of these respondents provided details about their school type, and 
several addressed specific concerns of small or rural schools. For 
example, one respondent indicated that they work in a ``small school 
district'' with no central kitchen ``and not enough staff,'' and 
suggested that these factors make it very hard to do scratch cooking. 
Another respondent who noted they work at a small charter school also 
raised concerns about meal preparation, noting that they ``do not have 
the space, equipment and staff to cook meals from scratch.'' An 
advocacy group representing small and rural schools added that schools 
would need to prepare more meals from scratch to further limit sodium. 
The same respondent noted that smaller schools may not have the funds 
to hire registered dietitians to assist with menu planning. A school 
food service professional noted that ``small school systems will 
struggle to make menu adjustments'' to meet the proposed sodium 
reductions. Another school food service professional noted that in 
small schools, staff ``wear many hats'' and have limited time and 
resources. This respondent was especially concerned about further 
sodium reductions. While they expressed support for reducing sodium, 
they suggested USDA consider the impact to student participation and 
consumption of meals when determining further reductions. An advocacy 
group representing State rural education associations asserted that the 
proposed sodium limits would reduce compliant products available to 
rural schools, which would make it difficult to meet the updated sodium 
limits.
    Regarding the proposed added sugars limits, a State agency 
suggested that requiring product-based limits and a weekly limit would 
make it more difficult to successfully administer the programs, 
especially for smaller schools. An advocacy group representing rural 
schools asserted that the proposed added sugars limits and sodium 
reductions would reduce student participation, increase costs, and make 
it harder for rural schools to procure compliant products. An industry 
respondent maintained that rural schools may have an easier time 
implementing the proposed product-based added sugars limits, compared 
to the proposed weekly added sugars limit. However, a State agency 
argued that small and rural schools often face limited product options 
and may not have access to products that meet the proposed product-
based added sugars limits. Regarding the proposed limit on grain-based 
desserts at breakfast, a respondent who works at a small charter school 
asserted that USDA would need to ``come up with some solutions for what 
to serve for breakfast grains'' if grain-based desserts, such as 
toaster pastries and fruit turnovers, are limited at breakfast under 
the final rule.
    A few respondents provided input on the milk and whole grain 
proposals from the small or rural school perspective. A State agency 
noted that they have several schools where students from grades 6-12 
attend school in the same building. This State agency noted that these 
smaller schools would face challenges implementing milk Alternative A. 
For example, smaller schools may not have extra refrigeration space to 
store flavored milk during the K-5 meal service. Other State agencies 
raised similar concerns, noting that in some smaller schools, 
elementary and middle school students may share one breakfast or lunch 
period, and it would be difficult to restrict flavored milk for some 
students but not others. An advocacy group representing small and rural 
schools raised concerns about the potential decrease in student 
consumption of milk, if flavored milk is restricted.
    Regarding whole grains, one school food service professional who 
stated that they work at a ``small school with limited access to 
distributors'' supported the proposal to maintain the 80 percent whole 
grain-rich requirement. This respondent suggested the 80 percent whole 
grain-rich requirement allows them to occasionally offer enriched 
tortillas and egg noodles. A respondent that identified as a small and 
rural school agreed, stating support for the 80 percent whole-grain 
rich requirement. Another respondent representing small and rural 
schools suggested that USDA not ``confuse menu planners by changing the 
whole grain-rich requirements'' and supported maintaining the current 
80 percent whole grain-rich requirement.
    As discussed throughout the preamble, this rulemaking is based on a 
comprehensive review of the Dietary Guidelines, robust stakeholder 
input on school nutrition requirements, and lessons learned from prior 
rulemakings. With this rule, USDA aims to integrate each of these 
factors in a way that prioritizes children's health while ensuring that 
the nutrition requirements are achievable for all schools. USDA 
recognizes that small school districts, like all school districts, will 
face increased costs and potential challenges in implementing this 
rule. These costs are not significantly greater for small school 
districts than for larger ones, as implementation costs are driven 
primarily by factors other than school district size. Additionally, as 
noted, about 60 percent of school food authorities operating child 
nutrition programs are considered ``small,'' or having less than 999 
students.\170\ Considering that the majority of school food authorities 
are small, USDA expects the cost impact data presented in the 
Regulatory Impact Analysis reflects small school food authorities and 
that there would not be significant differential impacts on them as a 
result of this rule. Nevertheless, USDA does not discount the special 
challenges that some smaller school districts may face. As a group, 
small school districts may have less flexibility to adjust resources in 
response to immediate budgetary needs. As noted in public comments, 
some respondents cited challenges that

[[Page 32046]]

small school districts face with limited time and resources, which 
could make making menu changes at a rapid pace challenging. Therefore, 
USDA expects that the phased-in implementation period for meal pattern 
changes finalized in this rule will provide these school districts 
opportunity for advance planning.
---------------------------------------------------------------------------

    \170\ See appendix A. U.S. Department of Agriculture. Results of 
USDA's Food and Nutrition Service-Administered School Food Authority 
Survey II on Supply Chain Disruption and Student Participation. July 
2023. Available at: https://fns-prod.azureedge.us/sites/default/files/resource-files/SFASurvey-II-Supply-Chain-072523.pdf.
---------------------------------------------------------------------------

    In addition, USDA considered public comments from small and rural 
school districts, and organizations representing them when determining 
the final requirements. For example, as discussed in Section 3A: 
Flavored Milk, USDA recognized that implementing Alternative A would be 
operationally challenging for small schools, where children from many 
grade levels may share cafeteria space. USDA also appreciates concerns 
that respondents raised regarding a lack of refrigerated storage space 
for flavored milk in small schools. This rule finalizes milk 
Alternative B, which maintains the current requirement allowing all 
schools to offer fat-free and low-fat milk, flavored and unflavored, to 
K-12 children. As discussed in Section 4: Whole Grains, this final rule 
maintains the current requirement that at least 80 percent of the 
weekly grains offered by ounce equivalent are whole grain-rich, which 
respondents noted has been successfully implemented by many schools. 
USDA also considered respondent input on other provisions in this 
rulemaking. For example, based on stakeholder feedback, this rule does 
not finalize the proposed limit on grain-based desserts offered at 
breakfast. Additionally, based on public input, this final rule allows 
schools more time to gradually reduce sodium and includes a commitment 
from USDA to conduct a study on the potential associations between 
sodium reduction and student participation. USDA expects that this 
change from the proposed rule will make the sodium limits more 
achievable for schools, including small schools, as it will allow more 
time for menu adjustments and product reformulation. With this rule, 
USDA intends to improve the school meal nutrition requirements in a way 
that is practical and attainable for all schools.
    More detailed information about the costs associated with 
provisions of this rulemaking may be found in the Regulatory Impact 
Analysis.

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 rule has 
UMRA impacts, discussed in the Regulatory Impact Analysis conducted by 
USDA in connection with this rule which includes a cost/benefit 
analysis and explains the options considered to update the school meal 
patterns based on the Dietary Guidelines for Americans, 2020-2025.

Executive Order 12372

    The NSLP, SMP, SBP, SFSP, and CACFP are listed in the Catalog of 
Federal Domestic Assistance under NSLP No. 10.555, SMP No. 10.556, SBP 
No. 10.553, SFSP No. 10.559, 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. This 
rule has federalism impacts which are discussed below.

Prior Consultation With State Officials

    As detailed in the proposed rule, USDA received input from various 
stakeholders through listening sessions and public comments prior to 
drafting the proposed rule. USDA held over 50 listening sessions with 
stakeholder groups that represent national, State, and local 
interests.\171\ USDA also received over 8,000 public comments on the 
transitional standards final rule prior to drafting the proposed rule. 
These comments, from State agencies, advocacy groups, school districts, 
and other stakeholders, helped to inform the proposed rule. To develop 
this rule, USDA considered over 136,000 public comments received on the 
proposed rule. State agencies, school nutrition professionals, advocacy 
groups, industry respondents, professional associations, school 
districts, CACFP sponsoring organizations, dietitians, and individuals 
submitted public comments on the proposed rule.
---------------------------------------------------------------------------

    \171\ As detailed in the proposed rule, USDA held listening 
sessions with Academy of Nutrition and Dietetics, American Beverage 
Association, American Commodity Distribution Association, American 
Heart Association, Center for Science in the Public Interest, 
Education Trust, FoodCorps, Friends of the Earth, International 
Dairy Foods Association, National Congress of American Indians, 
National Indian Education Association, School Nutrition Association, 
State agencies, Urban School Food Alliance, Whole Grains Council 
members, and local school districts, including tribally-run schools, 
and others.
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Nature of Concerns and the Need To Issue This Rule

    As noted in Section 1: Background, child nutrition program 
stakeholders that commented on the proposed rule raised concerns that 
changes to the school meal patterns could negatively impact student 
participation and consumption of meals. Stakeholders also cited issues 
with product availability, suggesting that the proposed added sugars 
limits and sodium reductions would cause vendors to leave the school 
nutrition market and make it more difficult for schools to procure 
products for meals. The proposed implementation timeframes were also a 
concern for some stakeholders, who argued that schools would need more 
time to successfully implement the changes. Stakeholders also raised 
concerns about school food finances. For example, a school district 
respondent suggested that transitioning to new or updated requirements 
would involve purchasing new products, which they asserted would be 
more expensive. This respondent also raised concerns about the 
potential for reduced student participation under the updated 
requirements, which they noted could

[[Page 32047]]

negatively impact school food finances. Another respondent raised 
similar concerns in connection to the sodium proposal, suggesting that 
reduced sodium could result in less palatable meals. This respondent 
suggested that less palatable meals could lead to reduced student 
participation in school meals, which could negatively impact school 
food finances. Other respondents suggested that schools are still 
dealing with high food costs and supply chain issues or provided 
general comments asserting that more nutritious foods (such as foods 
with less added sugars) could be more expensive compared to foods that 
schools currently offer. Stakeholders from the CACFP community 
expressed concern that USDA did not adequately engage the CACFP 
community prior to publishing the proposed rule.
    USDA greatly appreciates input that child nutrition program 
stakeholders provided in advance of the proposed rule and through the 
public comment process. In developing this rule, USDA considered the 
Dietary Guidelines, robust stakeholder input, and lessons learned from 
prior rulemakings. Further, according to the National School Lunch Act 
(NSLA, 42 U.S.C. 1758(f)), schools participating in the school lunch or 
breakfast program are required to serve lunches and breakfasts that are 
consistent with the goals of the most recent Dietary Guidelines and 
that consider the nutrient needs of children who may be at risk for 
inadequate food intake and food insecurity. This rulemaking also 
advances the mission of USDA, which includes a focus on providing 
effective, science-based public policy leadership in food and 
nutrition.\172\
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    \172\ USDA's mission is: ``To serve all Americans by providing 
effective, innovative, science-based public policy leadership in 
agriculture, food and nutrition, natural resource protection and 
management, rural development, and related issues with a commitment 
to deliverable equitable and climate-smart opportunities that 
inspire and help America thrive.'' See: U.S. Department of 
Agriculture. Strategic Plan Fiscal Years 2022-2026. Available at: 
https://www.usda.gov/sites/default/files/documents/usda-fy-2022-2026-strategic-plan.pdf.
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Extent To Which We Meet Those Concerns

    Through this rulemaking, USDA is updating the school meal patterns 
in a practical and durable manner for the long-term. USDA has 
considered the impact of this rulemaking on State agencies, schools, 
and other child nutrition program operators. This rule aims to update 
the meal patterns to align with the goals of the Dietary Guidelines for 
Americans, 2020-2025 in the most effective and least burdensome manner. 
For example, while USDA considered a more restrictive milk alternative 
in the proposed rule, this rule will continue to allow schools to offer 
all K-12 students flavored milk. Similarly, while USDA considered an 
alternative approach in the proposed rule, this rule will maintain the 
current whole grains requirement for school meals, preventing State 
agencies and schools from needing to implement a new whole grains 
requirement. When compared to the proposed rule, this rule also allows 
schools even more time to gradually reduce sodium in school meals and 
does not go as far as the proposed rule. USDA has also committed to 
conducting a study on potential associations between sodium reduction 
and student participation in the school meal programs. Further, this 
rulemaking includes changes that simplify program operations, for 
example, by easing restrictions around substituting vegetables for 
fruits at breakfast; aligning crediting for nuts and seeds, and nut and 
seed butters, across child nutrition programs; allowing schools to more 
easily offer meats/meat alternates at breakfast; and providing an 
additional exception to the professional standards hiring requirements 
for medium and large local educational agencies. This rulemaking 
retains other existing regulatory provisions to the extent possible.

Executive Order 12988, Civil Justice Reform

    This 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 permits State or local agencies 
operating the school lunch or breakfast programs to establish more 
rigorous nutrition requirements or additional requirements for school 
meals that are not inconsistent with the nutritional provisions of the 
rulemaking. Such additional requirements are permissible as part of an 
effort by a State or local agency to enhance school meals or the school 
nutrition environment. To illustrate, State or local agencies are 
permitted to establish more restrictive sodium limits. The sodium 
limits are stated as maximums (e.g., <=) and could not be exceeded; 
however, lesser amounts than the maximum could be served. Likewise, 
State or local agencies are permitted to accelerate implementation of 
the dietary specification for added sugars in an effort to reduce added 
sugars in school meals at an earlier date. However, State or local 
agencies cannot, for example, allow schools to exceed the added sugars 
limits in this rulemaking as that would be inconsistent with the 
rulemaking's provisions. This rule is not intended to have retroactive 
effect. Prior to any judicial challenge to the provisions of the final 
rule, all applicable administrative procedures must be exhausted.

Civil Rights Impact Analysis

    FNS has reviewed the rule, in accordance with Departmental 
Regulation 4300-004, ``Civil Rights Impact Analysis,'' to identify and 
address any major civil rights impacts the rule might have on 
participants on the basis of age, race, color, national origin, sex 
(including gender identity and sexual orientation), or disability. Due 
to the unavailability of data, FNS is unable to determine whether this 
rule will have an adverse or disproportionate impact on protected 
classes among entities that administer and participate in Child 
Nutrition Programs. However, the FNS Civil Rights Division finds that 
the current mitigation and outreach strategies outlined in the 
regulations and this Civil Rights Impact Analysis (CRIA) provide ample 
consideration to applicants' and participants' ability to participate 
in the NSLP, SBP, SMP, and CACFP. The promulgation of this rule will 
impact school food authorities and CACFP institutions and facilities by 
updating certain program requirements, including nutrition 
requirements.
    Participants in the NSLP, SMP, SBP, and CACFP may be impacted when 
the requirements under the rule are implemented by school food 
authorities and CACFP institutions and facilities. The changes are 
expected to provide participants in NSLP, SBP, SMP, and CACFP wholesome 
and appealing meals that reflect the goals of the Dietary Guidelines 
and meet their needs and preferences.

Executive Order 13175

    Executive Order 13175 requires Federal agencies to consult and 
coordinate with Tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes. What follows is a summary of 
Tribal

[[Page 32048]]

implications are present and consultation/coordination taken to date.
    This regulation has Tribal implications. As noted in the proposed 
rule, USDA held listening sessions with Tribal stakeholders in summer 
2022, and took feedback received during those listening session into 
account when developing the proposed rule. USDA held a Tribal 
consultation on May 23, 2023, during which Tribal leaders provided 
feedback and input on the proposed rule. Tribal leaders supported 
improving children's health and nutrition, for example, by reducing 
sugars in children's diets. Regarding the term ``traditional foods,'' 
Tribal leaders supported use of the term as detailed in Section 8: 
Traditional Indigenous Foods and confirmed that it is a recognizable 
term. Tribal leaders maintained that traditional Indigenous foods can 
be more expensive to procure compared to other foods and requested 
additional reimbursement to provide traditional Indigenous foods in 
school meals. Although USDA does not have the authority to provide 
additional reimbursement, USDA appreciates Tribal leaders sharing this 
concern. If a Tribe requests additional consultation in the future, 
USDA's Office of Tribal Relations will ensure meaningful consultation 
is provided.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. Chap. 35; 5 
CFR 1320) requires that the Office of Management and Budget (OMB) 
approve all collection of information requirements by a Federal agency 
before they can be implemented. Respondents are not required to respond 
to any collection of information unless it displays a current, valid 
OMB Control Number. This rulemaking finalizes long-term school 
nutrition requirements based on the goals of the Dietary Guidelines for 
Americans, 2020-2025, robust stakeholder input, and lessons learned 
from prior rulemakings. Notably, this rulemaking gradually phases in 
added sugars limits for the school lunch and breakfast programs and in 
the Child and Adult Care Food Program (CACFP), updates total sugars 
limits for breakfast cereals and yogurt to added sugars limits. As a 
reflection of feedback from stakeholders, this rule implements a single 
sodium reduction in the school lunch and breakfast programs and commits 
to studying the potential associations between sodium reduction and 
student participation. This rulemaking addresses a variety of other 
school meal requirements, including establishing long-term milk and 
whole grain requirements. Finally, this rulemaking strengthens Buy 
American requirements. While this rulemaking takes effect school year 
(SY) 2024-2025, the Department is gradually phasing in required changes 
over time.
    In accordance with the PRA, this rule contains new information 
collection requirements, which are subject to review and approval by 
OMB. These new requirements will be added into the following 
information collections: OMB Control Number 0584-0006 7 CFR part 210 
National School Lunch Program (expiration date September 30, 2026), OMB 
Control Number 0584-0012 7 CFR part 220 (expiration date August 31, 
2025), OMB Control Number 0584-0055 Child and Adult Care Food Program 
(expiration date August 31, 2025), and OMB Control Number 0584-0280 7 
CFR part 225, Summer Food Service Program (expiration date September 
30, 2025). This rulemaking finalizes new reporting and recordkeeping 
requirements for State agencies and school food authorities 
administering the National School Lunch Program (NSLP) and School 
Breakfast Program (SBP). This rulemaking also finalizes one 
recordkeeping requirement on Summer Food Service Program (SFSP) and 
CACFP operators. The final rule contains existing information 
collections in the form of recordkeeping requirements that have been 
approved by OMB under OMB Control Number 0584-0006 7 CFR part 210 
National School Lunch Program (expiration date September 30, 2026) and 
OMB Control Number 0584-0012 7 CFR part 220 School Breakfast Program 
(expiration date August 31, 2025); however, the provisions in this rule 
do not impact these requirements or their associated burden. Therefore, 
they are not included in the discussion concerning the burden impact 
resulting from the provisions in this rulemaking. This rulemaking does 
not impact existing and approved information collection requirements.
    USDA is submitting for public comment the information collection 
burden that will result from adoption of the new recordkeeping and 
reporting requirements finalized in the rulemaking. The establishment 
of the information requirements in the rule is contingent upon OMB 
approval. When the rulemaking information collection request is 
approved, the Department will publish a separate notice in the Federal 
Register announcing OMB's approval.
    Comments on the information collection requirements addressed in 
the rule may be submitted. Comments must be received by June 24, 2024. 
Send comments to Office of Information and Regulatory Affairs, OMB, 
Attention: Desk Officer for FNS, Washington, DC 20403, Fax: 202-395-
7285, or email to [email protected]. Please also send a copy 
of your comments to School Meals Policy Division, Food and Nutrition 
Service, 1320 Braddock Place, Alexandria, VA 22314. For further 
information, please contact Marlana Bates at [email protected].
    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.
    USDA published a proposed rule on February 7, 2023 (88 FR 8050), 
and received comments from the public concerning the reporting and 
recordkeeping requirements and their associated burden. Consequently, 
USDA has revised certain provisions in the rule, and therefore has 
updated the reporting and recordkeeping information requirement burden 
estimates from the estimates reported in the proposed rule. In response 
to public input, USDA made changes to the Buy American provision which 
impacts the information collection. The rule will now gradually phase 
in the proposed non-domestic food cap of 5 percent. USDA will introduce 
a 10 percent cap in SY 2025-2026, an 8 percent cap in SY 2028-2029, and 
a 5 percent cap in SY 2031-2032. Additionally, USDA is including in 
this rule that when a school food authority purchases a food item found 
on the Federal Acquisition Regulations (FAR) 25.104 Nonavailable 
articles list, no further documentation is required. Food products from 
the FAR Nonavailable articles list must be included in the non-domestic 
food cap calculation. Despite the changes to the Buy American 
provision, the hourly burden calculations are unlikely to decrease 
substantially from a quarter of an hour per record. For the menu 
planning options for substituting vegetables for grains in Tribal 
communities, the estimated burden has

[[Page 32049]]

been extended by a quarter of an hour per record for SFSP and CACFP 
operators in response to public comment that the estimate in the 
proposed rule was too low. USDA originally estimated that it would take 
an hour to complete this requirement. Based on the public comment and 
further evaluation of the requirement and comparison to other similar 
menu planning requirements, USDA now estimates it will take an 
additional 15 minutes to complete this requirement. The revised time 
estimate for this requirement is now one hour and 15 minutes.
    The estimated numbers of responses, and burden hours for the 
information collection requirements that were included in the February 
7, 2023, proposed rule are being revised in the final rule. In 
addition, the baseline for one of the affected collections (OMB Control 
Number 0584-0006) has been revised since the issuance of the proposed 
rule. These revisions are based on updating previous information 
collections rather than creating a new collection as was in the 
proposed rule. Between the publication of the proposed rule and the 
final rule, the following ICR expired: OMB Control Number 0584-0006. 
Because this collection has since been renewed and updated with an 
expiration date of September 30, 2026, the decision was made to switch 
to revisions of previous collections rather than a new information 
collection. The number of respondents now align with those in the four 
previous information collections. Burden was also added to account for 
the changes in the NSLP and SBP, instead of a combined estimate for 
both programs for the three applicable provisions. Additionally, burden 
was added to account for menu development, which had not been 
considered in previous information collections. As a result, the number 
of responses and burden hours for this rule have increased over those 
estimated for the proposed rule.
    USDA now estimates that this rule will have an estimated 19,705 
respondents, 763,892 responses, and 635,196 burden hours. This is the 
same number of respondents, an increase of 549,934 responses, and an 
increase of 204,897 burden hours in comparison to the estimations 
included in the proposed rule. These estimates are totaled from four 
information collections, each of which is detailed in sections below. 
First, an overview of each part of the rule that adds burden is below, 
including professional standards exception, Buy American, substituting 
vegetables for grains in Tribal communities, menu planning options, and 
annualized costs.

Professional Standards Exception

    This rulemaking codifies the proposed hiring exception to allow 
State agencies to approve the hiring of an individual to serve as a 
school nutrition program director in medium (2,500 to 9,999 students) 
or large (10,000 or more students) local educational agencies, for 
individuals who have 10 years or more of school nutrition program 
experience but who do not hold a bachelor's or associate's degree.

Buy American

    The National School Lunch Act (NSLA, 42 U.S.C. 1760(n)) and program 
regulations at 7 CFR 210.21(d)(2)(i) and 220.16(d)(2)(i), require 
school food authorities to purchase domestic commodities or products 
``to the maximum extent practicable.'' This provision, known as the Buy 
American provision, was initially implemented in 1998 and supports the 
mission of the child nutrition programs, which is to serve children 
nutritious meals and support American agriculture. There are two 
limited exceptions to the Buy American provision that school food 
authorities may implement when purchasing domestic foods is not 
feasible. The exceptions apply when a product is not produced or 
manufactured in the U.S. in sufficient and reasonably available 
quantities of a satisfactory quality, or when competitive bids reveal 
the costs of a U.S. product are significantly higher than the non-
domestic product.
    The final rule maintains the current two limited exceptions to the 
Buy American provision and clarifies in regulation that it is the 
responsibility of the school food authority to determine whether an 
exception applies. In addition, in response to public comment, USDA is 
including in this rule that when a school food authority purchases a 
food item found on the Federal Acquisition Regulations (FAR) 25.104 
Nonavailable articles list, no further documentation is required. The 
Nonavailable articles list is a list of items that have been deemed not 
available in the U.S. and excepted from the Buy American statute.\173\ 
Food products from the FAR Nonavailable articles list must be included 
in the non-domestic food cap calculation. Also, in response to public 
comments that suggested a 5 percent cap is too restrictive under 
current procurement conditions, USDA will use a phased approach to 
gradually reach the proposed 5 percent of total costs per school year 
cap on non-domestic food purchases.
---------------------------------------------------------------------------

    \173\ 41 U.S.C chapter 83 is the Buy American statute that 
requires public agencies to procure articles, materials, and 
supplies that were mined, produced, or manufactured in the United 
States, substantially all from domestic components. Available at: 
https://www.acquisition.gov/far/part-25.
---------------------------------------------------------------------------

    The phased approach will be as follows:
     Beginning in SY 2025-2026, the non-domestic food cost cap 
will be 10 percent.
     Beginning in SY 2028-2029, the non-domestic food cost cap 
will be 8 percent.
     Beginning in SY 2031-2032, the non-domestic food cost cap 
will be 5 percent.
    For oversight purposes, the final rule codifies a recordkeeping 
requirement for school food authorities to maintain documentation to 
demonstrate that their non-domestic food purchases do not exceed the 
above specified annual threshold by year. This recordkeeping 
requirement would codify a requirement to maintain documentation for 
use of exceptions to the Buy American provision. While school food 
authorities may already maintain documentation to demonstrate 
compliance with the Buy American provision in accordance with guidance 
made available by USDA, the need to maintain this documentation is 
currently not discussed in the regulations governing the Buy American 
provisions. Therefore, the rule element to codify recordkeeping 
requirements to document compliance with the Buy American provision, 
including the use of exceptions to the provision, and their associated 
burden are addressed as a revision in the information collection 
request for the rule.
    Lastly, the rule requires school food authorities to include the 
Buy American provision in procurement procedures, solicitations, and 
contracts for foods and food products procured using informal and 
formal procurement methods, and in awarded contracts. These 
recordkeeping requirements are being added to the information 
collection associated with the rule.

Substituting Vegetables for Grains in Tribal Communities

    The rulemaking codifies the proposal to allow school food 
authorities that are tribally operated, operated by the Bureau of 
Indian Education, and that serve primarily American Indian or Alaska 
Native children to serve vegetables to meet the grains requirement in 
NSLP and SBP. In addition, the rulemaking codifies the proposal to 
extend this menu planning option to SFSP and CACFP sponsors,

[[Page 32050]]

institutions, and facilities that serve primarily American Indian or 
Alaska Native participants. Additionally, this rule allows all schools, 
sponsors, institutions, and facilities in Guam and Hawaii to serve 
vegetables to meet the grains or breads requirement. The menu planning 
option aims to improve the child nutrition programs for American Indian 
and Alaska Native children and build on USDA's commitment to support 
traditional foodways.

Menu Planning Options

    This rulemaking makes a variety of changes to school meal nutrition 
requirements, including to implement quantitative limits for the 
following leading sources of added sugars in school meals: breakfast 
cereals, yogurt, and flavored milk. The rulemaking will also implement 
a dietary specification limiting added sugars to less than 10 percent 
of calories per week in the school lunch and breakfast programs. USDA 
acknowledges these changes will be reflected in schools' production and 
menu records that show how meals offered at school contribute to the 
required food components and food quantities for each age/grade group 
every day.
    Longstanding recordkeeping requirements established at 7 CFR 
210.10(a)(3) and 7 CFR 220.8(a)(3) require schools to maintain menu 
records for the meals produced and served in schools participating in 
the NSLP and SBP, but additional burden must be addressed for 
developing menus. This includes developing menus that meet existing and 
updated USDA menu specifications, including but not limited to, whole 
grains, milk, sodium, and added sugars. USDA expects there to be 
additional burden in this information collection from the requirements 
to limit added sugars in the NSLP and SBP or any other changes to 
school meal nutrition requirements included in this rulemaking, 
affecting OMB Control Number 0584-0006 7 CFR part 210 National School 
Lunch Program and OMB Control Number 0584-0012 7 CFR part 220 School 
Breakfast Program.

Annualized Costs

    As a result of the implementation of the provisions in this rule, 
there will be some start-up and maintenance costs. In public comments, 
these included costs such as extra supplies or funding to implement the 
updated meal patterns, as well as updating costs to update websites, 
materials, menus, and recipes. Another potential cost for school food 
authorities detailed in public comments includes updating meal planning 
databases. Public comments also pointed to start-up costs for 
implementing the Buy American provision over time, mainly due to 
updated forms and labor associated with updating ordering procedures/
documentation.
    USDA estimates a cost of $50,000 per State agency to account for 
maintenance and start-up costs associated with the rule, and an 
additional $1000 per school food authority to account for maintenance 
of databases, menu planning, materials, and other rule related costs 
for the NSLP, under OMB Control Number 0584-0006. This would result in 
a total of $2,800,000 in costs for State agencies and $19,019,000 in 
costs for school food authorities, or $21,819,000 in total costs as a 
result of this final rule. This $21,819,000 would only be added to OMB 
Control Number 0584-0006 since these State agencies and school food 
authorities operate both the NSLP and SBP.
    For CACFP OMB Control Number 0584-0055, an additional $305,000 
should be added to account for the start-up costs associated with menu 
changes for CACFP operators. For SFSP OMB Control Number 0584-0280, an 
additional $10,000 should be added to account for the start-up costs 
associated with menu changes for SFSP operators. These totals result 
from an additional $500 per operator affected by the menu changes.

Information Collections

    Title: 7 CFR part 210 National School Lunch Program
    Form Number: None
    OMB Control Number: 0584-0006
    Expiration Date: September 30, 2026
    Type of Request: Revision of a currently approved collection
    Abstract: This is a revision of a currently approved information 
collection to add new reporting and recordkeeping information 
requirements that are discussed in the rule, into the collection. Below 
is a summary of the changes in the final rule and the accompanying 
reporting and recordkeeping requirements that will impact the burden 
that program requirements have on State governments and school food 
authorities. USDA has updated the number of responses and burden hours 
associated with the collection of information requirements included in 
the rule since publication of the proposed rule, Child Nutrition 
Programs: Revisions to Meal Patterns Consistent with the 2020 Dietary 
Guidelines for Americans, published on February 7, 2023. Revisions are 
based on adding in burden for menu development including the 
development resulting from the provisions in the new rule.

Reporting

    The changes in this rule will add new reporting requirements 
related to professional standards to the existing requirements that are 
currently approved under OMB Control Number 0584-0006.
State Agencies
    The hiring exception for professional standards introduces a 
reporting requirement at 7 CFR 210.30(b)(1)(iv) for State agencies, who 
would be required to review and respond to each request submitted on 
behalf of school food authorities. USDA estimates 56 State agencies 
would review and either approve or deny each approximately 17 requests 
received per each State agency, for a total of 951 responses, and that 
it takes approximately 30 minutes (.5 hours) to review and respond to 
each request, for a total of 476 hours. USDA estimates that this new 
requirement will add 476 burden hours and 951 responses to the 
currently approved burden for OMB Control Number 0584-0006.
School Food Authorities
    The hiring exception for professional standards adds a new 
requirement for the school food authorities at 7 CFR 210.30(b)(1)(iv). 
USDA estimates 951 school food authorities would submit 1 request to 
their respective State agencies to hire an individual to serve as the 
school nutrition program director in medium or large local educational 
agencies each year, and that each respondent will take approximately 30 
minutes (.5 hours) to develop and submit this request for a total of 
476 hours. USDA estimates that this new requirement will add an 
estimated 476 burden hours and 951 responses into the currently 
approved burden for OMB Control Number 0584-0006.

Recordkeeping

    The changes in this rule will add new recordkeeping requirements 
related to professional standards, Buy American, substituting 
vegetables for grains in Tribal communities, and menu planning options 
to the existing requirements that are currently approved under OMB 
Control Number 0584-0006.
State Agencies
    In addition to the reporting requirements associated with the 
hiring exception to allow State agencies to approve the hiring of 
individuals who do not meet the educational criteria but have 10 years 
or more of school

[[Page 32051]]

nutrition program experience to serve as the school nutrition program 
director, State agencies would be required to maintain the requests 
that the school food authorities developed and submitted to them for 
review and approval, as stated in 7 CFR 210.30(b)(1)(iv). The new 
requirement would impact an estimated 56 State agencies, who will be 
reviewing an estimated 17 requests, for 951 responses. USDA estimates 
it takes the State agencies approximately 15 minutes (.25 hours) to 
maintain each record annually, for a total of 238 hours. USDA estimates 
that this new requirement will add 238 hours and 951 responses to the 
currently approved burden for OMB Control Number 0584-0006.
School Food Authorities
    The new requirement at 7 CFR 210.30(b)(1)(iv) also requires school 
food authorities to maintain documentation of requests to hire 
individuals under the Professional Standards Exception provision. This 
requirement adds an estimated 238 burden hours and 951 responses into 
the collection. USDA estimates that the same burden estimates will be 
added to the existing burden approved for OMB Control Number 0584-0006 
once these requirements are merged into that collection.
    USDA estimates the recordkeeping requirement at 7 CFR 210.21(d)(5) 
for school food authorities to maintain documentation to demonstrate 
that their non-domestic food purchases do not exceed the proposed 
specified annual threshold will impact approximately 19,019 school food 
authorities. USDA estimates these 19,019 respondents will develop and 
maintain 10 records each year, for a total of 190,190 responses, and 
that it takes approximately 15 minutes (.25 hours) each month to 
complete the requirement for each record. This requirement adds a total 
of 47,548 annual burden hours and 190,190 responses into the 
information collection request for OMB Control Number 0584-0006. In 
addition, USDA estimates the final recordkeeping requirement at 7 CFR 
210.21(d)(3) to include the Buy American provision in procurement 
procedures, solicitations, and contracts would impact approximately 
19,019 school food authorities. USDA estimates these 19,019 respondents 
will revise their procurement procedures, solicitations, and contracts 
and maintain these records, and estimates they would spend 
approximately 10 hours each year meeting this requirement. This 
requirement would add a total of 190,190 annual burden hours and 19,019 
responses into the information collection request for OMB Control 
Number 0584-0006.
    Alongside the final provision is a requirement that the school food 
authorities using this option maintain documentation that they are 
tribally operated, are operated by the Bureau of Indian Education, or 
serve primarily American Indian or Alaska Native students. As described 
in the proposed rule, school food authorities and schools ``serving 
primarily American Indian or Alaska Native children'' include school 
food authorities and schools where American Indian or Alaska Native 
children represent the largest demographic group of enrolled children. 
This documentation would be maintained for program reviews. This 
recordkeeping requirement at 7 CFR 210.10(c)(3) establishes a 
collection of information for school food authorities that participate 
in the school meals programs and elect to implement the operational 
flexibility to serve vegetables in place of grains in school meals. 
USDA estimates 317 school food authorities operating the NSLP would 
maintain documentation each year to demonstrate schools using the menu 
planning option meet the criteria, and that it would take approximately 
1 hour to collect and maintain such documentation annually. This 
requirement for school food authorities would add an estimated 317 
annual burden hours and 317 responses into the currently approved 
burden for OMB Control Number 0584-0006.
    Another requirement in the rule includes menu planning options, in 
which school food authorities develop menu records (beyond regular menu 
maintenance) that meet updated and new USDA specifications from the 
rule, under 7 CFR 210.10(a)(3). This also includes following all 
previous rule menu specifications. USDA estimates 19,019 school food 
authorities would develop menu records in 30 minutes (0.5 hours), 10 
times per year. This requirement would add an estimated 95,095 annual 
burden hours and 190,190 responses into the currently approved burden 
for OMB Control Number 0584-0006.

Summary

    USDA estimates that the burden for the new reporting and 
recordkeeping information requirements that are impacted by this final 
rule will have 19,075 respondents, 403,520 responses, and 334,576 
burden hours. Once the information collection requests related to this 
rule is approved by OMB, USDA expects that the total information 
collection burden for OMB Control Number 0584-0006 7 CFR part 210 
National School Lunch Program will be 115,935 respondents, 48,035,516 
responses, and 10,143,277 burden hours. This is an estimated increase 
of 403,520 responses and 334,576 hours, with no increase in 
respondents, from the currently approved burden for this collection.
    Respondents (Affected Public): State Agencies (State governments), 
and School Food Authorities (local governments).
Reporting
    Estimated Number of Respondents: 1,007.
    Estimated Number of Responses per Respondent: 1.89.
    Estimated Total Annual Responses: 1,902.
    Estimated Time per Response: 30 minutes (.50 hours).
    Estimate Total Annual Burden on Respondents: 951 hours.
Recordkeeping
    Estimated Number of Respondents: 19,075.
    Estimated Number of Responses per Respondent: 21.05.
    Estimated Total Annual Responses: 401,618.
    Estimated Time per Response: Approximately 50 minutes (0.83 hours).
    Estimate Total Annual Burden on Respondents: 333,625.
BILLING CODE 3410-30-P

[[Page 32052]]

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[[Page 32053]]


[GRAPHIC] [TIFF OMITTED] TR25AP24.088


[[Page 32054]]


[GRAPHIC] [TIFF OMITTED] TR25AP24.089

[GRAPHIC] [TIFF OMITTED] TR25AP24.090

BILLING CODE 3410-30-C
    Title: 7 CFR part 220, School Breakfast Program.
    Form Number: None.
    OMB Control Number: 0584-0012.
    Expiration Date: August 31, 2025.
    Type of Request: Revision of a currently approved collection.
    Abstract: This is a revision of a currently approved information 
collection, that adds new recordkeeping information requirements that 
are discussed in the final rule into the collection. Below is a summary 
of the changes in the final rule and the accompanying recordkeeping 
requirements that will impact the burden that program requirements have 
on school food authorities. The burden was separated out for the SBP 
from the NSLP, and burden hours were added to account for menu 
development, both of which added additional recordkeeping burden hours.

Recordkeeping

    The changes in this rule will add new recordkeeping requirements 
related to Buy American, substituting vegetables for grains in Tribal 
communities, and menu planning options to the existing requirements 
that are currently approved under OMB Control Number 0584-0012.
School Food Authorities
    USDA estimates the requirement at 7 CFR 220.16(d)(5) for school 
food authorities to maintain documentation to demonstrate that their 
non-domestic food purchases do not exceed the proposed specified annual 
threshold will impact approximately 17,117 school food authorities. 
USDA estimates these 17,117 respondents will develop and maintain 10 
records each year, for a total of 171,170 responses, and that it takes 
approximately 15 minutes (.25 hours) each month to complete the 
requirement for each record. This requirement adds a total of 42,793 
annual burden hours and 171,170 responses into the currently approved 
burden for OMB Control Number 0584-0012.
    USDA estimates the requirement at 7 CFR 220.16(d)(3) to include the 
Buy American provision in procurement procedures, solicitations, and 
contracts would impact approximately 17,117 school food authorities. 
USDA estimates these 17,117 respondents will revise their procurement 
procedures, solicitations, and contracts and maintain these records, 
and estimates they would spend approximately 10 hours each year meeting 
this requirement. This requirement would add a total of 171,170 annual 
burden hours and 17,117 responses into the currently approved burden 
for OMB Control Number 0584-0012.
    This requirement at 7 CFR 220.8(c)(3) establishes a collection of 
information for school food authorities that participate in the school 
meals programs and elect to implement the operational flexibility to 
serve vegetables in place of grains in school meals. USDA estimates 285 
school food authorities operating the SBP would maintain documentation 
each year to demonstrate schools using the menu planning option meet 
the criteria, and that it would take approximately 1 hour to collect 
and maintain such documentation annually. USDA estimates that this new 
requirement for school food authorities

[[Page 32055]]

would add an estimated 285 annual burden hours and 285 responses into 
the currently approved burden for OMB Control Number 0584-0012.
    Another requirement in the rule, includes menu planning options, in 
which school food authorities develop menu records (beyond regular menu 
maintenance) that meet updated and new USDA specifications from the 
rule, under 7 CFR 220.8(a)(3). This also includes following all 
previous rule menu specifications. USDA estimates 17,117 school food 
authorities would develop breakfast menu records in 30 minutes (0.5 
hours), 10 times per year. This requirement would add an estimated 
85,585 annual burden hours and 171,170 responses into the currently 
approved burden for OMB Control Number 0584-0012.
Summary
    USDA estimates that the burden for the new recordkeeping 
information requirements that are impacted by this final rule will have 
17,117 respondents, 359,742 responses, and 299,833 burden hours. Once 
the information collection requests related to this rule is approved by 
OMB, USDA expects that the total information collection burden for OMB 
Control Number 0584-0012 7 CFR part 220 School Breakfast Program will 
be 105,700 respondents, 33,462,278 responses, and 4,036,508 burden 
hours. This is an estimated increase of 359,742 responses and 299,833 
hours, with no increase in respondents, from the currently approved 
burden for this collection.
    Respondents (Affected Public): School Food Authorities (local 
governments).
Recordkeeping
    Estimated Number of Respondents: 17,117.
    Estimated Number of Responses per Respondent: 21.02.
    Estimated Total Annual Responses: 359,742.
    Estimated Time per Response: Approximately 50 minutes (0.83 hours).
    Estimate Total Annual Burden on Respondents: 299,833.
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[[Page 32057]]


[GRAPHIC] [TIFF OMITTED] TR25AP24.092

BILLING CODE 3410-30-C
    Title: Child and Adult Care Food Program.
    Form Number: None.
    OMB Control Number: 0584-0055.
    Expiration Date: August 31, 2025.
    Type of Request: Revision of a currently approved collection.
    Abstract: This is a revision of a currently approved information 
collection, that adds new recordkeeping information requirements that 
are discussed in the final rule into the collection. Below is a summary 
of the changes in the final rule and the accompanying recordkeeping 
requirements that will impact the burden that program requirements have 
on program operators in the CACFP. Burden was split up by institutions 
and facilities for the menu planning options, which is an update from 
the proposed rule, in which estimates were combined. In response to 
public comment, time to maintain documentation was added to estimates 
from the proposed rule.

Recordkeeping

    The changes in this rule will add new recordkeeping requirements 
related to substituting vegetables for grains in Tribal communities to 
the existing requirements that are currently approved under OMB Control 
Number 0584-0055.
CACFP--Businesses
    The provision for substituting grains for vegetables in Tribal 
communities adds a new requirement for CACFP businesses (facilities and 
institutions) serving primarily American Indian or Alaska Native 
participants and electing to implement this menu planning option. CACFP 
operators electing to serve vegetables to meet the grains requirement 
under this provision are also required to maintain documentation 
demonstrating that the site qualifies for the menu planning option.
Institutions
    USDA estimates the recordkeeping requirement at 7 CFR 226.20(f) 
would require approximately 70 institutions to collect and maintain 
documentation each year to demonstrate that the site serves primarily 
American Indian or Alaska Native participants, and that it takes 
approximately 1.25 hours to collect and maintain such documentation. 
USDA estimates this collection of information would add an estimated 88 
annual burden hours and 70 responses for CACFP operators and the 
information collection request associated with this provision under OMB 
Control Number 0584-0055.
Facilities
    USDA estimates the recordkeeping requirement at 7 CFR 226.20(f) 
would require approximately 540 facilities to collect and maintain 
documentation each year to demonstrate that the site serves primarily 
American Indian or Alaska Native participants, and that it takes 
approximately 1.25 hours to collect and maintain such documentation. 
USDA estimates this collection of information would add an estimated 
675 annual burden hours and 540 responses for CACFP operators and the 
information collection request associated with this provision under OMB 
Control Number 0584-0055.
Summary
    USDA estimates that the burden related to the new recordkeeping 
information requirements that are discussed in this final rule will 
have 610 respondents, 610 responses, and 763 burden hours. Once the 
information collection requests related to this rule is approved by 
OMB, USDA expects that the total information collection burden for OMB 
Control Number 0584-0055 Child and Adult Care Food Program will be 
3,794,949 respondents, 16,213,703 responses, and 4,213,973 burden 
hours. This is an estimated increase of 610 responses and 763 burden 
hours from the currently approved burden for this collection, with no 
change in the number of respondents.
    Respondents (Affected Public): Child and Adult Care Food Program 
(businesses, which include institutions and facilities).
Recordkeeping
    Estimated Number of Respondents: 610.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Responses: 610.
    Estimated Time per Response: Approximately 75 minutes (1.25 hours).
    Estimate Total Annual Burden on Respondents: 763.
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[[Page 32059]]


[GRAPHIC] [TIFF OMITTED] TR25AP24.094

BILLING CODE 3410-30-C
    Title: 7 CFR part 225, Summer Food Service Program.
    Form Number: None.
    OMB Control Number: 0584-0280.
    Expiration Date: September 30, 2025.
    Type of Request: Revision of a currently approved collection.
    Abstract: This is a revision of a currently approved information 
collection that adds a recordkeeping information requirement that is 
discussed in the final rule into the collection. Below is a summary of 
the changes in the final rule and the accompanying recordkeeping 
requirement that will impact the burden that program requirements have 
on the program operators in the SFSP. Substituting vegetables for 
grains in Tribal communities is the only provision in the final rule 
adding burden to this collection.

Recordkeeping

    The changes in this rule will add a new recordkeeping requirement 
related to substituting vegetables for grains in Tribal communities to 
the existing requirements that are currently approved under OMB Control 
Number 0584-0280.
Businesses (Operators)
    The provision to substitute grains for vegetable establishes a 
recordkeeping requirement for SFSP operators serving primarily American 
Indian or Alaska Native participants and electing to implement this 
menu planning option. SFSP operators electing to serve vegetables to 
meet the grains requirement under this provision are also required to 
maintain documentation demonstrating that the site qualifies for the 
menu planning option.
    USDA estimates the recordkeeping requirement under 7 CFR 
225.16(f)(3) would require approximately 20 SFSP operators to collect 
and maintain documentation each year to demonstrate that the site 
serves primarily American Indian or Alaska Native participants, and 
that it takes approximately 1.25 hours to collect and maintain such 
documentation, for 25 hours. USDA estimates that this new requirement 
would add 25 annual burden hours and 20 responses into the burden for 
OMB Control Number 0584-0280.
Summary
    As a result of the changes outlined in this rulemaking, USDA 
estimates that the burden for rule-related requirements for OMB Control 
Number 0584-0280 will be 20 respondents, 20 responses, and 25 burden 
hours. Once the information collection requests related to this rule is 
approved by OMB, USDA expects that the total information collection 
burden for OMB Control Number 0584-0280 Summer Food Service Program 
will be 63,942 respondents, 391,815 responses, and 462,724 burden 
hours. This is an estimated increase of 20 responses and 25 burden 
hours from the currently approved burden for this collection, with no 
change in the number of respondents.
    Respondents (Affected Public): Summer Food Service Program 
operators (non-profit institutions and camps).
Recordkeeping
    Estimated Number of Respondents: 20.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Responses: 20.
    Estimated Time per Response: Approximately 75 minutes (1.25 hours).
    Estimate Total Annual Burden on Respondents: 25.
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[[Page 32060]]

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[GRAPHIC] [TIFF OMITTED] TR25AP24.096

BILLING CODE 3410-30-C

E-Government Act Compliance

    The Department is committed to complying with the E-Government Act, 
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

[[Page 32061]]

requirements, School breakfast and lunch programs.

7 CFR Part 225

    Food assistance programs, Grant programs--health, Infants and 
children, Labeling, Reporting and recordkeeping requirements.

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, FNS amends 7 CFR parts 210, 215, 220, 225, and 226 as 
follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

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

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

0
2. Revise and republish Sec.  210.2 to read as follows:


Sec.  210.2  Definitions.

    For the purposes of this part:
    2 CFR part 200, means the Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards published by OMB. 
The part reference covers applicable: Acronyms and Definitions (subpart 
A), General Provisions (subpart B), Post Federal Award Requirements 
(subpart D), Cost Principles (subpart E), and Audit Requirements 
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of 
Federal Awards (subpart C) does not apply to the National School Lunch 
Program).
    Act means the National School Lunch Act, as amended.
    Afterschool care program means a program providing organized child 
care services to enrolled school-age children afterschool hours for the 
purpose of care and supervision of children. Those programs must be 
distinct from any extracurricular programs organized primarily for 
scholastic, cultural or athletic purposes.
    Applicable credits shall have the meaning established in 2 CFR part 
200 and USDA implementing regulations 2 CFR parts 400 and 415.
    Attendance factor means a percentage developed no less than once 
each school year which accounts for the difference between enrollment 
and attendance. The attendance factor may be developed by the school 
food authority, subject to State agency approval, or may be developed 
by the State agency. In the absence of a local or State attendance 
factor, the school food authority will use an attendance factor 
developed FNS. When taking the attendance factor into consideration, 
school food authorities will assume that all children eligible for free 
and reduced price lunches attend school at the same rate as the general 
school population.
    Average Daily Participation means the average number of children, 
by eligibility category, participating in the Program each operating 
day. These numbers are obtained by dividing:
    (1) The total number of free lunches claimed during a reporting 
period by the number of operating days in the same period;
    (2) The total number of reduced price lunches claimed during a 
reporting period by the number of operating days in the same period; 
and
    (3) The total number of paid lunches claimed during a reporting 
period by the number of operating days in the same period.
    Child means:
    (1) A student of high school grade or under as determined by the 
State educational agency, who is enrolled in an educational unit of 
high school grade or under as described in paragraphs (1) and (2) of 
the definition of ``School'' in this section, including students with a 
disability who participate in a school program established for persons 
with disabilities;
    (2) A person under 21 chronological years of age who is enrolled in 
an institution or center as described in paragraph (3) of the 
definition of ``School'' in this section; or
    (3) For afterschool care programs, persons aged 18 and under at the 
start of the school year, and persons of any age with a disability who 
participate in a school program established for persons with 
disabilities.
    Child with a disability means any child who has a physical or 
mental impairment that substantially limits one or more major life 
activities of such individual, has a record of such an impairment, or 
has been regarded as having such an impairment.
    Commodity School Program means the Program under which 
participating schools operate a nonprofit lunch program in accordance 
with this part and receive donated food assistance in lieu of general 
cash assistance. Schools participating in the Commodity School Program 
will also receive special cash and donated food assistance in 
accordance with Sec.  210.4(c).
    Contractor means a commercial enterprise, public or nonprofit 
private organization or individual that enters into a contract with a 
school food authority.
    Cost reimbursable contract means a contract that provides for 
payment of incurred costs to the extent prescribed in the contract, 
with or without a fixed fee.
    Days means calendar days unless otherwise specified.
    Department means the United States Department of Agriculture.
    Distributing agency means a State agency which enters into an 
agreement with the Department for the distribution to schools of 
donated foods pursuant to part 250 of this chapter.
    Donated foods means food commodities donated by the Department for 
use in nonprofit lunch programs.
    Fiscal year means a period of 12 calendar months beginning October 
1 of any year and ending with September 30 of the following year.
    Fixed fee means an agreed upon amount that is fixed at the 
inception of the contract. In a cost reimbursable contract, the fixed 
fee includes the contractor's direct and indirect administrative costs 
and profit allocable to the contract.
    Fixed-price contract means a contract that charges a fixed cost per 
meal, or a fixed cost for a certain time period. Fixed-price contracts 
may include an economic price adjustment tied to a standard index.
    FNS means the Food and Nutrition Service, United States Department 
of Agriculture.
    FNSRO means the appropriate Regional Office of the Food and 
Nutrition Service of the Department.
    Food item means a specific food offered within a food component.
    Food service management company means a commercial enterprise or a 
nonprofit organization which is or may be contracted with by the school 
food authority to manage any aspect of the school food service.
    Free lunch means a lunch served under the Program to a child from a 
household eligible for such benefits under part 245 of this chapter and 
for which neither the child nor any member of the household pays or is 
required to work.
    Local educational agency means a public board of education or other 
public or private nonprofit authority legally constituted within a 
State for either administrative control or direction of, or to perform 
a service function for, public or private nonprofit elementary schools 
or secondary schools in a city, county, township, school district, or 
other political subdivision of a State, or for a

[[Page 32062]]

combination of school districts or counties that is recognized in a 
State as an administrative agency for its public or private nonprofit 
elementary schools or secondary schools. The term also includes any 
other public or private nonprofit institution or agency having 
administrative control and direction of a public or private nonprofit 
elementary school or secondary school, including residential child care 
institutions, Bureau of Indian Affairs schools, and educational service 
agencies and consortia of those agencies, as well as the State 
educational agency in a State or territory in which the State 
educational agency is the sole educational agency for all public or 
private nonprofit schools.
    Lunch means a meal service that meets the meal requirements in 
Sec.  210.10 for lunches.
    Meal component means one of the food groups which comprise 
reimbursable meals. The meal components are: fruits, vegetables, 
grains, meats/meat alternates, and fluid milk.
    National School Lunch Program means the Program under which 
participating schools operate a nonprofit lunch program in accordance 
with this part. General and special cash assistance and donated food 
assistance are made available to schools in accordance with this part.
    Net cash resources means all monies, as determined in accordance 
with the State agency's established accounting system, that are 
available to or have accrued to a school food authority's nonprofit 
school food service at any given time, less cash payable. Such monies 
may include, but are not limited to, cash on hand, cash receivable, 
earnings on investments, cash on deposit and the value of stocks, bonds 
or other negotiable securities.
    Nonprofit means, when applied to schools or institutions eligible 
for the Program, exempt from income tax under section 501(c)(3) of the 
Internal Revenue Code of 1986.
    Nonprofit school food service means all food service operations 
conducted by the school food authority principally for the benefit of 
schoolchildren, all of the revenue from which is used solely for the 
operation or improvement of such food services.
    Nonprofit school food service account means the restricted account 
in which all of the revenue from all food service operations conducted 
by the school food authority principally for the benefit of school 
children is retained and used only for the operation or improvement of 
the nonprofit school food service. This account will include, as 
appropriate, non-Federal funds used to support paid lunches as provided 
in Sec.  210.14(e), and proceeds from nonprogram foods as provided in 
Sec.  210.14(f).
    OIG means the Office of the Inspector General of the Department.
    Paid lunch means a lunch served to children who are either not 
certified for or elect not to receive the free or reduced price 
benefits offered under part 245 of this chapter. The Department 
subsidizes each paid lunch with both general cash assistance and 
donated foods. The prices for paid lunches in a school food authority 
must be determined in accordance with Sec.  210.14(e).
    Point of Service means that point in the food service operation 
where a determination can accurately be made that a reimbursable free, 
reduced price, or paid lunch has been served to an eligible child.
    Program means the National School Lunch Program and the Commodity 
School Program.
    Reduced price lunch means a lunch served under the Program:
    (1) To a child from a household eligible for such benefits under 
part 245 of this chapter;
    (2) For which the price is less than the school food authority 
designated full price of the lunch and which does not exceed the 
maximum allowable reduced price specified under part 245 of this 
chapter; and
    (3) For which neither the child nor any member of the household is 
required to work.
    Reimbursement means Federal cash assistance including advances paid 
or payable to participating schools for lunches meeting the 
requirements of Sec.  210.10 and served to eligible children.
    Revenue, when applied to nonprofit school food service, means all 
monies received by or accruing to the nonprofit school food service in 
accordance with the State agency's established accounting system 
including, but not limited to, children's payments, earnings on 
investments, other local revenues, State revenues, and Federal cash 
reimbursements.
    School means:
    (1) An educational unit of high school grade or under, recognized 
as part of the educational system in the State and operating under 
public or nonprofit private ownership in a single building or complex 
of buildings;
    (2) Any public or nonprofit private classes of preprimary grade 
when they are conducted in the aforementioned schools; or
    (3) Any public or nonprofit private residential child care 
institution, or distinct part of such institution, which operates 
principally for the care of children, and, if private, is licensed to 
provide residential child care services under the appropriate licensing 
code by the State or a subordinate level of government, except for 
residential summer camps which participate in the Summer Food Service 
Program for Children, Job Corps centers funded by the Department of 
Labor, and private foster homes.
    School food authority means the governing body which is responsible 
for the administration of one or more schools; and has the legal 
authority to operate the Program therein or be otherwise approved by 
FNS to operate the Program.
    School nutrition program directors are those individuals directly 
responsible for the management of the day-to-day operations of school 
food service for all participating schools under the jurisdiction of 
the school food authority.
    School nutrition program managers are those individuals directly 
responsible for the management of the day-to-day operations of school 
food service for a participating school(s).
    School nutrition program staff are those individuals, without 
managerial responsibilities, involved in day-to-day operations of 
school food service for a participating school(s).
    School week means the period of time used to determine compliance 
with the meal requirements in Sec.  210.10. The period will be a normal 
school week of five consecutive days; however, to accommodate shortened 
weeks resulting from holidays and other scheduling needs, the period 
must be a minimum of three consecutive days and a maximum of seven 
consecutive days. Weeks in which school lunches are offered less than 
three times must be combined with either the previous or the coming 
week.
    School year means a period of 12 calendar months beginning July 1 
of any year and ending June 30 of the following year.
    Seamless Summer Option means the meal service alternative 
authorized by Section 13(a)(8) of the Richard B. Russell National 
School Lunch Act, 42 U.S.C. 1761(a)(8), under which public or nonprofit 
school food authorities participating in the National School Lunch 
Program or School Breakfast Program offer meals at no cost to children 
during the traditional summer vacation periods and, for year-round 
schools, vacation periods longer than 10 school days.
    Secretary means the Secretary of Agriculture.

[[Page 32063]]

    State means any of the 50 States, District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as 
applicable, American Samoa and the Commonwealth of the Northern 
Marianas.
    State agency means:
    (1) The State educational agency;
    (2) Any other agency of the State which has been designated by the 
Governor or other appropriate executive or legislative authority of the 
State and approved by the Department to administer the Program in 
schools, as specified in Sec.  210.3(b) of this chapter; or
    (3) The FNSRO, where the FNSRO administers the Program as specified 
in Sec.  210.3(c) of this chapter.
    State educational agency means, as the State legislature may 
determine,
    (1) The chief State school officer (such as the State 
Superintendent of Public Instruction, Commissioner of Education, or 
similar officer), or
    (2) A board of education controlling the State department of 
education.
    State licensed healthcare professional means an individual who is 
authorized to write medical prescriptions under State law. This may 
include, but is not limited to, a licensed physician, nurse 
practitioner, or physician's assistant, depending on State law.
    Tofu means a soybean-derived food, made by a process in which 
soybeans are soaked, ground, mixed with water, heated, filtered, 
coagulated, and formed into cakes. Basic ingredients are whole 
soybeans, one or more food-grade coagulants (typically a salt or an 
acid), and water. Tofu products must conform to FNS guidance to count 
toward the meats/meat alternates component.
    USDA implementing regulations include the following: 2 CFR part 
400, Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards; 2 CFR part 415, General Program 
Administrative Regulations; 2 CFR part 416, General Program 
Administrative Regulations for Grants and Cooperative Agreements to 
State and Local Governments; and 2 CFR part 418, New Restrictions on 
Lobbying.
    Whole grain-rich is the term designated by FNS to indicate that the 
grain content of a product is between 50 and 100 percent whole grain 
with any remaining grains being enriched.
    Whole grains means grains that consist of the intact, ground, 
cracked, or flaked grain seed whose principal anatomical components--
the starchy endosperm, germ and bran--are present in the same relative 
proportions as they exist in the intact grain seed.
    Yogurt means commercially prepared coagulated milk products 
obtained by the fermentation of specific bacteria, that meet milk fat 
or milk solid requirements and to which flavoring foods or ingredients 
may be added. These products are covered by the Food and Drug 
Administration's Definition and Standard of Identity for yogurt, 21 CFR 
131.200, and low-fat yogurt and non-fat yogurt covered as a 
standardized food under 21 CFR 130.10.

0
3. In Sec.  210.3, revise and republish paragraph (a) to read as 
follows:


Sec.  210.3  Administration.

    (a) FNS. FNS will act on behalf of the Department in the 
administration of the Program.
* * * * *

0
4. In Sec.  210.4, revise and republish paragraphs (a) and (b)(3) and 
(4) to read as follows:


Sec.  210.4  Cash and donated food assistance to States.

    (a) General. To the extent funds are available, FNS will make cash 
assistance available in accordance with the provisions of this section 
to each State agency for lunches and afterschool snacks served to 
children under the National School Lunch and Commodity School Programs. 
To the extent donated foods are available, FNS will provide donated 
food assistance to distributing agencies for each lunch served in 
accordance with the provisions of this part and part 250 of this 
chapter.
    (b) * * *
    (3) Cash assistance for afterschool snacks. For those eligible 
schools (as defined in Sec.  210.10(o)(1)) operating afterschool care 
programs and electing to serve afterschool snacks to enrolled children, 
funds will be made available to each State agency, each school year in 
an amount no less than the sum of the products obtained by multiplying:
    (i) The number of afterschool snacks served in the afterschool care 
program within the State to children from families that do not satisfy 
the income standards for free and reduced price school meals by 2.75 
cents;
    (ii) The number of afterschool snacks served in the afterschool 
care program within the State to children from families that satisfy 
the income standard for free school meals by 30 cents; and
    (iii) The number of afterschool snacks served in the afterschool 
care program within the State to children from families that satisfy 
the income standard for reduced price school meals by 15 cents.
    (4) Annual adjustments for cash assistance for afterschool snacks. 
The rates in paragraph (b)(3) of this section are the base rates 
established in August 1981 for the Child and Adult Care Food Program 
(CACFP). FNS will prescribe annual adjustments to these rates in the 
same Notice as the National Average Payment Rates for lunches. These 
adjustments will ensure that the reimbursement rates for afterschool 
snacks served under this part are the same as those implemented for 
afterschool snacks in the CACFP.
* * * * *

0
5. In Sec.  210.7, revise and republish paragraphs (a), (c) 
introductory text, (c)(1), (d), and (e) to read as follows:


Sec.  210.7  Reimbursement for school food authorities.

    (a) General. Reimbursement payments to finance nonprofit school 
food service operations will be made only to school food authorities 
operating under a written agreement with the State agency. Subject to 
the provisions of Sec.  210.8(c), such payments may be made for lunches 
and afterschool snacks served in accordance with provisions of this 
part and part 245 of this chapter in the calendar month preceding the 
calendar month in which the agreement is executed. These reimbursement 
payments include general cash assistance for all lunches served to 
children under the National School Lunch Program and special cash 
assistance payments for free or reduced-price lunches served to 
children determined eligible for such benefits under the National 
School Lunch and Commodity School Programs. Reimbursement payments will 
also be made for afterschool snacks served to eligible children in 
afterschool care programs in accordance with the rates established in 
Sec.  210.4(b)(3). Approval will be in accordance with part 245.
* * * * *
    (c) Reimbursement limitations. To be entitled to reimbursement 
under this part, each school food authority must ensure that Claims for 
Reimbursement are limited to the number of free, reduced price, and 
paid lunches and afterschool snacks that are served to children 
eligible for free, reduced price, and paid lunches and afterschool 
snacks, respectively, for each day of operation.
    (1) Lunch count system. To ensure that the Claim for Reimbursement 
accurately reflects the number of lunches and afterschool snacks served 
to eligible children, the school food authority must, at a minimum:
    (i) Correctly approve each child's eligibility for free and reduced 
price lunches and afterschool snacks based on

[[Page 32064]]

the requirements prescribed under part 245 of this chapter;
    (ii) Maintain a system to issue benefits and to update the 
eligibility of children approved for free or reduced price lunches and 
afterschool snacks. The system must:
    (A) Accurately reflect eligibility status as well as changes in 
eligibility made after the initial approval process due to verification 
findings, transfers, reported changes in income or household size, 
etc.; and
    (B) Make the appropriate changes in eligibility after the initial 
approval process on a timely basis so that the mechanism the school 
food authority uses to identify currently eligible children provides a 
current and accurate representation of eligible children. Changes in 
eligibility which result in increased benefit levels must be made as 
soon as possible but no later than 3 operating days of the date the 
school food authority makes the final decision on a child's eligibility 
status. Changes in eligibility which result in decreased benefit levels 
must be made as soon as possible but no later than 10 operating days of 
the date the school food authority makes the final decision on the 
child's eligibility status;
    (iii) Base Claims for Reimbursement on lunch counts, taken daily at 
the point of service, which correctly identify the number of free, 
reduced price and paid lunches served to eligible children;
    (iv) Correctly record, consolidate and report those lunch and 
afterschool snack counts on the Claim for Reimbursement; and
    (v) Ensure that Claims for Reimbursement do not request payment for 
any excess lunches produced, as prohibited in Sec.  210.10(a)(2), or 
non-Program lunches (i.e., a la carte or adult lunches) or for more 
than one afterschool snack per child per day.
* * * * *
    (d) Performance-based cash assistance. The State agency must 
provide performance-based cash assistance as authorized under Sec.  
210.4(b)(1) for lunches served in school food authorities certified by 
the State agency to be in compliance with meal pattern and nutrition 
requirements set forth in Sec.  210.10 and, if the school food 
authority participates in the School Breakfast Program (part 220 of 
this chapter), Sec.  220.8 of this chapter, as applicable. State 
agencies must establish procedures to certify school food authorities 
for performance-based cash assistance in accordance with guidance 
established by FNS. Such procedures must ensure State agencies:
    (1) Make certification procedures readily available to school food 
authorities and provide guidance necessary to facilitate the 
certification process.
    (2) Require school food authorities to submit documentation to 
demonstrate compliance with meal pattern requirements set forth in 
Sec.  210.10 and Sec.  220.8 of this chapter, as applicable. Such 
documentation must reflect meal service at or about the time of 
certification.
    (3) State agencies must review certification documentation 
submitted by the school food authority to ensure compliance with meal 
pattern requirements set forth in Sec.  210.10, or Sec.  220.8 of this 
chapter, as applicable. For certification purposes, State agencies 
should consider any school food authority compliant:
    (i) If when evaluating daily and weekly range requirements for 
grains and meat/meat alternates, the certification documentation shows 
compliance with the daily and weekly minimums for these two components, 
regardless of whether the school food authority has exceeded the 
maximums for the same components.
    (ii) If when evaluating the service of frozen fruit, the school 
food authority serves products that contain added sugar.
    (4) Certification procedures must ensure that no performance-based 
cash assistance is provided to school food authorities for meals served 
prior to October 1, 2012.
    (5) Within 60 calendar days of a certification submission or as 
otherwise authorized by FNS, review submitted materials and notify 
school food authorities of the certification determination, the date 
that performance-based cash assistance is effective, and consequences 
for non-compliance,
    (6) Disburse performance-based cash assistance for all lunches 
served beginning with the start of certification provided that 
documentation reflects meal service in the calendar month the 
certification materials are submitted or, in the month preceding the 
calendar month of submission.
    (e) Reimbursements for afterschool snacks. The State agency will 
reimburse the school food authority for afterschool snacks served in 
eligible schools (as defined in Sec.  210.10(o)(1)) operating 
afterschool care programs under the National School Lunch Program 
(NSLP) in accordance with the rates established in Sec.  210.4(b).

0
6. In Sec.  210.8, revise and republish paragraphs (c) and (d) to read 
as follows:


Sec.  210.8  Claims for reimbursement.

* * * * *
    (c) Content of claim. The Claim for Reimbursement must include data 
in sufficient detail to justify the reimbursement claimed and to enable 
the State agency to provide the Report of School Program Operations 
required under Sec.  210.5(d). Such data must include, at a minimum, 
the number of free, reduced price, and paid lunches and afterschool 
snacks served to eligible children. The claim must be signed by a 
school food authority official.
    (1) Consolidated claim. The State agency may authorize a school 
food authority to submit a consolidated Claim for Reimbursement for all 
schools under its jurisdiction, provided that, the data on each 
school's operations required in this section are maintained on file at 
the local office of the school food authority and the claim separates 
consolidated data for commodity schools from data for other schools. 
Unless otherwise approved by FNS, the Claim for Reimbursement for any 
month must include only lunches and afterschool snacks served in that 
month except if the first or last month of Program operations for any 
school year contains 10 operating days or less, such month may be 
combined with the Claim for Reimbursement for the appropriate adjacent 
month. However, Claims for Reimbursement may not combine operations 
occurring in two fiscal years. If a single State agency administers any 
combination of the Child Nutrition Programs, a school food authority 
will be able to use a common claim form with respect to claims for 
reimbursement for meals served under those programs.
    (2) October data. For the month of October, the State agency must 
also obtain, either through the Claim for Reimbursement or other means, 
the total number of children approved for free lunches and afterschool 
snacks, the total number of children approved for reduced price lunches 
and afterschool snacks, and the total number of children enrolled in 
the school food authority as of the last day of operation in October. 
The school food authority must submit this data to the State agency no 
later than December 31 of each year. State agencies may establish 
shorter deadlines at their discretion. In addition, the State agency 
may require school food authorities to provide this data for a more 
current month if for use in the State agency claims review process.
    (d) Advance funds. The State agency may advance funds available for 
the Program to a school food authority in an amount equal to the amount 
of reimbursement estimated to be needed for one month's operation. 
Following the receipt of claims, the State agency

[[Page 32065]]

will make adjustments, as necessary, to ensure that the total amount of 
payments received by the school food authority for the fiscal year does 
not exceed an amount equal to the number of lunches and afterschool 
snacks by reimbursement type served to children times the respective 
payment rates assigned by the State in accordance with Sec.  210.7(b). 
The State agency must recover advances of funds to any school food 
authority failing to comply with the 60-day claim submission 
requirements in paragraph (b) of this section.

0
7. In Sec.  210.9, revise and republish paragraphs (b)(21) and (c) to 
read as follows:


Sec.  210.9  Agreement with State agency.

* * * * *
    (b) * * *
    (21) No later than December 31 of each year, provide the State 
agency with a list of all schools under its jurisdiction in which 50 
percent or more of enrolled children have been determined eligible for 
free or reduced price meals as of the last operating day the preceding 
October. The State agency may designate a month other than October for 
the collection of this information, in which case the list must be 
provided to the State agency within 60 calendar days following the end 
of the month designated by the State agency. In addition, each school 
food authority must provide, when available for the schools under its 
jurisdiction, and upon the request of a sponsoring organization of day 
care homes of the Child and Adult Care Food Program, information on the 
boundaries of the attendance areas for the schools identified as having 
50 percent or more of enrolled children certified eligible for free or 
reduced price meals.
    (c) Afterschool care requirements. Those school food authorities 
with eligible schools (as defined in Sec.  210.10(o)(1)) that elect to 
serve afterschool snacks during afterschool care programs, must agree 
to:
    (1) Serve afterschool snacks which meet the minimum requirements 
prescribed in Sec.  210.10;
    (2) Price the afterschool snack as a unit;
    (3) Serve afterschool snacks free or at a reduced price to all 
children who are determined by the school food authority to be eligible 
for free or reduced price school meals under part 245 of this chapter;
    (4) If charging for meals, the charge for a reduced price 
afterschool snack must not exceed 15 cents;
    (5) Claim reimbursement at the assigned rates only for afterschool 
snacks served in accordance with the agreement;
    (6) Claim reimbursement for no more than one afterschool snack per 
child per day;
    (7) Review each afterschool care program two times a year; the 
first review must be made during the first four weeks that the school 
is in operation each school year, except that an afterschool care 
program operating year round must be reviewed during the first four 
weeks of its initial year of operation, once more during its first year 
of operation, and twice each school year thereafter; and
    (8) Comply with all requirements of this part, except that, claims 
for reimbursement need not be based on ``point of service'' afterschool 
snack counts (as required by Sec.  210.9(b)(9)).

0
8. In Sec.  210.10:
0
a. Revise and republish paragraph (a)(1)(i);
0
b. Revise paragraphs (a)(3) and (b) through (f);
0
c. Revise and republish paragraph (g);
0
d. Revise paragraph (h);
0
e. Revise and republish paragraphs (i), (j), and (k)(2);
0
f. Revise paragraphs (m), (o), (p), and (q); and
0
g. Add paragraph (r).
    The revisions and addition read as follows:


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

    (a) * * *
    (1) * * *
    (i) Requirements for lunch. School lunches offered to children age 
5 or older must meet, at a minimum, the meal requirements in paragraph 
(b) of this section. Schools must follow a food-based menu planning 
approach and produce enough food to offer each child the quantities 
specified in the meal pattern established in paragraph (c) of this 
section for each age/grade group served in the school. In addition, 
school lunches must meet the dietary specifications in paragraph (f) of 
this section. Schools offering lunches to children ages 1 through 4 and 
infants must meet the meal pattern requirements in paragraphs (p) and 
(q) of this section, as applicable. Schools must make plain potable 
water available and accessible without restriction to children at no 
charge in the place(s) where lunches are served during the meal 
service.
* * * * *
    (3) Production and menu records. Schools or school food 
authorities, as applicable, must keep production and menu records for 
the meals they produce. These records must show how the meals offered 
contribute to the required meal components and food quantities for each 
age/grade group every day. Schools or school food authorities must 
maintain records of the latest nutritional analysis of the school menus 
conducted by the State agency. Information on maintaining production 
and menu records may be found in FNS guidance.
    (b) Meal requirements for school lunches. School lunches for 
children ages 5 and older must reflect food and nutrition requirements 
specified by the Secretary. Compliance with these requirements is 
measured as follows:
    (1) On a daily basis:
    (i) Meals offered to each age/grade group must include the meal 
components and food quantities specified in the meal pattern in 
paragraph (c) of this section; and
    (ii) The meal selected by each student must have the number of meal 
components required for a reimbursable meal and include at least one 
fruit or vegetable.
    (2) Over a 5-day school week:
    (i) Average calorie content of meals offered to each age/grade 
group must be within the minimum and maximum calorie levels specified 
in paragraph (f) of this section;
    (ii) Average saturated fat content of the meals offered to each 
age/grade group must be less than 10 percent of total calories;
    (iii) By July 1, 2027, average added sugars content of the meals 
offered to each age/grade group must be less than 10 percent of total 
calories; and
    (iv) Average sodium content of the meals offered to each age/grade 
group must not exceed the maximum level specified in paragraph (f) of 
this section.
    (c) Meal pattern for school lunches. Schools must offer the meal 
components and quantities required in the lunch meal pattern 
established in the following table:

[[Page 32066]]



             Table 1 to Paragraph (c) Introductory Text--National School Lunch Program Meal Pattern
----------------------------------------------------------------------------------------------------------------
                                                                   Amount of food \1\ per week (minimum per day)
                         Meal components                         -----------------------------------------------
                                                                    Grades K-5      Grades 6-8      Grades 9-12
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \2\...............................................  2\1/2\ (\1/2\)  2\1/2\ (\1/2\)           5 (1)
Vegetables (cups) \2\...........................................  3\3/4\ (\3/4\)  3\3/4\ (\3/4\)           5 (1)
    Dark Green Subgroup \3\.....................................           \1/2\           \1/2\           \1/2\
    Red/Orange Subgroup \3\.....................................           \3/4\           \3/4\          1\1/4\
    Beans, Peas, and Lentils Subgroup \3\.......................           \1/2\           \1/2\           \1/2\
    Starchy Subgroup \3\........................................           \1/2\           \1/2\           \1/2\
    Other Vegetables Subgroup \3\ \4\...........................           \1/2\           \1/2\           \3/4\
    Additional Vegetables from Any Subgroup to Reach Total......               1               1          1\1/2\
Grains (oz. eq.) \5\............................................         8-9 (1)        8-10 (1)       10-12 (2)
Meats/Meat Alternates (oz. eq.) \6\.............................        8-10 (1)        9-10 (1)       10-12 (2)
Fluid Milk (cups) \7\...........................................           5 (1)           5 (1)           5 (1)
----------------------------------------------------------------------------------------------------------------
                 Dietary Specifications: Daily Amount Based on the Average for a 5-Day Week \8\
----------------------------------------------------------------------------------------------------------------
Minimum-Maximum Calories (kcal).................................         550-650         600-700         750-850
Saturated Fat (% of total calories).............................             <10             <10             <10
Added Sugars (% of total calories)..............................             <10             <10             <10
Sodium Limit: In place through June 30, 2027....................      <=1,110 mg      <=1,225 mg      <=1,280 mg
Sodium Limit: Must be implemented by July 1, 2027...............        <=935 mg      <=1,035 mg      <=1,080 mg
----------------------------------------------------------------------------------------------------------------
\1\ Food items included in each group and subgroup and amount equivalents.
\2\ Minimum creditable serving is \1/8\ cup. 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 percent full-strength.
\3\ Larger amounts of these vegetables may be served.
\4\ This subgroup consists of ``Other vegetables'' as defined in paragraph (c)(2)(ii)(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 bean, peas, and lentils vegetable subgroups as defined in paragraph (c)(2)(ii) of
  this section.
\5\ Minimum creditable serving is 0.25 oz. eq. At least 80 percent of grains offered weekly (by ounce
  equivalents) must be whole grain-rich as defined in Sec.   210.2 and the remaining grains items offered must
  be enriched.
\6\ Minimum creditable serving is 0.25 oz. eq.
\7\ Minimum creditable serving is 8 fluid ounces. All fluid milk must be fat-free (skim) or low-fat (1 percent
  fat or less) and must meet the requirements in paragraph (d) of this section.
\8\ By July 1, 2027, schools must meet the dietary specification for added sugars. Schools must meet the sodium
  limits by the dates specified in this chart. Discretionary sources of calories may be added to the meal
  pattern if within the dietary specifications.

    (1) Age/grade groups. Schools must plan menus for students using 
the following age/grade groups: Grades K-5 (ages 5-10), grades 6-8 
(ages 11-13), and grades 9-12 (ages 14-18). If an unusual grade 
configuration in a school prevents the use of these established age/
grade groups, students in grades K-5 and grades 6-8 may be offered the 
same food quantities at lunch provided that the calorie and sodium 
standards for each age/grade group are met. No customization of the 
established age/grade groups is allowed.
    (2) Meal components. Schools must offer students in each age/grade 
group the meal components specified in this paragraph (c).
    (i) Fruits component. Schools must offer fruits daily as part of 
the lunch menu. Fruits that are fresh, frozen, or dried, or canned in 
light syrup, water or fruit juice may be offered to meet the 
requirements of this paragraph (c)(2)(i). All fruits are credited based 
on their volume as served, except that \1/4\ cup of dried fruit counts 
as \1/2\ cup of fruit. Only pasteurized, full-strength fruit juice may 
be offered, and may be credited to meet no more than one-half of the 
fruits component.
    (ii) Vegetables component. Schools must offer vegetables daily as 
part of the lunch menu. Fresh, frozen, or canned vegetables and dry 
beans, peas, and lentils may be offered to meet this requirement. All 
vegetables are credited based on their volume as served, except that 1 
cup of leafy greens counts as \1/2\ cup of vegetables and tomato paste 
and puree are credited based on calculated volume of the whole food 
equivalency. Pasteurized, full-strength vegetable juice may be offered 
to meet no more than one-half of the vegetables component. Vegetable 
offerings at lunch over the course of the week must include the 
following vegetable subgroups, as defined in this section in the 
quantities specified in the meal pattern in paragraph (c) of this 
section:
    (A) Dark green vegetables subgroup. This subgroup includes 
vegetables such as bok choy, broccoli, collard greens, dark green leafy 
lettuce, kale, mesclun, mustard greens, romaine lettuce, spinach, 
turnip greens, and watercress;
    (B) Red/orange vegetables subgroup. This subgroup includes 
vegetables such as acorn squash, butternut squash, carrots, pumpkin, 
tomatoes, tomato juice, and sweet potatoes;
    (C) Beans, peas, and lentils vegetable subgroup. This subgroup 
includes vegetables such as black beans, black-eyed peas (mature, dry), 
garbanzo beans (chickpeas), kidney beans, lentils, navy beans pinto 
beans, soybeans, split peas, and white beans. Cooked dry beans, peas, 
and lentils may be counted as either a vegetable or as a meat alternate 
but not as both in the same dish. When offered toward the protein 
sources component, beans, peas, and lentils may count toward the weekly 
beans, peas, and lentils vegetable subgroup requirement, but may not 
count toward the daily or weekly vegetable component requirement;
    (D) Starchy vegetables subgroup. This subgroup includes vegetables 
such as black-eyed peas (not dry), corn, cassava, green bananas, green 
peas, green lima beans, plantains, taro, water chestnuts, and white 
potatoes; and
    (E) Other vegetables subgroup. This subgroup includes all other 
fresh, frozen, and canned vegetables, cooked or raw, such as 
artichokes, asparagus, avocados, bean sprouts, beets, Brussels sprouts, 
cabbage, cauliflower, celery, cucumbers, eggplant, green beans, green 
peppers, iceberg lettuce, mushrooms,

[[Page 32067]]

okra, onions, parsnips, turnips, wax beans, and zucchini.
    (iii) Grains component. Schools must offer grains daily as part of 
the lunch menu.
    (A) Whole grain-rich requirement. Whole grain-rich is the term 
designated by FNS to indicate that the grain content of a product is 
between 50 and 100 percent whole grain with any remaining grains being 
enriched. At least 80 percent of grains offered at lunch weekly must, 
based on ounce equivalents, meet the whole grain-rich criteria as 
defined in Sec.  210.2, and the remaining grain items offered must be 
enriched.
    (B) Breakfast cereals. By July 1, 2025, breakfast cereals must 
contain no more than 6 grams of added sugars per dry ounce.
    (C) Desserts. Schools may count up to two ounce equivalents of 
grain-based desserts per week toward meeting the grains requirement at 
lunch. Information on crediting grain-based desserts may be found in 
FNS guidance.
    (D) 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.
    (iv) Meats/meat alternates component. Schools must offer meats/meat 
alternates daily as part of the lunch meal pattern. The quantity of the 
meat/meat alternate must be the edible portion as served. This 
component must be served in a main dish or in a main dish and only one 
other food item. Schools without daily choices in this component should 
not serve any one meat/meat alternate or form of meat/meat alternate 
(for example, ground, diced, pieces) more than three times in the same 
week. If a portion size of this component does not meet the daily 
requirement for a particular age/grade group, schools may supplement it 
with another meat/meat alternate to meet the full requirement. Schools 
may adjust the daily quantities of this component provided that a 
minimum of one ounce is offered daily to students in grades K-8 and a 
minimum of two ounces is offered daily to students in grades 9-12, and 
the total weekly requirement is met over a 5-day period. Information on 
crediting meats/meat alternates may be found in FNS guidance.
    (A) Enriched macaroni. Enriched macaroni with fortified protein as 
defined in appendix A to this part may be used to meet part of the 
meats/meat alternates requirement when used as specified in appendix A 
to this part. An enriched macaroni product with fortified protein as 
defined in appendix A to this part may be used to meet part of the 
meats/meat alternates component or the grains component but may not 
meet both food components in the same lunch.
    (B) Nuts and seeds. Nuts and seeds and their butters are allowed as 
a meat alternate. Acorns, chestnuts, and coconuts do not credit as meat 
alternates because of their low protein and iron content. Nut and seed 
meals or flours may credit only if they meet the requirements for 
Alternate Protein Products established in appendix A to this part.
    (C) Yogurt. Yogurt may be offered to meet all or part of the meats/
meat alternates component. Yogurt may be plain or flavored, unsweetened 
or sweetened. By July 1, 2025, yogurt must contain no more than 12 
grams of added sugars per 6 ounces (2 grams of added sugars per ounce). 
Noncommercial and/or non-standardized yogurt products, such as frozen 
yogurt, drinkable yogurt products, homemade yogurt, yogurt flavored 
products, yogurt bars, yogurt covered fruits and/or nuts or similar 
products are not creditable. Four ounces (weight) or \1/2\ cup (volume) 
of yogurt is one ounce equivalent of meats/meat alternates.
    (D) Tofu and soy products. Commercial tofu and soy products may be 
offered to meet all or part of the meats/meat alternates component. 
Noncommercial and/or non-standardized tofu and soy products are not 
creditable.
    (E) Beans, peas, and lentils. Cooked dry beans, peas, and lentils 
may be offered to meet all or part of the meats/meat alternates 
component. Beans, peas, and lentils are identified in this section and 
include foods such as black beans, garbanzo beans, lentils, kidney 
beans, mature lima beans, navy beans, pinto beans, and split peas. 
Cooked dry beans, peas, and lentils may be counted as either a 
vegetable or as a meat alternate but not as both in the same dish. When 
offered as a meat alternate, beans, peas, and lentils may count toward 
the weekly beans, peas, and lentils vegetable subgroup requirement, but 
may not count toward the daily or weekly vegetable component 
requirements.
    (F) Other meat alternates. Other meat alternates, such as cheese 
and eggs, may be used to meet all or part of the meats/meat alternates 
component.
    (v) Fluid milk component. Fluid milk must be offered daily in 
accordance with paragraph (d) of this section.
    (3) Grain substitutions. (i) Schools in American Samoa, Guam, 
Hawaii, Puerto Rico, and the U.S. Virgin Islands may serve any 
vegetable, including vegetables such as breadfruit, prairie turnips, 
plantains, sweet potatoes, and yams, to meet the grains component.
    (ii) School food authorities and schools that are tribally 
operated, operated by the Bureau of Indian Education, and that serve 
primarily American Indian or Alaska Native children, may serve any 
vegetable, including vegetables such as breadfruit, prairie turnips, 
plantains, sweet potatoes, and yams, to meet the grains component.
    (4) Adjustments to school menus. Schools must adjust future menu 
cycles to reflect production and how often food items are offered. 
Schools may need to change the foods offerings given students' 
selections and may need to modify recipes and other specifications to 
make sure that meal requirements are met.
    (5) Standardized recipes. All schools must develop and follow 
standardized recipes. A standardized recipe is a recipe that was tested 
to provide an established yield and quantity using the same ingredients 
for both measurement and preparation methods. Standardized recipes 
developed by USDA/FNS are in the Child Nutrition Database. If a school 
has its own recipes, they may seek assistance from the State agency or 
school food authority to standardize the recipes. Schools must add any 
local recipes to their local databases. Additional information may be 
found in FNS guidance.
    (6) Processed foods. The Child Nutrition Database includes a number 
of processed foods. Schools may use purchased processed foods that are 
not in the Child Nutrition Database. Schools or the State agency must 
add any locally purchased processed foods to their local database. The 
State agencies must obtain the levels of calories, saturated fat, added 
sugars, and sodium in the processed foods. Additional information may 
be found in FNS guidance.
    (7) Traditional Indigenous foods. Traditional Indigenous foods may 
credit toward the required meal components. Information on food 
crediting may be found in FNS guidance. Schools are encouraged to serve 
traditional Indigenous foods as part of their lunch and afterschool 
snack service. Per the Agriculture Improvement Act of 2014, as amended 
(25 U.S.C. 1685(b)(5)) traditional foods means food that has 
traditionally been prepared and

[[Page 32068]]

consumed by an American Indian tribe, including wild game meat; fish; 
seafood; marine mammals; plants; and berries.
    (d) Fluid milk requirements--(1) Types of fluid milk. (i) Schools 
must offer students a variety (at least two different options) of fluid 
milk at lunch daily. All milk must be fat-free (skim) or low-fat (1 
percent fat or less). Milk with higher fat content is not creditable. 
Low-fat or fat-free lactose-free and reduced-lactose fluid milk may 
also be offered.
    (ii) All fluid milk served in the Program must be pasteurized fluid 
milk which meets State and local standards for such milk. All fluid 
milk must 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.
    (iii) Milk varieties may be unflavored or flavored, provided that 
unflavored milk is offered at each meal service. By July 1, 2025, 
flavored milk must contain no more than 10 grams of added sugars per 8 
fluid ounces, or for flavored milk sold as competitive food for middle 
and high schools, 15 grams of added sugars per 12 fluid ounces.
    (2) Fluid milk substitutes for non-disability reasons. School food 
authorities may offer fluid milk substitutes to students with dietary 
needs that are not disabilities. For disability-related meal 
modifications, see paragraph (m) of this section.
    (i) Prior to providing a fluid milk substitute for a non-disability 
reason, a school food authority must obtain a written request from the 
student's parent or guardian, a State licensed healthcare professional, 
or a registered dietitian that identifies the reason for the 
substitute. A school food authority choosing to offer fluid milk 
substitutes for a non-disability reason is not required to offer the 
specific fluid milk substitutes requested but may offer the fluid milk 
substitutes of its choice, provided the fluid milk substitutes offered 
meet the requirements of paragraph (d)(2)(ii) of this section. A school 
food authority must inform the State agency if any schools choose to 
offer fluid milk substitutes for non-disability reasons.
    (ii) If a school food authority chooses to offer one or more fluid 
milk substitutes for non-disability reasons, the fluid milk substitutes 
must provide, at a minimum, the nutrients listed in the following 
table. Fluid milk substitutes must be fortified in accordance with 
fortification guidelines issued by the Food and Drug Administration.

  Table 2 to Paragraph (d)(2)(ii)--Nutrient Requirements for Fluid Milk
                               Substitutes
------------------------------------------------------------------------
             Nutrient                        Per cup (8 fl. oz.)
------------------------------------------------------------------------
Calcium...........................  276 mg.
Protein...........................  8 g.
Vitamin A.........................  150 mcg. retinol activity
                                     equivalents (RAE).
Vitamin D.........................  2.5 mcg.
Magnesium.........................  24 mg.
Phosphorus........................  222 mg.
Potassium.........................  349 mg.
Riboflavin........................  0.44 mg.
Vitamin B-12......................  1.1 mcg.
------------------------------------------------------------------------

    (iii) Expenses incurred when providing fluid milk substitutes that 
exceed program reimbursements must be paid by the school food 
authority; costs may be paid from the nonprofit school food service 
account.
    (iv) The fluid milk substitute approval must remain in effect until 
the student's parent or guardian, the State licensed healthcare 
professional, or the registered dietitian revokes the request in 
writing, or until the school food authority changes its fluid milk 
substitute policy.
    (3) Inadequate fluid milk supply. If a school food authority cannot 
get a supply of fluid milk, it can still participate in the Program 
under the following conditions:
    (i) If emergency conditions temporarily prevent a school food 
authority that normally has a supply of fluid milk from obtaining 
delivery of such milk, the State agency may allow the school food 
authority to serve meals during the emergency period with an alternate 
form of fluid milk or without fluid milk.
    (ii) If a school food authority is unable to obtain a supply of any 
type of fluid milk on a continuing basis, the State agency may approve 
the service of meals without fluid milk if the school food authority 
uses an equivalent amount of canned milk or dry milk in the preparation 
of the meals. In Alaska, American Samoa, Guam, Hawaii, Puerto Rico, and 
the U.S. Virgin Islands, if a sufficient supply of fluid milk cannot be 
obtained, ``fluid milk'' includes reconstituted or recombined fluid 
milk, or as otherwise allowed by FNS through a written exception.
    (4) Restrictions on the sale of fluid milk. A school food authority 
participating in the Program, or a person approved by a school food 
authority participating in the Program, must not directly or indirectly 
restrict the sale or marketing of fluid milk (as identified in 
paragraph (d)(1) of this section) at any time or in any place on school 
premises or at any school-sponsored event.
    (e) Offer versus serve for grades K through 12. School lunches must 
offer daily the five meal components specified in the meal pattern in 
paragraph (c) of this section. Under offer versus serve, students must 
be allowed to decline two components at lunch, except that the students 
must select at least 1/2 cup of either the fruit or vegetable 
component. Senior high schools (as defined by the State educational 
agency) must participate in offer versus serve. Schools below the 
senior high level may participate in offer versus serve at the 
discretion of the school food authority.
    (f) Dietary specifications--(1) Calories. School lunches offered to 
each age/grade group must meet, on average over the school week, the 
minimum and maximum calorie levels specified in the following table:

[[Page 32069]]



                    Table 3 to Paragraph (f)(1)--National School Lunch Program Calorie Ranges
----------------------------------------------------------------------------------------------------------------
                                                                  Grades K-5       Grades 6-8      Grades 9-12
----------------------------------------------------------------------------------------------------------------
Average Daily Minimum-Maximum Calories (kcal) \1\............         550-650          600-700          750-850
----------------------------------------------------------------------------------------------------------------
\1\ The average daily calories must fall within the minimum and maximum levels. Discretionary sources of
  calories may be added to the meal pattern if within the dietary specifications.

    (2) Saturated fat. School lunches offered to all age/grade groups 
must, on average over the school week, provide less than 10 percent of 
total calories from saturated fat.
    (3) Added sugars. By July 1, 2027, school lunches offered to all 
age/grade groups must, on average over the school week, provide less 
than 10 percent of total calories from added sugars.
    (4) Sodium. School lunches offered to each age/grade group must 
meet, on average over the school week, the sodium limits specified in 
the following table within the established deadlines:

Table 4 to Paragraph (f)(4)--National School Lunch Program Sodium Limits
------------------------------------------------------------------------
                                     Sodium limit: in    Sodium limit:
                                      place through         must be
          Age/grade group             June 30, 2027      implemented by
                                           (mg)        July 1, 2027 (mg)
------------------------------------------------------------------------
Grades K-5........................            <=1,110              <=935
Grades 6-8........................            <=1,225            <=1,035
Grades 9-12.......................            <=1,280            <=1,080
------------------------------------------------------------------------

    (g) Compliance assistance. The State agency and school food 
authority must provide technical assistance and training to assist 
schools in planning lunches that meet the meal pattern in paragraph (c) 
of this section; the dietary specifications established in paragraph 
(f) of this section; and the meal pattern requirements in paragraphs 
(o) through (q) of this section, as applicable. Compliance assistance 
may be offered during trainings, onsite visits, and/or administrative 
reviews.
    (h) Monitoring dietary specifications. When required by the 
Administrative Review process set forth in Sec.  210.18, the State 
agency must conduct a weighted nutrient analysis to evaluate the 
average levels of calories, saturated fat, added sugars, and sodium of 
the lunches offered to students in grades K-12 during one week of the 
review period. The nutrient analysis must be conducted in accordance 
with the procedures established in paragraph (i)(3) of this section. If 
the results of the nutrient analysis indicate that school lunches do 
not meet the specifications for calories, saturated fat, added sugars, 
and sodium specified in paragraph (f) of this section, the State agency 
or school food authority must provide technical assistance and require 
the reviewed school to take corrective action to meet the requirements.
    (i) Nutrient analyses of school meals--(1) Conducting the nutrient 
analysis. Any nutrient analysis, whether conducted by the State agency 
under Sec.  210.18 or by the school food authority, must be performed 
in accordance with the procedures established in paragraph (i)(3) of 
this section. The purpose of the nutrient analysis is to determine the 
average levels of calories, saturated fat, added sugars, and sodium in 
the meals offered to each age grade group over a school week. The 
weighted nutrient analysis must be performed as required by FNS 
guidance.
    (2) Software elements--(i) The Child Nutrition Database. The 
nutrient analysis is based on the USDA Child Nutrition Database. This 
database is part of the software used to do a nutrient analysis. 
Software companies or others developing systems for schools may contact 
FNS for more information about the database.
    (ii) Software evaluation. FNS or an FNS designee evaluates any 
nutrient analysis software before it may be used in schools. FNS or its 
designee determines if the software, as submitted, meets the minimum 
requirements. The approval of software does not mean that FNS or USDA 
endorses it. The software must be able to perform a weighted average 
analysis after the basic data is entered. The combined analysis of the 
lunch and breakfast programs is not allowed.
    (3) Nutrient analysis procedures--(i) Weighted averages. The 
nutrient analysis must include all foods offered as part of the 
reimbursable meals during one week within the review period. Foods 
items are included based on the portion sizes and serving amounts. They 
are also weighted based on their proportionate contribution to the 
meals offered. This means that food items offered more frequently are 
weighted more heavily than those not offered as frequently. The 
weighted nutrient analysis must be performed as required by FNS 
guidance.
    (ii) Analyzed nutrients. The analysis determines the average levels 
of calories, saturated fat, added sugars, and sodium in the meals 
offered over a school week. It includes all food items offered by the 
reviewed school over a one-week period.
    (4) Comparing the results of the nutrient analysis. Once the 
procedures in paragraph (i)(3) of this section are completed, State 
agencies must compare the results of the analysis to the calorie, 
saturated fat, added sugars, and sodium levels established in Sec.  
210.10 or Sec.  220.8 of this chapter, as appropriate, for each age/
grade group to evaluate the school's compliance with the dietary 
specifications.
    (j) Responsibility for monitoring meal requirements. Compliance 
with the meal requirements in paragraph (b) of this section, including 
the dietary specifications, and paragraphs (o) through (q) of this 
section, as applicable, will be monitored by the State agency through 
administrative reviews authorized in Sec.  210.18.
    (k) * * *
    (2) Opportunity to select. Schools that choose to offer a variety 
of reimbursable lunches, or provide multiple serving lines, must make 
all required meal components available to all students, on every lunch 
line, in at least the minimum required amounts.
* * * * *
    (m) Modifications and variations in reimbursable meals and 
afterschool snacks--(1) Modifications for disability reasons. School 
food authorities must make meal modifications, including

[[Page 32070]]

substitutions in lunches and afterschool snacks, for children with a 
disability and whose disability restricts their diet. The modification 
requested must be related to the disability or limitations caused by 
the disability and must be offered at no additional cost to the child 
or household.
    (i) In order to receive Federal reimbursement when a modified meal 
does not meet the meal pattern requirements specified in this section, 
the school food authority must obtain from the household a written 
medical statement signed by a State licensed healthcare professional. 
By July 1, 2025, school food authorities must also accept a medical 
statement signed by a registered dietitian. The medical statement must 
provide sufficient information about the child's dietary restrictions, 
such as foods to be omitted and recommended alternatives, if 
appropriate. Modified meals that meet the meal pattern requirements in 
this section are reimbursable with or without a medical statement.
    (ii) School food authorities must ensure that parents, guardians, 
and children have notice of the procedure for requesting meal 
modifications for disabilities and the process for procedural 
safeguards related to meal modifications for disabilities. See 
Sec. Sec.  15b.6(b) and 15b.25 of this title.
    (iii) Expenses incurred when making meal modifications that exceed 
program reimbursement rates must be paid by the school food authority; 
costs may be paid from the nonprofit food service account.
    (2) Variations for non-disability reasons. School food authorities 
should consider children's dietary preferences when planning and 
preparing meals and afterschool snacks. Any variations must be 
consistent with the meal pattern requirements specified under this 
section. Expenses incurred from meal pattern variations that exceed 
program reimbursement rates must be paid by the school food authority; 
costs may be paid from the nonprofit food service account.
    (3) Exceptions for natural disasters. If there is a natural 
disaster or other catastrophe, FNS may temporarily allow school food 
authorities to serve meals for reimbursement that do not meet the 
requirements in this section.
* * * * *
    (o) Afterschool snacks. Eligible schools operating afterschool care 
programs may be reimbursed for one afterschool snack served to a child 
(as defined in Sec.  210.2) per day.
    (1) Eligible schools means schools that:
    (i) Operate the National School Lunch Program; and
    (ii) Sponsor afterschool care programs as defined in Sec.  210.2.
    (2) Afterschool snack requirements for K-12 children--(i) 
Afterschool snacks served to K through 12 children. Schools serving 
afterschool snacks to K-12 children must serve the meal components and 
quantities required in the snack meal pattern established for the Child 
and Adult Care Food Program, under Sec.  226.20 of this chapter. In 
addition, schools serving afterschool snacks to K-12 children must 
comply with the requirements set forth in paragraphs (a), (c)(3) and 
(4), (d)(2) through (4), (g), and (m) of this section, as applicable, 
and Sec.  226.20(d) of this chapter.
    (ii) Afterschool snack meal pattern table for K through 12 
children. Through June 30, 2025, afterschool snacks must either follow 
the requirements outlined in the following table or must contain two 
different components from the following four: fluid milk, meats/meat 
alternates, vegetable or fruit, and/or grains. By July 1, 2025, the 
minimum amounts of meal components to be served at afterschool snack 
are as follows:

Table 5 to Paragraph (o)(2)(ii)--Afterschool Snack Meal Pattern for K-12
                                Children
                               [Ages 6-18]
      [Select two of the five components for a reimbursable snack]
------------------------------------------------------------------------
            Meal components \1\                Minimum quantities \2\
------------------------------------------------------------------------
Fluid milk \3\............................  8 fluid ounces.
Meats/meat alternates \4\.................  1 ounce equivalent.
Vegetables \5\............................  \3/4\ cup.
Fruits \5\................................  \3/4\ cup.
Grains \6\................................  1 ounce equivalent.
------------------------------------------------------------------------
\1\ Must serve two of the five components for a reimbursable afterschool
  snack. Only one of the two components may be a beverage.
\2\ May need to serve larger portions to children ages 13 through 18 to
  meet their nutritional needs.
\3\ Must be fat-free (skim) or low-fat (1 percent fat or less). Milk may
  be unflavored or flavored.
\4\ Alternate protein products must meet the requirements in appendix A
  to part 226 of this chapter. Yogurt must contain no more than 12 grams
  of added sugars per 6 ounces (2 grams of added sugars per ounce).
  Information on crediting meats/meat alternates may be found in FNS
  guidance.
\5\ Juice must be pasteurized, full-strength juice. No more than half of
  the weekly fruit or vegetable offerings may be in the form of juice.
\6\ At least 80 percent of grains offered weekly (by ounce equivalents)
  must be whole grain-rich, as defined in Sec.   210.2, and the
  remaining grains items offered must be enriched. Grain-based desserts
  may not be used to meet the grains requirement. Breakfast cereal must
  have no more than 6 grams of added sugars per dry ounce. Information
  on crediting grain items may be found in FNS guidance.

    (3) Afterschool snack requirements for preschoolers--(i) 
Afterschool snacks served to preschoolers. Schools serving afterschool 
snacks to preschoolers must serve the food components and quantities 
required in the snack meal pattern established for the Child and Adult 
Care Food Program, under Sec.  226.20 of this chapter. In addition, 
schools serving afterschool snacks to preschoolers must comply with the 
requirements set forth in paragraphs (a), (c)(3) and (4), (d)(2) 
through (4), (g), and (m) of this section, as applicable, and Sec.  
226.20(d) of this chapter.
    (ii) Preschooler afterschool snack meal pattern table. The minimum 
amounts of food components to be served at afterschool snack are as 
follows:

   Table 5 to Paragraph (o)(3)(ii)--Afterschool Snack Meal Pattern for
                              Preschoolers
      [Select two of the five components for a reimbursable snack]
------------------------------------------------------------------------
                                            Minimum quantities
       Meal components \1\       ---------------------------------------
                                       Ages 1-2            Ages 3-5
------------------------------------------------------------------------
Fluid milk \2\..................  4 fluid ounces....  4 fluid ounces.
Meats/meat alternates \3\.......  \1/2\ ounce         \1/2\ ounce
                                   equivalent.         equivalent.
Vegetables \4\..................  \1/2\ cup.........  \1/2\ cup.
Fruits \4\......................  \1/2\ cup.........  \1/2\ cup.

[[Page 32071]]

 
Grains \5\......................  \1/2\ ounce         \1/2\ ounce
                                   equivalent.         equivalent.
------------------------------------------------------------------------
\1\ Must serve two of the five components for a reimbursable afterschool
  snack. Only one of the two components may be a beverage.
\2\ Must be unflavored whole milk for children age one. Must be
  unflavored low-fat (1 percent) or unflavored fat-free (skim) milk for
  children two through five years old.
\3\ Alternate protein products must meet the requirements in appendix A
  to part 226 of this chapter. Through September 30, 2025, yogurt must
  contain no more than 23 grams of total sugars per 6 ounces. By October
  1, 2025, yogurt must contain no more than 12 grams of added sugars per
  6 ounces (2 grams of added sugars per ounce). Information on crediting
  meats/meat alternates may be found in FNS guidance.
\4\ Pasteurized full-strength juice may only be offered 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 toward meeting the
  grains requirement. Through September 30, 2025, breakfast cereals must
  contain no more than 6 grams of total sugars per dry ounce. By October
  1, 2025, breakfast cereals must contain no more than 6 grams of added
  sugars per dry ounce.

    (4) Afterschool snack requirements for infants--(i) Afterschool 
snacks served to infants. Schools serving afterschool snacks to infants 
ages birth through 11 months must serve the meal components and 
quantities required in the snack meal pattern established for the Child 
and Adult Care Food Program, under Sec.  226.20 of this chapter. In 
addition, schools serving afterschool snacks to infants must comply 
with the requirements set forth in paragraphs (a), (c)(3) and (4), (g), 
and (m) of this section, as applicable, and Sec.  226.20(d) of this 
chapter.
    (ii) Infant afterschool snack meal pattern table. The minimum 
amounts of meal components to be served at snack are as follows:

 Table 6 to Paragraph (o)(4)(ii)--Infant Afterschool Snack Meal Pattern
------------------------------------------------------------------------
         Birth through 5 months                6 through 11 months
------------------------------------------------------------------------
4-6 fluid ounces of breast milk \1\ or   2-4 fluid ounces breast milk
 formula \2\.                             \1\ or formula; \2\ and
                                         0-\1/2\ ounce equivalent bread;
                                          3 4 or
                                         0-\1/4\ ounce equivalent
                                          crackers; 3 4 or
                                         0-\1/2\ ounce equivalent infant
                                          cereal; 2 4 or
                                         0-\1/4\ ounce equivalent ready-
                                          to-eat breakfast cereal; 3 4 5
                                          6and
                                         0-2 tablespoons vegetable or
                                          fruit, or a combination of
                                          both.6 7
------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served;
  however, it is recommended that breast milk be served from birth
  through 11 months. For some breastfed infants who regularly consume
  less than the minimum amount of breast milk per feeding, a serving of
  less than the minimum amount of breast milk may be offered, with
  additional breast milk offered at a later time if the infant will
  consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ A serving of grains must be whole grain-rich, enriched meal,
  enriched flour, bran, or germ.
\4\ Information on crediting grain items may be found in FNS guidance.
\5\ Through September 30, 2025, breakfast cereals must contain no more
  than 6 grams of total sugars per dry ounce. By October 1, 2025,
  breakfast cereals must contain no more than 6 grams of added sugars
  per dry ounce.
\6\ A serving of this component is required when the infant is
  developmentally ready to accept it.
\7\ Fruit and vegetable juices must not be served.

    (5) Monitoring afterschool snacks. Compliance with the requirements 
of this paragraph (o)(5) is monitored by the State agency as part of 
the Administrative Review conducted under Sec.  210.18. If snacks 
offered do not meet the requirements of this paragraph, the State 
agency or school food authority must provide technical assistance and 
require corrective action and when applicable, must take fiscal action, 
as authorized in Sec. Sec.  210.18(l) and 210.19(c).
    (p) Lunch requirements for preschoolers--(1) Lunches served to 
preschoolers. Schools serving lunches to preschoolers under the 
National School Lunch Program must serve the meal components and 
quantities required in the lunch meal pattern established for the Child 
and Adult Care Food Program, under Sec.  226.20(a), (c)(2), and (d) of 
this chapter. In addition, schools serving lunches to this age group 
must comply with the requirements set forth in paragraphs (a), (c)(3) 
and (4), (d)(2) through (4), (g), and (k) through (m) of this section.
    (2) Preschooler lunch meal pattern table. The minimum amounts of 
meal components to be served at lunch are as follows:

        Table 7 to Paragraph (p)(2)--Preschool Lunch Meal Pattern
       [Select the appropriate components for a reimbursable meal]
------------------------------------------------------------------------
                                            Minimum quantities
 Meal components and food items  ---------------------------------------
               \1\                     Ages 1-2            Ages 3-5
------------------------------------------------------------------------
Fluid milk......................  4 fluid ounces \2\  6 fluid ounces
                                                       \3\.
Meats/meat alternates \4\.......  1 ounce equivalent  1\1/2\ ounce
                                                       equivalents.
Vegetables \5\..................  \1/8\ cup.........  \1/4\ cup.
Fruits \5\......................  \1/8\ cup.........  \1/4\ cup.

[[Page 32072]]

 
Grains \6\......................  \1/2\ ounce         \1/2\ ounce
                                   equivalent.         equivalent.
------------------------------------------------------------------------
\1\ Must serve all five components for a reimbursable meal.
\2\ Must serve unflavored whole milk to children age 1.
\3\ Must serve unflavored milk to children 2 through 5 years old. The
  milk must be fat-free, skim, low-fat, or 1 percent or less.
\4\ Alternate protein products must meet the requirements in appendix A
  to part 226 of this chapter. Through September 30, 2025, yogurt must
  contain no more than 23 grams of total sugars per 6 ounces. By October
  1, 2025, yogurt must contain no more than 12 grams of added sugars per
  6 ounces (2 grams of added sugars per ounce). Information on crediting
  meats/meat alternates may be found in FNS guidance.
\5\ Juice must be pasteurized. Full-strength juice may only be offered
  to meet the vegetable or fruit requirement at one meal or snack, per
  day. Vegetables may be offered to meet the entire fruits requirement.
  When two vegetables are served at lunch or supper, two different kinds
  of vegetables must be served.
\6\ Must serve at least one whole grain-rich serving, across all eating
  occasions, per day. Grain-based desserts may not be offered to meet
  the grains requirement. Through September 30, 2025, breakfast cereals
  must contain no more than 6 grams of total sugars per dry ounce. By
  October 1, 2025, breakfast cereal must have no more than 6 grams of
  added sugars per dry ounce. Information on crediting grain items may
  be found in FNS guidance.

    (q) Lunch requirements for infants--(1) Lunches served to infants. 
Schools serving lunches to infants ages birth through 11 months under 
the National School Lunch Program must serve the meal components and 
quantities required in the lunch meal pattern established for the Child 
and Adult Care Food Program, under Sec.  226.20(a), (b), and (d) of 
this chapter. In addition, schools serving lunches to infants must 
comply with the requirements set forth in paragraphs (a), (c)(3) and 
(4), (g), (l), and (m) of this section.
    (2) Infant lunch meal pattern table. The minimum amounts of meal 
components to be served at lunch are as follows:

         Table 8 to Paragraph (q)(2)--Infant Lunch Meal Pattern
------------------------------------------------------------------------
         Birth through 5 months                6 through 11 months
------------------------------------------------------------------------
4-6 fluid ounces breast milk \1\ or      6-8 fluid ounces breast milk
 formula \2\.                             \1\ or formula; \2\ and
                                         0-\1/2\ ounce equivalent infant
                                          cereal; 2 3 or
                                         0-4 tablespoons meat, fish,
                                          poultry, whole egg, cooked dry
                                          beans, peas, or lentils; or
                                         0-2 ounces of cheese; or
                                         0-4 ounces (volume) of cottage
                                          cheese; or
                                         0-4 ounces or \1/2\ cup of
                                          yogurt; \4\ or a combination
                                          of the above; \5\ and
                                         0-2 tablespoons vegetable or
                                          fruit, or a combination of
                                          both.5 6
------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served;
  however, it is recommended that breast milk be served from birth
  through 11 months. For some breastfed infants who regularly consume
  less than the minimum amount of breast milk per feeding, a serving of
  less than the minimum amount of breast milk may be offered, with
  additional breast milk offered at a later time if the infant will
  consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Information on crediting grain items may be found in FNS guidance.
\4\ Through September 30, 2025, yogurt must contain no more than 23
  grams of total sugars per 6 ounces. By October 1, 2025, yogurt must
  contain no more than 12 grams of added sugars per 6 ounces (2 grams of
  added sugars per ounce).
\5\ A serving of this component is required when the infant is
  developmentally ready to accept it.
\6\ Fruit and vegetable juices must not be served.

    (r) Severability. If any provision of this section is held to be 
invalid or unenforceable by its terms, or as applied to any person or 
circumstances, it shall be severable from this section and not affect 
the remainder thereof. In the event of such holding of invalidity or 
unenforceability of a provision, the meal pattern requirement covered 
by that provision reverts to the version that immediately preceded the 
invalidated provision.

0
9. In Sec.  210.11:
0
a. Revise paragraph (a)(3);
0
b. Add paragraph (a)(7);
0
c. Revise paragraph (f)(2);
0
d. Revise and republish paragraph (f)(3);
0
e. Remove paragraph (g);
0
f. Redesignate paragraphs (h) through (m) as paragraphs (g) through 
(l);
0
g. Revise and republish newly redesignated paragraphs (g)(2)(i) and 
(ii) and (h);
0
h. Revise newly redesignated paragraph (l); and
0
i. Remove paragraph (n).
    The revisions and addition read as follows:


Sec.  210.11  Competitive food service and standards.

    (a) * * *
    (3) Entr[eacute]e item means an item that is intended as the main 
dish in a reimbursable meal and is either:
    (i) A combination food of a meat/meat alternate and a grain;
    (ii) A combination food of a vegetable or fruit and a meat/meat 
alternate;
    (iii) A meat/meat alternate alone with the exception of yogurt, 
low-fat or reduced fat cheese, nuts, seeds and nut or seed butters, and 
meat snacks (such as dried beef jerky); or
    (iv) A grain only entr[eacute]e that is served as the main dish in 
a school breakfast.
* * * * *
    (7) Bean dip means, for the purpose of competitive food standards, 
a spread made from ground pulses (beans, peas, and/or lentils), along 
with one or more of the following optional ingredients:
    (i) Ground nut/seed butter (such as tahini [ground sesame] or 
peanut butter).
    (ii) Vegetable oil (such as olive oil, canola oil, soybean oil).
    (iii) Seasoning (such as salt, citric acid).
    (iv) Vegetables and juice for flavor (such as olives, roasted 
pepper, garlic, lemon juice).
    (v) For manufactured bean dip, contains ingredients necessary as

[[Page 32073]]

preservatives and/or to maintain freshness.
* * * * *
    (f) * * *
    (2) Exemptions to the total fat requirement. (i) Seafood with no 
added fat is exempt from the total fat requirement, but subject to the 
saturated fat, sugar, calorie, and sodium standards.
    (ii) Bean dip (as defined in paragraph (a)(7) of this section), is 
exempt from the total fat standard, but subject to the saturated fat, 
sugar, calorie, and sodium standards. This exemption does not apply to 
combination products that contain bean dip with other ingredients such 
as crackers, pretzels, pita, manufactured, snack-type vegetable and/or 
fruit sticks.
    (3) Exemptions to the total fat and saturated fat requirements. (i) 
Reduced fat cheese and part skim mozzarella cheese are exempt from the 
total fat and saturated fat standards, but subject to the sugar, 
calorie, and sodium standards. This exemption does not apply to 
combination foods.
    (ii) Nuts and seeds and nut/seed butters are exempt from the total 
fat and saturated fat standards, but subject to the sugar, calorie, and 
sodium standards. This exemption does not apply to combination products 
that contain nuts, seeds, or nut/seed butters with other ingredients, 
such as peanut butter and crackers, trail mix, or chocolate covered 
peanuts.
    (iii) Products that consist of only dried fruit with nuts and/or 
seeds with no added nutritive sweeteners or fat are exempt from the 
total fat, saturated fat, and sugar standards, but subject to the 
calorie and sodium standards.
    (iv) Whole eggs with no added fat are exempt from the total fat and 
saturated fat standards, but subject to the calorie and sodium 
standards.
    (g) * * *
    (2) * * *
    (i) Dried whole fruits or vegetables; dried whole fruit or 
vegetable pieces; and dehydrated fruits or vegetables with no added 
nutritive sweeteners are exempt from the sugar standard, but subject to 
the total fat, saturated fat, calorie, and sodium standards. There is 
also an exemption from the sugar standard for dried fruits with 
nutritive sweeteners that are required for processing and/or 
palatability purposes.
    (ii) Products that consist of only dried fruit with nuts and/or 
seeds with no added nutritive sweeteners or fat are exempt from the 
total fat, saturated fat, and sugar standards, but subject to the 
calorie and sodium standards.
    (h) Calorie and sodium content for snack items and side dishes sold 
as competitive foods. Snack items and side dishes sold as competitive 
foods must have not more than 200 calories and 200 mg of sodium per 
item as packaged or served, including the calories and sodium contained 
in any added accompaniments such as butter, cream cheese, salad 
dressing, etc., and must meet all of the other nutrient standards in 
this section. These snack items and side dishes must have not more than 
200 calories and 200 mg of sodium per item as packaged or served.
* * * * *
    (l) Beverages--(1) Elementary schools. Allowable beverages for 
elementary school-aged students are limited to:
    (i) Plain water or plain carbonated water (no size limit);
    (ii) Milk and fluid milk substitutes that meet the requirements 
outlined in Sec.  210.10(d)(1) and (2) (no more than 8 fluid ounces); 
and
    (iii) One hundred (100) percent fruit/vegetable juice, and 100 
percent fruit/vegetable juice diluted with water, with or without 
carbonation and with no added sweeteners (no more than 8 fluid ounces).
    (2) Middle schools. Allowable beverages for middle school-aged 
students are limited to:
    (i) Plain water or plain carbonated water (no size limit);
    (ii) Milk and fluid milk substitutes that meet the requirements 
outlined in Sec.  210.10(d)(1) and (2) (no more than 12 fluid ounces); 
and
    (iii) One hundred (100) percent fruit/vegetable juice, and 100 
percent fruit/vegetable juice diluted with water, with or without 
carbonation and with no added sweeteners (no more than 12 fluid 
ounces).
    (3) High schools. Allowable beverages for high school-aged students 
are limited to:
    (i) Plain water or plain carbonated water (no size limit);
    (ii) Milk and fluid milk substitutes that meet the requirements 
outlined in Sec.  210.10(d)(1) and (2) (no more than 12 fluid ounces);
    (iii) One hundred (100) percent fruit/vegetable juice, and 100 
percent fruit/vegetable juice diluted with water, with or without 
carbonation and with no added sweeteners (no more than 12 fluid 
ounces);
    (iv) Calorie-free, flavored water, with or without carbonation (no 
more than 20 fluid ounces);
    (v) Other beverages that are labeled to contain less than 5 
calories per 8 fluid ounces, or less than or equal to 10 calories per 
20 fluid ounces (no more than 20 fluid ounces); and
    (vi) Other beverages that are labeled to contain no more than 40 
calories per 8 fluid ounces or 60 calories per 12 fluid ounces (no more 
than 12 fluid ounces).

0
10. In Sec.  210.12, revise and republish paragraph (e) to read as 
follows:


Sec.  210.12  Student, parent, and community involvement.

* * * * *
    (e) Local school wellness policies. Local educational agencies must 
comply with the provisions of Sec.  210.31(d) regarding student, 
parent, and community involvement in the development, implementation, 
and periodic review and update of the local school wellness policy.

0
11. In Sec.  210.14:
0
a. Revise and republish paragraphs (e) introductory text and 
(e)(5)(ii)(D);
0
b. Remove paragraph (e)(6)(iii); and
0
c. Revise and republish paragraph (f) introductory text.
    The revisions read as follows:


Sec.  210.14  Resource management.

* * * * *
    (e) Pricing paid lunches. For each school year, school food 
authorities must establish prices for paid lunches in accordance with 
this paragraph (e).
* * * * *
    (5) * * *
    (ii) * * *
    (D) Any in-kind contributions converted to direct cash 
expenditures; and
* * * * *
    (f) Revenue from nonprogram foods. School food authorities must 
ensure that the revenue generated from the sale of nonprogram foods 
complies with the requirements in this paragraph (f).
* * * * *

0
12. In Sec.  210.15, revise and republish paragraph (b)(9) to read as 
follows:


Sec.  210.15  Reporting and recordkeeping.

* * * * *
    (b) * * *
    (9) Records to document compliance with the local school wellness 
policy requirements as set forth in Sec.  210.31(f).

0
13. In Sec.  210.18, revise and republish paragraphs (g)(2)(i) 
introductory text, (g)(2)(i)(B)(1) through (3), (h)(2)(v) and (x), 
(l)(2)(i), (l)(2)(ii)(A), and (l)(2)(iii) introductory text to read as 
follows:


Sec.  210.18  Administrative reviews.

* * * * *
    (g) * * *
    (2) * * *
    (i) Meal components and quantities. For each school selected for 
review, the State agency must complete a USDA-approved menu tool, 
review documentation, and observe the meal service to ensure that meals 
offered by

[[Page 32074]]

the reviewed schools meet the meal patterns for each program. To review 
this area, the State agency must:
* * * * *
    (B) * * *
    (1) Observe a significant number of program meals, as described in 
the FNS Administrative Review Manual, at each serving line and review 
the corresponding documentation to determine whether all reimbursable 
meal service lines offer all of the required meal components/items and 
quantities for the age/grade groups being served, as required under 
Sec.  210.10, as applicable, and Sec.  220.8 of this chapter, as 
applicable. Observe meals at the beginning, middle and end of the meal 
service line, and confirm that signage or other methods are used to 
assist students in identifying the reimbursable meal. If the State 
agency identifies missing components or inadequate quantities prior to 
the beginning of the meal service, it must inform the school food 
authority and provide an opportunity to make corrections. Additionally, 
if visual observation suggests that quantities offered are insufficient 
or excessive, the State agency must require the reviewed schools to 
provide documentation demonstrating that the required amounts of each 
component were available for service for each day of the review period.
    (2) Observe a significant number of the program meals counted at 
the point of service for each type of serving line to determine whether 
the meals selected by the students contain the meal components and food 
quantities required for a reimbursable meal under Sec.  210.10, as 
applicable, and Sec.  220.8 of this chapter, as applicable.
    (3) If Offer versus Serve is in place, observe whether students 
select at least three meal components at lunch and at least three food 
items at breakfasts, and that the lunches and breakfasts include at 
least \1/2\ cup of fruits or vegetables.
* * * * *
    (h) * * *
    (2) * * *
    (v) Water. The State agency must ensure that plain potable water is 
available and accessible to children at no charge as specified in Sec.  
210.10(a)(1)(i) and Sec.  220.8(a)(1) of this chapter.
* * * * *
    (x) Local school wellness. The State agency must ensure the local 
educational agency complies with the local school wellness requirements 
set forth in Sec.  210.31.
* * * * *
    (l) * * *
    (2) * * *
    (i) For missing meal components or missing production records cited 
under paragraph (g)(2) of this section, the State agency must apply 
fiscal action.
    (ii) * * *
    (A) If the meals contain insufficient quantities of the required 
meal components, the deficient meals may be disallowed and reclaimed.
* * * * *
    (iii) For repeated violations of the dietary specifications cited 
under paragraph (g)(2)(ii) of this section, the State agency has 
discretion to apply fiscal action to the reviewed school as follows:
* * * * *

0
14. In Sec.  210.19:
0
a. Revise and republish paragraph (c)(4); and
0
b. Revise paragraph (f).
    The revisions read as follows:


Sec.  210.19  Additional responsibilities.

* * * * *
    (c) * * *
    (4) Interest charge. If an agreement cannot be reached with the 
State agency for payment of its debts or for offset of debts on its 
current Letter of Credit, interest will be charged against the State 
agency from the date the demand letter was sent, at the rate 
established by the Secretary of Treasury.
* * * * *
    (f) Cooperation with the Child and Adult Care Food Program. On an 
annual basis, the State agency must provide the State agency which 
administers the Child and Adult Care Food Program with a list of all 
schools in the State participating in the National School Lunch Program 
in which 50 percent or more of enrolled children have been determined 
eligible for free or reduced price meals as of the last operating day 
of the previous October, or other month specified by the State agency. 
The lists must be provided by February 1 of each year or, if data is 
based on a month other than October, within 90 calendar days following 
the end of the month designated by the State agency. The State agency 
may provide updated free and reduced price enrollment data on 
individual schools to the State agency which administers the Child and 
Adult Care Food Program only when unusual circumstances render the 
initial data obsolete. In addition, the State agency must provide the 
current list, upon request, to sponsoring organizations of day care 
homes participating in the Child and Adult Care Food Program.


Sec.  210.20  [Amended]

0
15. In Sec.  210.20:
0
a. Remove paragraphs (a)(6) and (7);
0
b. Redesignate paragraphs (a)(8) and (9) as paragraphs (a)(6) and (7), 
respectively;
0
c. Remove paragraph (b)(10); and
0
d. Redesignate paragraphs (b)(11) through (14) as paragraphs (b)(10) 
through (13), respectively.

0
16. In Sec.  210.21, revise paragraphs (d) and (g)(1) to read as 
follows:


Sec.  210.21  Procurement.

* * * * *
    (d) Buy American--(1) Definitions. For the purpose of this 
paragraph (d):
    (i) Domestic commodity or product means:
    (A) An agricultural commodity that is produced in the United 
States; and
    (B) A food product that is processed in the United States 
substantially using agricultural commodities that are produced in the 
United States.
    (ii) Substantially using agriculture commodities that are produced 
in the United States means over 51 percent of a food product must 
consist of agricultural commodities that were grown domestically.
    (2) In general. Subject to paragraph (d)(4) of this section, a 
school food authority must purchase, to the maximum extent practicable, 
domestic commodities or products.
    (3) Required language. School food authorities must include 
language requiring the purchase of foods that meet the Buy American 
requirements in paragraph (d)(1) of this section in all procurement 
procedures, solicitations, and contracts.
    (4) Limitations. Paragraphs (d)(2) and (3) of this section apply 
only to:
    (i) A school food authority located in the contiguous United 
States; and
    (ii) A purchase of domestic commodity or product for the school 
lunch program under this part.
    (5) Exceptions. The purchase of foods not meeting the definition in 
paragraph (d)(1) of this section is only permissible when the following 
criteria are met:
    (i) The school food authority determines that one of the following 
limited exceptions is met:
    (A) The product is listed in the Federal Acquisitions Regulations 
(FAR) at 48 CFR 25.104 and/or is not produced or manufactured in the 
U.S. in sufficient and reasonably available quantities of a 
satisfactory quality; or
    (B) Competitive bids reveal the cost of a United States product is 
significantly higher than the non-domestic product.
    (ii) Non-domestic food purchases (those that do not meet the 
definition of domestic commodity or product, as defined in paragraph 
(d)(1) of this section) must not exceed the following caps by the 
established deadlines:

[[Page 32075]]

    (A) By July 1, 2025, non-domestic food purchases must not exceed 10 
percent of total annual commercial food costs that a school food 
authority purchases per school year.
    (B) By July 1, 2028, non-domestic food purchases must not exceed 8 
percent of total annual commercial food costs that a school food 
authority purchases per school year.
    (C) By July 1, 2031, non-domestic food purchases must not exceed 5 
percent of total annual commercial food costs that a school food 
authority purchases per school year.
    (iii) School food authorities must maintain documentation, except 
when the item purchased is found on the FAR at 48 CFR 25.104 when using 
an exception under paragraph (d)(5)(i) of this section.
    (iv) School food authorities must maintain documentation, to 
demonstrate that when using an exception under paragraph (d)(5)(i) of 
this section their non-domestic food purchases do not exceed the annual 
threshold specified in paragraph (d)(5)(ii) of this section.
    (6) Harvested fish. To meet the definition of a domestic commodity 
or product, harvested fish must meet the following requirements:
    (i) Farmed fish must be harvested within the United States or any 
territory or possession of the United States; and
    (ii) Wild caught fish must be harvested within the Exclusive 
Economic Zone of the United States or by a United States flagged 
vessel.
    (7) Applicability to Hawaii. Paragraph (d)(2) of this section 
applies to school food authorities in Hawaii with respect to domestic 
commodities or products that are produced in Hawaii in sufficient 
quantities to meet the needs of meals provided under the school lunch 
program under this part.
    (8) Temporary accommodation. For school food authorities that 
demonstrate they cannot meet the threshold, State agencies may provide 
an accommodation for temporary relief from the requirement as the State 
agency works with the school food authority to increase domestic 
purchases.
* * * * *
    (g) * * *
    (1) A school food authority participating in the Program, as well 
as State agencies making purchases on behalf of such school food 
authorities, may apply a geographic preference when procuring 
unprocessed locally grown or locally raised agricultural products, 
including the use of ``locally grown'', ``locally raised'', or 
``locally caught'' as procurement specifications or selection criteria 
for unprocessed or minimally processed food items. When utilizing the 
geographic preference to procure such products, the school food 
authority making the purchase or the State agency making purchases on 
behalf of such school food authorities have the discretion to determine 
the local area to which the geographic preference option will be 
applied, so long as there are an appropriate number of qualified firms 
able to compete;
* * * * *

0
17. In Sec.  210.23, revise and republish paragraph (a) to read as 
follows:


Sec.  210.23  Other responsibilities.

    (a) Free and reduced price lunches and afterschool snacks. State 
agencies and school food authorities must ensure that lunches and 
afterschool snacks are made available free or at a reduced price to all 
children who are determined by the school food authority to be eligible 
for such benefits. The determination of a child's eligibility for free 
or reduced price lunches and afterschool snacks must made in accordance 
with part 245 of this chapter.
* * * * *

0
18. In Sec.  210.29, revise paragraph (d)(3) introductory text to read 
as follows:


Sec.  210.29  Management evaluations.

* * * * *
    (d) * * *
    (3) School food authority appeal of FNS findings. When 
administrative or follow-up review activity conducted by FNS in 
accordance with the provisions of paragraph (d)(2) of this section 
results in the denial of all or part of a Claim for Reimbursement or 
withholding of payment, a school food authority may appeal the FNS 
findings by filing a written request with the Food and Nutrition 
Service in accordance with the appeal procedures specified in this 
paragraph (d)(3):
* * * * *

0
19. Revise and republish Sec.  210.30 to read as follows:


Sec.  210.30  School nutrition program professional standards.

    (a) General. School food authorities that operate the National 
School Lunch Program, or the School Breakfast Program (part 220 of this 
chapter), must establish and implement professional standards for 
school nutrition program directors, managers, and staff, as defined in 
Sec.  210.2.
    (b) Minimum standards for all school nutrition program directors. 
Each school food authority must ensure that all newly hired school 
nutrition program directors meet minimum hiring standards and ensure 
that all new and existing directors have completed the minimum annual 
training/education requirements for school nutrition program directors, 
as set forth below:
    (1) Hiring standards. All school nutrition program directors hired 
on or after July 1, 2015, must meet the following minimum educational 
requirements, as applicable:
    (i) School nutrition program directors with local educational 
agency enrollment of 2,499 students or fewer. Directors must meet the 
requirements in paragraph (b)(1)(i)(A), (B), (C), or (D) of this 
section. However, a State agency may approve a school food authority to 
use the nonprofit school food service account to pay the salary of a 
school nutrition program director who does not meet the hiring 
standards herein so long as the school food authority is complying with 
a State agency-approved plan to ensure the director will meet the 
requirements.
    (A) A bachelor's degree, or equivalent educational experience, as 
determined by the State agency, with an academic major or concentration 
in food and nutrition, food service management, dietetics, family and 
consumer sciences, nutrition education, culinary arts, business, or a 
related field;
    (B) A bachelor's degree, or equivalent educational experience, as 
determined by the State agency, with any academic major or area of 
concentration, and either a State-recognized certificate for school 
nutrition directors, or at least one year of relevant food service 
experience. At the discretion of the State agency, and on an individual 
basis, documented relevant food service experience may be unpaid;
    (C) An associate's degree, or equivalent educational experience, as 
determined by the State agency, with an academic major or area of 
concentration in food and nutrition, food service management, 
dietetics, family and consumer sciences, nutrition education, culinary 
arts, business, or a related field and at least one year of relevant 
food service experience. At the discretion of the State agency, and on 
an individual basis, documented relevant food service experience may be 
unpaid; or
    (D) A high school diploma or equivalency (such as the general 
educational development diploma), and at least three years of relevant 
food service experience. At the discretion of the State agency, and on 
an individual basis, documented relevant food service experience may be 
unpaid. Directors hired under this criterion are strongly encouraged to 
work toward attaining an associate's degree in an academic major

[[Page 32076]]

in at least one of the fields listed in paragraph (b)(1)(i)(C) of this 
section.
    (ii) School nutrition program directors with local educational 
agency enrollment of 2,500 to 9,999 students. Directors must meet the 
requirements in either paragraph (b)(1)(ii)(A), (B), (C), or (D) of 
this section.
    (A) A bachelor's degree, or equivalent educational experience, as 
determined by the State agency, with an academic major or concentration 
in food and nutrition, food service management, dietetics, family and 
consumer sciences, nutrition education, culinary arts, business, or a 
related field;
    (B) A bachelor's degree, or equivalent educational experience, as 
determined by the State agency, with any academic major or area of 
concentration, and a State-recognized certificate for school nutrition 
directors;
    (C) A bachelor's degree in any academic major and at least two 
years of relevant experience in school nutrition programs; or
    (D) An associate's degree, or equivalent educational experience, as 
determined by the State agency, with an academic major or area of 
concentration in food and nutrition, food service management, 
dietetics, family and consumer sciences, nutrition education, culinary 
arts, business, or a related field and at least two years of relevant 
school nutrition program experience. Directors hired with an 
associate's degree are strongly encouraged to work toward attaining a 
bachelor's degree in an academic major in the fields listed in this 
paragraph (b)(1)(ii)(D).
    (iii) School nutrition program directors with local educational 
agency enrollment of 10,000 or more students. Directors must meet the 
requirements in either paragraph (b)(1)(iii)(A), (B), or (C) of this 
section.
    (A) A bachelor's degree, or equivalent educational experience, as 
determined by the State agency, with an academic major or area of 
concentration in food and nutrition, food service management, 
dietetics, family and consumer sciences, nutrition education, culinary 
arts, business, or a related field;
    (B) A bachelor's degree, or equivalent educational experience, as 
determined by the State agency, with any academic major or area of 
concentration, and a State-recognized certificate for school nutrition 
directors; or
    (C) A bachelor's degree in any major and at least five years of 
experience in management of school nutrition programs.
    (D) School food authorities are strongly encouraged to seek out 
individuals who possess a master's degree or are willing to work toward 
a master's degree in the fields listed in this paragraph. At least one 
year of management experience, preferably in school nutrition, is 
strongly recommended. It is also strongly recommended that directors 
have at least three credit hours at the university level in food 
service management and at least three credit hours in nutritional 
sciences at the time of hire.
    (iv) Exceptions to the hiring standards. (A) For a local 
educational agency with less than 500 students, the State agency may 
approve the hire of a director who meets one of the educational 
criteria in paragraphs (b)(1)(i)(B) through (D) of this section but has 
less than the required years of relevant food service experience.
    (B) For a local educational agency with 2,500 or more students, the 
State agency may approve the hire of a director who does not meet the 
educational criteria in paragraphs (b)(1)(ii)(A) through (D) or 
paragraphs (b)(1)(iii)(A) through (C) of this section, as applicable, 
but who has at least 10 years of school nutrition program experience.
    (C) Acting school nutrition program directors are not required to 
meet the hiring standards established in this paragraph (b)(1) of this 
section; however, the State agency may require acting school nutrition 
program directors expected to serve for more than 30 business days to 
meet the hiring standards established in established in this paragraph 
(b)(1).
    (v) School nutrition program directors for all local educational 
agency sizes. All school nutrition program directors, for all local 
educational agency sizes, must have completed at least eight hours of 
food safety training within five years prior to their starting date or 
complete eight hours of food safety training within 30 calendar days of 
their starting date. At the discretion of the State agency, all school 
nutrition program directors, regardless of their starting date, may be 
required to complete eight hours of food safety training every five 
years.
    (2) [Reserved]
    (c) Continuing education/training standards for all school 
nutrition program directors. Each school year, the school food 
authority must ensure that all school nutrition program directors 
(including acting directors, at the discretion of the State agency), 
complete 12 hours of annual continuing education/training. The annual 
training must include, but is not limited to, administrative practices 
(including training in application, certification, verification, meal 
counting, and meal claiming procedures), as applicable, and any other 
specific topics identified by FNS, as needed, to address Program 
integrity or other critical issues. Continuing education/training 
required under this paragraph (c) is in addition to the food safety 
training required in the first year of employment under paragraph 
(b)(1)(v) of this section.
    (d) Continuing education/training standards for all school 
nutrition program managers. Each school year, the school food authority 
must ensure that all school nutrition program managers have completed 
10 hours of annual continuing education/training. The annual training 
must include, but is not limited to, the following topics, as 
applicable:
    (1) Administrative practices (including training in application, 
certification, verification, meal counting, and meal claiming 
procedures);
    (2) The identification of reimbursable meals at the point of 
service;
    (3) Nutrition;
    (4) Health and safety standards; and
    (5) Any specific topics identified by FNS, as needed, to address 
Program integrity or other critical issues.
    (e) Continuing education/training standards for all staff with 
responsibility for school nutrition programs. Each school year, the 
school food authority must ensure that all staff with responsibility 
for school nutrition programs that work an average of at least 20 hours 
per week, other than school nutrition program directors and managers, 
completes 6 hours of annual training in areas applicable to their jobs. 
Part-time staff working an average of less than 20 hours per week must 
complete 4 hours of annual training. The annual training must include, 
but is not limited to, the following topics, as applicable to their 
positions and responsibilities:
    (1) Free and reduced price eligibility;
    (2) Application, certification, and verification procedures;
    (3) The identification of reimbursable meals at the point of 
service;
    (4) Nutrition;
    (5) Health and safety standards; and
    (6) Any specific topics identified by FNS, as needed, to address 
Program integrity or other critical issues.
    (f) Summary of required minimum continued education/training 
standards. The annual training requirements for school nutrition 
program directors, managers, and staff are summarized in the following 
table.

[[Page 32077]]



    Table 1 to Paragraph (f)--Summary of Required Annual Training 1 2
------------------------------------------------------------------------
 
------------------------------------------------------------------------
School Nutrition Program Directors  Each year, at least 12 hours of
                                     annual education/training.
                                    Includes topics such as:
                                     Administrative practices
                                     (including training in application,
                                     certification, verification, meal
                                     counting, and meal claiming
                                     procedures).
                                        Any specific topics
                                        required by FNS, as needed, to
                                        address Program integrity and
                                        other critical issues.
                                    This required continuing education/
                                     training is in addition to the food
                                     safety training required in the
                                     first year of employment, or for
                                     all school nutrition program
                                     directors if determined by the
                                     State agency.
School Nutrition Program Managers.  Each year, at least 10 hours of
                                     annual education/training.
                                    Includes topics such as:
                                     Administrative practices
                                     (including training in application,
                                     certification, verification, meal
                                     counting, and meal claiming
                                     procedures).
                                        The identification of
                                        reimbursable meals at the point
                                        of service.
                                     Nutrition, health, and
                                     safety standards.
                                     Any specific topics
                                     required by FNS, as needed, to
                                     address Program integrity or other
                                     critical issues.
School Nutrition Program Staff....  Each year, at least 6 hours of
                                     annual education/training.
                                    Includes topics such as:
                                     Free and reduced price
                                     eligibility.
                                     Application, certification,
                                     and verification procedures.
                                     The identification of
                                     reimbursable meals at the point of
                                     service.
                                        Nutrition, health, and
                                        safety standards.
                                     Any specific topics
                                     required by FNS, as needed, to
                                     address Program integrity or other
                                     critical issues.
                                    This requirement applies to staff,
                                     other than directors and managers,
                                     who work at least 20 hours per
                                     week.
Acting and Temporary Staff,         At the discretion of the State
 Substitutes, and Volunteers.        agency, acting and temporary staff,
                                     substitutes, and volunteers must
                                     complete training in one or more of
                                     the following topics within 30
                                     calendar days of their start date:
                                        Free and reduced price
                                        eligibility.
                                     Application, certification,
                                     and verification procedures.
                                     The identification of
                                     reimbursable meals at the point of
                                     service.
                                     Nutrition, health, and
                                     safety standards.
                                     Any specific topics
                                     required by FNS, as needed, to
                                     address Program integrity or other
                                     critical issues.
------------------------------------------------------------------------
\1\ School nutrition program directors, managers, and staff may carry
  over excess annual training hours to an immediately previous or
  subsequent school year and demonstrate compliance with the training
  requirements over a period of two school years, provided that some
  training hours are completed each school year.
\2\ Program directors, managers, and staff hired on or after January 1
  of each school year must complete half of their required annual
  training hours by June 30 of the school year in which they were hired.

    (g) Use of food service funds for training costs. Costs associated 
with annual continuing education/training required under paragraphs 
(b)(3), (c) and (d) of this section are allowed provided they are 
reasonable, allocable, and necessary in accordance with the cost 
principles set forth in 2 CFR part 225, Cost Principles for State, 
Local and Indian Tribal Governments (OMB Circular A-87). However, food 
service funds must not be used to pay for the cost of college credits 
incurred by an individual to meet the hiring requirements in paragraphs 
(b)(1)(i) through (iv) and (b)(2) of this section.
    (h) School food authority oversight. Each school year, the school 
food authority director must document compliance with the requirements 
of this section for all staff with responsibility for school nutrition 
programs, including directors, managers, and staff. Documentation must 
be adequate to establish, to the State's satisfaction during 
administrative reviews, that employees are meeting the minimum 
professional standards. The school food authority must certify that:
    (1) The school nutrition program director meets the hiring 
standards and training requirements set forth in paragraph (b) of this 
section.
    (2) Each employee has completed the applicable training 
requirements in paragraphs (c) and (d) of this section no later than 
the end of each school year.
    (3) Each employee tasked with Program procurement has completed 
annual procurement training, as required under Sec.  210.21(h), by the 
end of each school year.

PART 215--SPECIAL MILK PROGRAM FOR CHILDREN

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

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


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


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

* * * * *
    (b) Fluid milk substitutes for non-disability reasons. (1) A school 
food authority or child care institution may offer fluid milk 
substitutes based on a written request from a child's parent or 
guardian, a State licensed healthcare professional, or registered 
dietitian. A school food authority or child care institution choosing 
to offer fluid milk substitutes for a non-disability reason is not 
required to offer the specific fluid milk substitutes requested but may 
offer the fluid milk substitutes of its choice, provided the fluid milk 
substitutes offered meet the requirements of paragraph (b)(2) of this 
section.
    (2) If a school food authority or child care institution chooses to 
offer one or more fluid milk substitutes for non-disability reasons, 
the fluid milk substitutes must provide, at a minimum, the nutrients 
listed in the following table. Fluid milk substitutes must be fortified 
in accordance with fortification guidelines issued by the Food and Drug 
Administration.

[[Page 32078]]



    Table 1 to Paragraph (b)(2)--Nutrient Requirements for Fluid Milk
                               Substitutes
------------------------------------------------------------------------
                 Nutrient                        Per cup (8 fl. oz.)
------------------------------------------------------------------------
Calcium...................................  276 mg.
Protein...................................  8 g.
Vitamin A.................................  150 mcg. retinol activity
                                             equivalents (RAE).
Vitamin D.................................  2.5 mcg.
Magnesium.................................  24 mg.
Phosphorus................................  222 mg.
Potassium.................................  349 mg.
Riboflavin................................  0.44 mg.
Vitamin B-12..............................  1.1 mcg.
------------------------------------------------------------------------

    (3) Expenses incurred when providing fluid milk substitutes that 
exceed program reimbursements must be paid by the school food authority 
or child care institution; costs may be paid from the nonprofit food 
service account.

0
22. In Sec.  215.14a, revise paragraph (e) to read as follows:


Sec.  215.14a  Procurement standards.

* * * * *
    (e) Geographic preference. A school food authority participating in 
the Program may apply a geographic preference when procuring milk, 
including the use of ``locally grown'', ``locally raised'', or 
``locally caught'' as procurement specifications or selection criteria 
for unprocessed or minimally processed food items. When utilizing the 
geographic preference to procure milk, the school food authority making 
the purchase has the discretion to determine the local area to which 
the geographic preference option will be applied, so long as there are 
an appropriate number of qualified firms able to compete.

PART 220--SCHOOL BREAKFAST PROGRAM

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

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


0
24. Revise and republish Sec.  220.2 to read as follows:


Sec.  220.2  Definitions.

    For the purpose of this part the term:
    2 CFR part 200, means the Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards published by OMB. 
The part reference covers applicable: Acronyms and Definitions (subpart 
A), General Provisions (subpart B), Post Federal Award Requirements 
(subpart D), Cost Principles (subpart E), and Audit Requirements 
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of 
Federal Awards (subpart C) does not apply to the National School Lunch 
Program).
    Act means the Child Nutrition Act of 1966, as amended.
    Applicable credits shall have the meaning established in 2 CFR part 
200 and USDA implementing regulations 2 CFR parts 400 and 415.
    Breakfast means a meal which meets the meal requirements set out in 
Sec.  220.8, and which is served to a child in the morning hours. The 
meal must be served at or close to the beginning of the child's day at 
school.
    Child means:
    (1) A student of high school grade or under as determined by the 
State educational agency, who is enrolled in an educational unit of 
high school grade or under as described in paragraphs (1) and (2) of 
the definition of ``School'' in this section, including students with a 
disability who participate in a school program established for persons 
with disabilities; or
    (2) A person under 21 chronological years of age who is enrolled in 
an institution or center as described in paragraph (3) of the 
definition of ``School'' in this section.
    Contractor means a commercial enterprise, public or nonprofit 
private organization or individual that enters into a contract with a 
school food authority.
    Cost reimbursable contract means a contract that provides for 
payment of incurred costs to the extent prescribed in the contract, 
with or without a fixed fee.
    Department means the United States Department of Agriculture.
    Distributing Agency means a State agency which enters into an 
agreement with the Department for the distribution to schools of 
donated foods pursuant to part 250 of this chapter.
    Fiscal year means a period of 12 calendar months beginning on 
October 1 of any year and ending September 30 of the following year.
    Fixed fee means an agreed upon amount that is fixed at the 
inception of the contract. In a cost reimbursable contract, the fixed 
fee includes the contractor's direct and indirect administrative costs 
and profit allocable to the contract.
    Fixed-price contract means a contract that charges a fixed cost per 
meal, or a fixed cost for a certain time period. Fixed-price contracts 
may include an economic price adjustment tied to a standard index.
    FNS means the Food and Nutrition Service, United States Department 
of Agriculture.
    FNSRO means the appropriate Regional Office of the Food and 
Nutrition Service of the Department.
    Food item means a specific food offered within a meal component.
    Free breakfast means a breakfast served under the Program to a 
child from a household eligible for such benefits under part 245 of 
this chapter and for which neither the child nor any member of the 
household pays or is required to work.
    Infant cereal means any iron fortified dry cereal especially 
formulated and generally recognized as cereal for infants that is 
routinely mixed with breast milk or iron-fortified infant formula prior 
to consumption.
    Infant formula means any iron-fortified infant formula intended for 
dietary use solely as a food for normal healthy infants excluding those 
formulas specifically formulated for infants with inborn errors of 
metabolism or digestive or absorptive problems. Infant formula, as 
served, must be in liquid state at recommended dilution.
    Local educational agency means a public board of education or other 
public or private nonprofit authority legally constituted within a 
State for either administrative control or direction of, or to perform 
a service function for, public or private nonprofit elementary schools 
or secondary schools in a city, county, township, school district, or 
other political subdivision of a State, or for a combination of school 
districts or counties that is recognized in a State as an 
administrative agency for its public or private nonprofit elementary 
schools or secondary schools. The term also includes any other public 
or private nonprofit institution or agency having administrative 
control and direction of a public or private nonprofit elementary 
school or secondary school, including residential child care 
institutions, Bureau of Indian Affairs schools, and educational service 
agencies and consortia of those agencies, as well as the State 
educational agency in a State or territory in which the State 
educational agency is the sole educational agency for all public or 
private nonprofit schools.
    Meal component means one of the food groups which comprise 
reimbursable meals. The meal components are: fruits, vegetables, 
grains, meats/meat alternates, and fluid milk.
    National School Lunch Program means the Program authorized by the 
National School Lunch Act.
    Net cash resources means all monies as determined in accordance 
with the State agency's established accounting

[[Page 32079]]

system, that are available to or have accrued to a School Food 
Authority's nonprofit school food service at any given time, less cash 
payable. Such monies may include but are not limited to, cash on hand, 
cash receivable, earnings or investments, cash on deposit and the value 
of stocks, bonds or other negotiable securities.
    Nonprofit means, when applied to schools or institutions eligible 
for the Program, exempt from income tax under section 501(c)(3) of the 
Internal Revenue Code of 1986.
    Nonprofit school food service means all food service operations 
conducted by the school food authority principally for the benefit of 
school children, all of the revenue from which is used solely for the 
operation or improvement of such food service.
    Nonprofit school food service account means the restricted account 
in which all of the revenue from all food service operations conducted 
by the school food authority principally for the benefit of school 
children is retained and used only for the operation or improvement of 
the nonprofit school food service.
    OIG means the Office of the Inspector General of the Department.
    Program means the School Breakfast Program.
    Reduced price breakfast means a breakfast served under the Program:
    (1) To a child from a household eligible for such benefits under 
part 245 of this chapter;
    (2) For which the price is less than the school food authority 
designated full price of the breakfast and which does not exceed the 
maximum allowable reduced price specified under part 245 of this 
chapter; and
    (3) For which neither the child nor any member of the household is 
required to work.
    Reimbursement means Federal cash assistance including advances paid 
or payable to participating schools for breakfasts meeting the 
requirements of Sec.  220.8 served to eligible children.
    Revenue when applied to nonprofit school food service means all 
monies received by or accruing to the nonprofit school food service in 
accordance with the State agency's established accounting system 
including, but not limited to, children's payments, earnings on 
investments, other local revenues, State revenues, and Federal cash 
reimbursements.
    School means:
    (1) An educational unit of high school grade or under, recognized 
as part of the educational system in the State and operating under 
public or nonprofit private ownership in a single building or complex 
of buildings;
    (2) Any public or nonprofit private classes of preprimary grade 
when they are conducted in the aforementioned schools; or
    (3) Any public or nonprofit private residential child care 
institution, or distinct part of such institution, which operates 
principally for the care of children, and, if private, is licensed to 
provide residential child care services under the appropriate licensing 
code by the State or a subordinate level of government, except for 
residential summer camps which participate in the Summer Food Service 
Program for Children, Job Corps centers funded by the Department of 
Labor, and private foster homes.
    School Breakfast Program means the program authorized by section 4 
of the Child Nutrition Act of 1966.
    School in severe need means a school determined to be eligible for 
rates of reimbursement in excess of the prescribed National Average 
Payment Factors, based upon the criteria set forth in Sec.  220.9(d).
    School food authority means the governing body which is responsible 
for the administration of one or more schools; and has legal authority 
to operate the Program therein or be otherwise approved by FNS to 
operate the Program.
    School week means the period of time used to determine compliance 
with the meal requirements in Sec.  220.8. The period must be a normal 
school week of five consecutive days; however, to accommodate shortened 
weeks resulting from holidays and other scheduling needs, the period 
must be a minimum of three consecutive days and a maximum of seven 
consecutive days. Weeks in which school breakfasts are offered less 
than three times must be combined with either the previous or the 
coming week.
    Seamless Summer Option means the meal service alternative 
authorized by Section 13(a)(8) of the Richard B. Russell National 
School Lunch Act, 42 U.S.C. 1761(a)(8), under which public or nonprofit 
school food authorities participating in the National School Lunch 
Program or School Breakfast Program offer meals at no cost to children 
during the traditional summer vacation periods and, for year-round 
schools, vacation periods longer than 10 school days.
    Secretary means the Secretary of Agriculture.
    State means any of the 50 States, District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as 
applicable, American Samoa and the Commonwealth of the Northern 
Marianas.
    State agency means:
    (1) The State educational agency;
    (2) Such other agency of the State as has been designated by the 
Governor or other appropriate executive or legislative authority of the 
State and approved by the Department to administer the Program in 
schools as specified in Sec.  210.3(b) of this chapter; or
    (3) The FNSRO, where the FNSRO administers the Program as specified 
in Sec.  210.3(c) of this chapter.
    State educational agency means, as the State legislature may 
determine:
    (1) The chief State school officer (such as the State 
Superintendent of Public Instruction, Commissioner of Education, or 
similar officer), or
    (2) A board of education controlling the State department of 
education.
    Tofu means a soybean-derived food, made by a process in which 
soybeans are soaked, ground, mixed with water, heated, filtered, 
coagulated, and formed into cakes. Basic ingredients are whole 
soybeans, one or more food-grade coagulants (typically a salt or an 
acid), and water. Tofu products must conform to FNS guidance to count 
toward the meats/meat alternates component.
    USDA implementing regulations include the following: 2 CFR part 
400, Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards; 2 CFR part 415, General Program 
Administrative Regulations; 2 CFR part 416, General Program 
Administrative Regulations for Grants and Cooperative Agreements to 
State and Local Governments; and 2 CFR part 418, New Restrictions on 
Lobbying.
    Whole grain-rich is the term designated by FNS to indicate that the 
grain content of a product is between 50 and 100 percent whole grain 
with any remaining grains being enriched.
    Whole grains means grains that consist of the intact, ground, 
cracked, or flaked grain seed whose principal anatomical components--
the starchy endosperm, germ and bran--are present in the same relative 
proportions as they exist in the intact grain seed.
    Yogurt means commercially prepared coagulated milk products 
obtained by the fermentation of specific bacteria, that meet milk fat 
or milk solid requirements and to which flavoring foods or ingredients 
may be added. These products are covered by the Food and Drug 
Administration's Definition and Standard of Identity for yogurt, 21 CFR 
131.200, and low-fat yogurt and non-fat yogurt covered as a 
standardized food under 21 CFR 130.10.

[[Page 32080]]


0
25. In Sec.  220.3, revise and republish paragraph (a) to read as 
follows:


Sec.  220.3  Administration.

    (a) Within the Department, FNS shall act on behalf of the 
Department in the administration of the Program covered by this part.
* * * * *

0
26. In Sec.  220.7:
0
a. Revise and republish paragraphs (d)(3)(ii) and (iii), (e)(1)(iii), 
and (e)(2);
0
b. Revise paragraph (e)(4); and
0
c. Revise and republish paragraphs (e)(5), (9), and (13) and (h).
    The revisions read as follows:


Sec.  220.7  Requirements for participation.

* * * * *
    (d) * * *
    (3) * * *
    (ii) The food service management company must have State or local 
health certification for any facility outside the school in which it 
proposes to prepare meals and the food service management company must 
maintain this health certification for the duration of the contract;
    (iii) No payment is to be made for meals that are spoiled or 
unwholesome at time of delivery, do not meet detailed specifications as 
developed by the school food authority for each meal component 
specified in Sec.  220.8, or do not otherwise meet the requirements of 
the contract. Specifications will cover items such a grade, purchase 
units, style, condition, weight, ingredients, formulations, and 
delivery time; and
* * * * *
    (e) * * *
    (1) * * *
    (iii) Revenues received by the nonprofit school food service must 
not be used to purchase land or buildings or to construct buildings;
* * * * *
    (2) Serve breakfasts which meet the minimum requirements prescribed 
in Sec.  220.8;
* * * * *
    (4) Serve breakfast free or at a reduced price to all children who 
are determined by the local education agency to be eligible for such 
meals under part 245 of this chapter;
    (5) Make no discrimination against any child because of the child's 
inability to pay the full price of the breakfasts;
* * * * *
    (9) Purchase, in as large quantities as may be efficiently utilized 
in its nonprofit school food service, foods designated as plentiful by 
the State agency;
* * * * *
    (13) Upon request, make all accounts and records pertaining to its 
nonprofit school food service available to the State agency and to FNS 
for audit or review at a reasonable time and place. Such records must 
be retained for a period of three years after the end of the fiscal 
year to which they pertain, except that if audit findings have not been 
resolved, the records must be retained beyond the three-year period as 
long as required for the resolution of the issues raised by the audit;
* * * * *
    (h) Local educational agencies must comply with the provisions of 
Sec.  210.31 of this chapter regarding the development, implementation, 
periodic review and update, and public notification of the local school 
wellness policy.

0
27. Revise and republish Sec.  220.8 to read as follows:


Sec.  220.8  Meal requirements for breakfasts.

    (a) General requirements. This section contains the meal 
requirements applicable to school breakfasts for students in grades K 
through 12, and for children under the age of 5. In general, school 
food authorities must ensure that participating schools provide 
nutritious, well-balanced, and age-appropriate breakfasts to all the 
children they serve to improve their diet and safeguard their health.
    (1) General nutrition requirements. School breakfasts offered to 
children age 5 and older must meet, at a minimum, the meal requirements 
in paragraph (b) of this section. Schools must follow a food-based menu 
planning approach and produce enough food to offer each child the 
quantities specified in the meal pattern established in paragraph (c) 
of this section for each age/grade group served in the school. In 
addition, school breakfasts must meet the dietary specifications in 
paragraph (f) of this section. Schools offering breakfasts to children 
ages 1 to 4 and infants must meet the meal pattern requirements in 
paragraphs (o) and (p) of this section, as applicable. When breakfast 
is served in the cafeteria, schools must make plain potable water 
available and accessible without restriction to children at no charge.
    (2) Unit pricing. Schools must price each meal as a unit. The price 
of a reimbursable breakfast does not change if the student does not 
take a food item or requests smaller portions. Schools must identify, 
near or at the beginning of the serving line(s), the food items that 
constitute the unit-priced reimbursable school meal(s).
    (3) Production and menu records. Schools or school food 
authorities, as applicable, must keep production and menu records for 
the meals they produce. These records must show how the meals offered 
contribute to the required meal components and food quantities for each 
age/grade group every day. Schools or school food authorities must 
maintain records of the latest nutritional analysis of the school menus 
conducted by the State agency. Information on maintaining production 
and menu records may be found in FNS guidance.
    (b) Meal requirements for school breakfasts. School breakfasts for 
children ages 5 and older must reflect food and nutrition requirements 
specified by the Secretary. Compliance with these requirements is 
measured as follows:
    (1) On a daily basis:
    (i) Meals offered to each age/grade group must include the meal 
components and food quantities specified in the meal pattern in 
paragraph (c) of this section;
    (ii) Meal selected by each student must have the number of meal 
components required for a reimbursable meal and include at least one 
fruit or vegetable.
    (2) Over a 5-day school week:
    (i) Average calorie content of the meals offered to each age/grade 
group must be within the minimum and maximum calorie levels specified 
in paragraph (f) of this section;
    (ii) Average saturated fat content of the meals offered to each 
age/grade group must be less than 10 percent of total calories as 
specified in paragraph (f) of this section;
    (iii) By July 1, 2027, average added sugars content of the meals 
offered to each age/grade group must be less than 10 percent of total 
calories as specified in paragraph (f) of this section; and
    (iv) Average sodium content of the meals offered to each age/grade 
group must not exceed the maximum level specified in paragraph (f) of 
this section.
    (c) Meal pattern for school breakfasts for grades K through 12. A 
school must offer the meal components and quantities required in the 
breakfast meal pattern established in the following table:

[[Page 32081]]



                Table 1 to Paragraph (c) Introductory Text--School Breakfast Program Meal Pattern
----------------------------------------------------------------------------------------------------------------
                                                                   Amount of food \1\ per week (minimum per day)
                         Meal components                         -----------------------------------------------
                                                                    Grades K-5      Grades 6-8      Grades 9-12
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \2\...............................................           5 (1)           5 (1)           5 (1)
Vegetables (cups) \2\...........................................               0               0               0
    Dark Green Subgroup.........................................               0               0               0
    Red/Orange Subgroup.........................................               0               0               0
    Beans, Peas, and Lentils Subgroup...........................               0               0               0
    Starchy Subgroup............................................               0               0               0
    Other Vegetables Subgroup...................................               0               0               0
Grains or Meats/Meat Alternates (oz. eq) \3\....................        7-10 (1)        8-10 (1)        9-10 (1)
Fluid Milk (cups) \4\...........................................           5 (1)           5 (1)           5 (1)
----------------------------------------------------------------------------------------------------------------
                 Dietary Specifications: Daily Amount Based on the Average for a 5-Day Week \5\
----------------------------------------------------------------------------------------------------------------
Minimum-Maximum Calories (kcal).................................         350-500         400-550         450-600
Saturated Fat (% of total calories).............................             <10             <10             <10
Added Sugars (% of total calories)..............................             <10             <10             <10
Sodium Limit: In place through June 30, 2027....................        <=540 mg        <=600 mg        <=640 mg
Sodium Limit: Must be implemented by July 1, 2027...............        <=485 mg        <=535 mg        <=570 mg
----------------------------------------------------------------------------------------------------------------
\1\ Food items included in each group and subgroup and amount equivalents.
\2\ Minimum creditable serving is \1/8\ cup. Schools must offer 1 cup of fruit daily and 5 cups of fruit weekly.
  Schools may substitute vegetables for fruit at breakfast as described in paragraphs (c)(2)(i) and (ii) of this
  section.
\3\ Minimum creditable serving is 0.25 oz. eq. School may offer grains, meats/meat alternates, or a combination
  of both to meet the daily and weekly ounce equivalents for this combined component. At least 80 percent of
  grains offered weekly at breakfast must be whole grain-rich as defined in Sec.   210.2 of this chapter, and
  the remaining grain items offered must be enriched.
\4\ Minimum creditable serving is 8 fluid ounces. All fluid milk must be fat-free (skim) or low-fat (1 percent
  fat or less) and must meet the requirements in paragraph (d) of this section.
\5\ By July 1, 2027, schools must meet the dietary specification for added sugars. Schools must meet the sodium
  limits by the dates specified in this chart. Discretionary sources of calories may be added to the meal
  pattern if within the dietary specifications.

    (1) Age/grade groups. Schools must plan menus for students using 
the following age/grade groups: Grades K-5 (ages 5-10), grades 6-8 
(ages 11-13), and grades 9-12 (ages 14-18). If an unusual grade 
configuration in a school prevents the use of the established age/grade 
groups, students in grades K-5 and grades 6-8 may be offered the same 
food quantities at breakfast provided that the calorie and sodium 
standards for each age/grade group are met. No customization of the 
established age/grade groups is allowed.
    (2) Meal components. Schools must offer students in each age/grade 
group the meal components specified in meal pattern in this paragraph 
(c). Meal component descriptions in Sec.  210.10 of this chapter apply 
to this Program.
    (i) Fruits component. Schools must offer daily the fruit quantities 
specified in the breakfast meal pattern in this paragraph (c). Fruits 
that are fresh, frozen, or dried, or canned in light syrup, water or 
fruit juice may be offered to meet the fruits component requirements. 
Vegetables may be offered in place of all or part of the required 
fruits at breakfast. Schools that choose to offer vegetables in place 
of fruits at breakfast one day per school week may offer any 
vegetables, including starchy vegetables. Schools that choose to offer 
vegetables in place of fruits at breakfast two or more days per school 
week must offer at least two different vegetable subgroups as defined 
in Sec.  210.10(c)(2)(ii) of this chapter. All fruits are credited 
based on their volume as served, except that \1/4\ cup of dried fruit 
counts as \1/2\ cup of fruit. Only pasteurized, full-strength fruit 
juice may be offered, and may be credited to meet no more than one-half 
of the fruit component.
    (ii) Vegetables component. Schools are not required to offer 
vegetables as part of the breakfast menu but may offer vegetables to 
meet part or all of the fruit requirement. Schools that choose to offer 
vegetables in place of fruits at breakfast one day per school week may 
offer any vegetables, including starchy vegetables. Schools that choose 
to offer vegetables in place of fruits at breakfast two or more days 
more than one day per school week must offer vegetables from at least 
two different vegetable subgroups as defined in Sec.  210.10(c)(2)(ii) 
of this chapter. Fresh, frozen, or canned vegetables and dry beans, 
peas, and lentils may be offered to meet the fruit requirement. All 
vegetables are credited based on their volume as served, except that 1 
cup of leafy greens counts as \1/2\ cup of vegetables and tomato paste 
and tomato puree are credited based on calculated volume of the whole 
food equivalency. Pasteurized, full-strength vegetable juice may be 
offered to meet no more than one-half of the vegetable component. 
Cooked dry beans, peas, and lentils may be counted as either a 
vegetable or as a meat/meat alternate but not as both in the same dish.
    (iii) Grains. Grains offered at breakfast count toward the combined 
grains and meats/meat alternates component. Schools may offer grains, 
meats/meat alternates, or a combination of both to meet the daily and 
weekly ounce equivalents for this combined component. Information on 
crediting grain items may be found in FNS guidance.
    (A) Whole grain-rich requirement. Whole grain-rich is the term 
designated by FNS to indicate that the grain content of a product is 
between 50 and 100 percent whole grain with any remaining grains being 
enriched. At least 80 percent of grains offered at breakfast weekly, 
based on ounce equivalents, must meet the whole grain-rich criteria as 
defined in Sec.  220.2, and the remaining grain items offered must be 
enriched.
    (B) Breakfast cereals. By July 1, 2025, breakfast cereals must 
contain no more than 6 grams of added sugars per dry ounce.
    (C) 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

[[Page 32082]]

decrease the weekly quantity by approximately 20 percent (\1/5\) for 
each day less than 5.
    (iv) Meats/meat alternates. Meats/meat alternates offered at 
breakfast count toward the combined grains and meats/meat alternates 
component. Schools may offer grains, meats/meat alternates, or a 
combination of both to meet the daily and weekly ounce equivalents for 
this combined component. Information on crediting meats/meat alternates 
may be found in FNS guidance.
    (A) Enriched macaroni. Enriched macaroni with fortified protein, as 
defined in appendix A to part 210 of this chapter, may be used to meet 
part of the meats/meat alternates requirement when used as specified in 
appendix A to part 210.
    (B) Nuts and seeds. Nuts and seeds and their butters are allowed as 
meat alternates. Acorns, chestnuts, and coconuts do not credit as meat 
alternates because of their low protein and iron content. Nut and seed 
meals or flours may credit only if they meet the requirements for 
Alternate Protein Products established in appendix A to this part.
    (C) Yogurt. Yogurt may be offered to meet all or part of the 
combined grains and meats/meat alternates component. Yogurt may be 
plain or flavored, unsweetened or sweetened. By July 1, 2025, yogurt 
must contain no more than 12 grams of added sugars per 6 ounces (2 
grams of added sugars per ounce). Noncommercial and/or non-standardized 
yogurt products, such as frozen yogurt, drinkable yogurt products, 
homemade yogurt, yogurt flavored products, yogurt bars, yogurt covered 
fruits and/or nuts or similar products are not creditable. Four ounces 
(weight) or \1/2\ cup (volume) of yogurt equals one ounce of the meats/
meat alternates requirement.
    (D) Tofu and soy products. Commercial tofu and soy products may be 
offered to meet all or part of the combined grains and meats/meat 
alternates component. Noncommercial and/or non-standardized tofu and 
products are not creditable.
    (E) Beans, peas, and lentils. Cooked dry beans, peas, and lentils 
may be used to meet all or part of the combined grains and meats/meat 
alternates component. Beans, peas, and lentils are identified in this 
section and include foods such as black beans, garbanzo beans, lentils, 
kidney beans, mature lima beans, navy beans, pinto beans, and split 
peas. Cooked dry beans, peas, and lentils may be counted as either a 
vegetable or as a meat/meat alternate but not as both in the same dish.
    (F) Other meat alternates. Other meat alternates, such as cheese 
and eggs, may be used to meet all or part of the combined grains and 
meats/meat alternates component.
    (v) Fluid milk component. Fluid milk must be offered daily in 
accordance with paragraph (d) of this section.
    (3) Grain substitutions. (i) Schools in American Samoa, Guam, 
Hawaii, Puerto Rico, and the U.S. Virgin Islands may serve any 
vegetable, including vegetables such as breadfruit, prairie turnips, 
plantains, sweet potatoes, and yams, to meet the combined grains and 
meats/meat alternates component.
    (ii) School food authorities and schools that are tribally 
operated, operated by the Bureau of Indian Education, and that serve 
primarily American Indian or Alaska Native children, may serve any 
vegetable, including vegetables such as breadfruit, prairie turnips, 
plantains, sweet potatoes, and yams, to meet the combined grains and 
meats/meat alternates component.
    (4) Traditional Indigenous foods. Traditional Indigenous foods may 
credit toward the required meal components. Information on food 
crediting may be found in FNS guidance. Schools are encouraged to serve 
traditional Indigenous foods as part of their breakfast service. Per 
the Agriculture Improvement Act of 2014, as amended (25 U.S.C. 
1685(b)(5)) traditional foods means food that has traditionally been 
prepared and consumed by an American Indian tribe, including wild game 
meat; fish; seafood; marine mammals; plants; and berries.
    (d) Fluid milk requirements. Schools must offer students a variety 
(at least two different options) of fluid milk at breakfast daily. All 
fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). 
Milk with higher fat content is not creditable. 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. By July 1, 2025, flavored milk must contain no 
more than 10 grams of added sugars per 8 fluid ounces, or for flavored 
milk sold as competitive food for middle and high schools, 15 grams of 
added sugars per 12 fluid ounces. Schools must also comply with other 
applicable fluid milk requirements in Sec.  210.10(d) of this chapter.
    (e) Offer versus serve for grades K through 12. School breakfast 
must offer daily at least the three meal components required in the 
meal pattern in paragraph (c) of this section. To exercise the offer 
versus serve option at breakfast, a school food authority or school 
must offer a minimum of four food items daily as part of the required 
components. Under offer versus serve, students are allowed to decline 
one of the four food items, provided that students select at least \1/
2\ cup of the fruit component for a reimbursable meal. If only three 
food items are offered at breakfast, school food authorities or schools 
may not exercise the offer versus serve option.
    (f) Dietary specifications--(1) Calories. School breakfasts offered 
to each age/grade group must meet, on average over the school week, the 
minimum and maximum calorie levels specified in the following table:

                      Table 2 to Paragraph (f)(1)--School Breakfast Program Calorie Ranges
----------------------------------------------------------------------------------------------------------------
                                                                  Grades K-5       Grades 6-8      Grades 9-12
----------------------------------------------------------------------------------------------------------------
Average Daily Minimum-Maximum Calories (kcal) \1\............         350-500          400-550          450-600
----------------------------------------------------------------------------------------------------------------
\1\ The average daily amount must fall within the minimum and maximum levels. Discretionary sources of calories
  may be added to the meal pattern if within the dietary specifications.

    (2) Saturated fat. School breakfast offered to all age/grade groups 
must, on average over the school week, provide less than 10 percent of 
total calories from saturated fat.
    (3) Added sugars. By July 1, 2027, school breakfasts offered to all 
age/grade groups must, on average over the school week, provide less 
than 10 percent of total calories from added sugars.
    (4) Sodium. School breakfasts offered to each age/grade group must 
meet, on average over the school week, the levels of sodium specified 
in the following table within the established deadlines:

[[Page 32083]]



   Table 3 to Paragraph (f)(4)--School Breakfast Program Sodium Limits
------------------------------------------------------------------------
                                     Sodium limit: in    Sodium limit:
                                      place through         must be
          Age/grade group             June 30, 2027      implemented by
                                           (mg)        July 1, 2027 (mg)
------------------------------------------------------------------------
Grades K-5........................              <=540              <=485
Grades 6-8........................              <=600              <=535
Grades 9-12.......................              <=640              <=570
------------------------------------------------------------------------

    (g) Compliance assistance. The State agency and school food 
authority must provide technical assistance and training to assist 
schools in planning breakfasts that meet the meal pattern in paragraph 
(c) of this section, the dietary specifications established in 
paragraph (f) of this section, and the meal pattern in paragraphs (o) 
and (p) of this section, as applicable. Compliance assistance may be 
offered during training, onsite visits, and/or administrative reviews.
    (h) State agency responsibilities for monitoring dietary 
specifications. When required by the Administrative Review process set 
forth in Sec.  210.18 of this chapter, the State agency must conduct a 
weighted nutrient analysis to evaluate the average levels of calories, 
saturated fat, added sugars, and sodium of the breakfasts offered to 
students in grades K-12 during one week within the review period. The 
nutrient analysis must be conducted in accordance with the procedures 
established in Sec.  210.10(i)(3) of this chapter. If the results of 
the nutrient analysis indicate that the school breakfasts do not meet 
the specifications for calories, saturated fat, added sugars, or sodium 
specified in paragraph (f) of this section, the State agency or school 
food authority must provide technical assistance and require the 
reviewed school to take corrective action to meet the requirements.
    (i) Nutrient analyses of school meals. Any nutrient analysis of 
school breakfasts conducted under the administrative review process set 
forth in Sec.  210.18 of this chapter must be performed in accordance 
with the procedures established in Sec.  210.10(i) of this chapter. The 
purpose of the nutrient analysis is to determine the average levels of 
calories, saturated fat, added sugars, and sodium in the breakfasts 
offered to each age grade group over a school week.
    (j) Responsibility for monitoring meal requirements. Compliance 
with the applicable breakfast requirements in paragraph (b) of this 
section, including the dietary specifications, and paragraphs (o) and 
(p) of this section will be monitored by the State agency through 
administrative reviews authorized in Sec.  210.18 of this chapter.
    (k) Menu choices at breakfast. The requirements in Sec.  210.10(k) 
of this chapter also apply to this Program.
    (l) Requirements for breakfast period--(1) Timing. Schools must 
offer breakfasts meeting the requirements of this section at or near 
the beginning of the school day.
    (2) [Reserved]
    (m) Modifications and variations in reimbursable meals. The 
requirements in Sec.  210.10(m) of this chapter also apply to this 
Program.
    (n) Nutrition disclosure. The requirements in Sec.  210.10(n) of 
this chapter also apply to this Program.
    (o) Breakfast requirements for preschoolers--(1) Breakfasts served 
to preschoolers. Schools serving breakfast to preschoolers under the 
School Breakfast Program must serve the meal components and quantities 
required in the breakfast meal pattern established for the Child and 
Adult Care Food Program under Sec.  226.20(a), (c)(1), and (d) of this 
chapter. In addition, schools serving breakfasts to this age group must 
comply with the requirements set forth in paragraphs (a), (c)(3), (g), 
and (k) through (m) of this section, as applicable.
    (2) Preschooler breakfast meal pattern table. The minimum amounts 
of meal components to be served at breakfast are as follows:

                          Table 4 to Paragraph (o)(2)--Preschool Breakfast Meal Pattern
                           [Select the appropriate components for a reimbursable meal]
----------------------------------------------------------------------------------------------------------------
                                                                  Minimum quantities
 Meal components and food items \1\ ----------------------------------------------------------------------------
                                                    Ages 1-2                              Ages 3-5
----------------------------------------------------------------------------------------------------------------
Fluid Milk \2\.....................  4 fluid ounces.......................  6 fluid ounces.
Vegetables, Fruits, or portions of   \1/4\ cup............................  \1/2\ cup.
 both \3\.
Grains (oz. eq.) \4\...............  \1/2\ ounce equivalent...............  \1/2\ ounce equivalent.
----------------------------------------------------------------------------------------------------------------
\1\ Must serve all three components for a reimbursable meal.
\2\ Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent) or unflavored fat-
  free (skim) milk for children two through five years old.
\3\ Pasteurized full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal,
  including snack, per day.
\4\ At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do
  not count toward meeting the grains requirement. Meats/meat alternates may be offered in place of the entire
  grains requirement, up to 3 times per week at breakfast. One ounce equivalent of a meat/meat alternate credits
  equal to one ounce equivalent of grains. Through September 30, 2025, breakfast cereals must contain no more
  than 6 grams of total sugars per dry ounce. By October 1, 2025, breakfast cereals must contain no more than 6
  grams of added sugars per dry ounce. Information on crediting grain items and meats/meat alternates may be
  found in FNS guidance.

    (p) Breakfast requirements for infants--(1) Breakfasts served to 
infants. Schools serving breakfasts to infants ages birth through 11 
months under the School Breakfast Program must serve the meal 
components and quantities required in the breakfast meal pattern 
established for the Child and Adult Care Food Program, under Sec.  
226.20(a), (b), and (d) of this chapter. In addition, schools serving 
breakfasts to infants must comply with the requirements set forth in 
paragraphs (a), (c)(3), (g), and (k) through (m) of this section as 
applicable.

[[Page 32084]]

    (2) Infant breakfast meal pattern table. The minimum amounts of 
meal components to be served at breakfast are as follows:

       Table 5 to Paragraph (p)(2)--Infant Breakfast Meal Pattern
------------------------------------------------------------------------
         Birth through 5 months                6 through 11 months
------------------------------------------------------------------------
4-6 fluid ounces breast milk \1\ or      6-8 fluid ounces breast milk
 formula \2\.                             \1\ or formula; \2\ and
                                         0-\1/2\ ounce equivalent infant
                                          cereal; 2 3 or
                                         0-4 tablespoons meat, fish,
                                          poultry, whole egg, cooked dry
                                          beans, peas, or lentils; or
                                         0-2 ounces of cheese; or
                                         0-4 ounces (volume) of cottage
                                          cheese; or
                                         0-4 ounces or \1/2\ cup of
                                          yogurt; \4\ or a combination
                                          of the above; \5\ and
                                         0-2 tablespoons vegetable or
                                          fruit, or a combination of
                                          both.5 6
------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served;
  however, it is recommended that breast milk be served from birth
  through 11 months. For some breastfed infants who regularly consume
  less than the minimum amount of breast milk per feeding, a serving of
  less than the minimum amount of breast milk may be offered, with
  additional breast milk offered at a later time if the infant will
  consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Information on crediting grain items may be found in FNS guidance.
\4\ Through September 30, 2025, yogurt must contain no more than 23
  grams of total sugars per 6 ounces. By October 1, 2025, yogurt must
  contain no more than 12 grams of added sugars per 6 ounces (2 grams of
  added sugars per ounce).
\5\ A serving of this component is required when the infant is
  developmentally ready to accept it.
\6\ Fruit and vegetable juices must not be served.

    (q) Severability. If any provision of this section is held to be 
invalid or unenforceable by its terms, or as applied to any person or 
circumstances, it shall be severable from this section and not affect 
the remainder thereof. In the event of such holding of invalidity or 
unenforceability of a provision, the meal pattern requirements covered 
by that provision reverts to the version immediately preceding the 
invalidated provision.

0
28. In Sec.  220.13:
0
a. Revise paragraph (b)(3);
0
b. Revise and republish paragraphs (c) and (f)(3); and
0
c. Remove paragraph (l);
0
d. Redesignate paragraph (m) as paragraph (l).
    The revisions read as follows:


Sec.  220.13  Special responsibilities of State agencies.

* * * * *
    (b) * * *
    (3) Each State agency must keep the records supplied by school food 
authorities showing the number of food safety inspections obtained by 
schools for the current and three most recent school years.
    (c) Each State agency must promptly investigate complaints received 
or irregularities noted in connection with the operation of either 
program, and must take appropriate action to correct any 
irregularities. State agencies must maintain on file evidence of such 
investigations and actions. FNS will make investigations at the request 
of the State agency or where FNS determines investigations are 
appropriate.
* * * * *
    (f) * * *
    (3) For the purposes of compliance with the meal requirements in 
Sec.  220.8, the State agency must follow the provisions specified in 
Sec.  210.18(g) of this chapter, as applicable.
* * * * *

0
29. In Sec.  220.14, revise and republish paragraphs (c) and (e) to 
read as follows:


Sec.  220.14  Claims against school food authorities.

* * * * *
    (c) The State agency may refer to FNS for determination any action 
it proposes to take under this section.
* * * * *
    (e) If FNS does not concur with the State agency's action in paying 
a claim or a reclaim, or in failing to collect an overpayment, FNS will 
assert a claim against the State agency for the amount of such claim, 
reclaim, or overpayment. In all such cases the State agency will have 
full opportunity to submit to FNS evidence or information concerning 
the action taken. If, in the determination of FNS, the State agency's 
action was unwarranted, the State agency must promptly pay to FNS the 
amount of the claim, reclaim, or overpayment.
* * * * *

0
30. In Sec.  220.16, revise paragraphs (d) and (f)(1) to read as 
follows:


Sec.  220.16  Procurement standards.

* * * * *
    (d) Buy American--(1) Definitions. For the purpose of this 
paragraph (d):
    (i) Domestic commodity or product means:
    (A) An agricultural commodity that is produced in the United 
States; and
    (B) A food product that is processed in the United States 
substantially using agricultural commodities that are produced in the 
United States.
    (ii) Substantially using agriculture commodities that are produced 
in the United States means over 51 percent of a food product must 
consist of agricultural commodities that were grown domestically.
    (2) In general. Subject to paragraph (d)(4) of this section, a 
school food authority must purchase, to the maximum extent practicable, 
domestic commodities or products.
    (3) Required language. School food authorities must include 
language requiring the purchase of foods that meet the Buy American 
requirements in paragraph (d)(1) of this section in all procurement 
procedures, solicitations, and contracts.
    (4) Limitations. Paragraphs (d)(2) and (3) of this section apply 
only to:
    (i) A school food authority located in the contiguous United 
States; and
    (ii) A purchase of domestic commodity or product for the school 
breakfast program under this part.
    (5) Exceptions. The purchase of foods not meeting the definition in 
paragraph (d)(1) of this section is only permissible when the following 
criteria are met:
    (i) The school food authority determines that one of the following 
limited exceptions is met:
    (A) The product is listed in the Federal Acquisition Regulation 
(FAR) at 48 CFR 25.104 and/or is not produced or manufactured in the 
U.S. in sufficient and reasonably available quantities of a 
satisfactory quality; or
    (B) Competitive bids reveal the cost of a United States product is 
significantly higher than the non-domestic product.
    (ii) Non-domestic food purchases (those that do not meet the 
definition of domestic commodity or product, as defined in paragraph 
(d)(1) of this

[[Page 32085]]

section) must not exceed the following caps by the established 
deadlines:
    (A) By July 1, 2025, non-domestic food purchases must not exceed 10 
percent of total annual commercial food costs that a school food 
authority purchases per school year.
    (B) By July 1, 2028, non-domestic food purchases must not exceed 8 
percent of total annual commercial food costs that a school food 
authority purchases per school year.
    (C) By July 1, 2031, non-domestic food purchases must not exceed 5 
percent of total annual commercial food costs that a school food 
authority purchases per school year.
    (iii) School food authorities must maintain documentation, except 
when the item purchased is found on the FAR at 48 CFR 25.104 when using 
an exception under paragraph (d)(5)(i) of this section.
    (iv) School food authorities must maintain documentation, to 
demonstrate that when using an exception under paragraph (d)(5)(i) of 
this section their non-domestic food purchases do not exceed the annual 
threshold specified in paragraph (d)(5)(ii) of this section.
    (6) Harvested fish. To meet the definition of a domestic commodity 
or product, harvested fish must meet the following requirements:
    (i) Farmed fish must be harvested within the United States or any 
territory or possession of the United States; and
    (ii) Wild caught fish must be harvested within the Exclusive 
Economic Zone of the United States or by a United States flagged 
vessel.
    (7) Applicability to Hawaii. Paragraph (d)(2) of this section 
applies to school food authorities in Hawaii with respect to domestic 
commodities or products that are produced in Hawaii in sufficient 
quantities to meet the needs of meals provided under the school 
breakfast program under this part.
    (8) Temporary accommodation. For school food authorities that 
demonstrate they cannot meet the threshold, State agencies may provide 
an accommodation for temporary relief from the requirement as the State 
agency works with the school food authority to increase domestic 
purchases.
* * * * *
    (f) * * *
    (1) School food authorities participating in the Program, as well 
as State agencies making purchases on behalf of such school food 
authorities, may apply a geographic preference when procuring 
unprocessed locally grown or locally raised agricultural products, 
including the use of ``locally grown'', ``locally raised'', or 
``locally caught'' as procurement specifications or selection criteria 
for unprocessed or minimally processed food items. When utilizing the 
geographic preference to procure such products, the school food 
authority making the purchase or the State agency making purchases on 
behalf of such school food authorities have the discretion to determine 
the local area to which the geographic preference option will be 
applied, so long as there are an appropriate number of qualified firms 
able to compete;
* * * * *

PART 225--SUMMER FOOD SERVICE PROGRAM

0
31. The authority citation for part 225 continues to read as follows:

    Authority:  Secs. 9, 13 and 14, Richard B. Russell National 
School Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a).


0
32. In Sec.  225.16:
0
a. Revise paragraphs (d)(1) through (3);
0
b. Revise and republish paragraph (e)(2); and
0
c. Revise paragraphs (e)(5) and (f)(3).
    The revisions read as follows:


Sec.  225.16  Meal service requirements.

* * * * *
    (d) * * *
    (1) Breakfast. The minimum amount of meal components to be served 
as breakfast are as follows:

           Table 1 to Paragraph (d)(1)--Breakfast Meal Pattern
------------------------------------------------------------------------
             Meal components                      Minimum amount
------------------------------------------------------------------------
                          Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s)............  \1/2\ cup.\1\
Full-strength vegetable or fruit juice    \1/2\ cup (4 fluid ounces).
 or an equivalent quantity of any
 combination of vegetable(s), fruit(s),
 and juice.
------------------------------------------------------------------------
                     Bread and Bread Alternates \2\
------------------------------------------------------------------------
Bread or................................  1 slice.
Cornbread, biscuits, rolls, muffins,      1 serving.\3\
 etc. or.
Cold dry cereal or......................  \3/4\ cup or 1 ounce.\4\
Cooked cereal or cereal grains or.......  \1/2\ cup.
Cooked pasta or noodle products or an     \1/2\ cup.
 equivalent quantity of any combination
 of bread/bread alternate.
------------------------------------------------------------------------
                                Milk \5\
------------------------------------------------------------------------
Milk, fluid.............................  1 cup (\1/2\ pint, 8 fluid
                                           ounces).
------------------------------------------------------------------------
                    Meats/Meat Alternates (Optional)
------------------------------------------------------------------------
Lean meat or poultry or fish or.........  1 ounce.
Alternate protein product \6\ or........  1 ounce.
Cheese or...............................  1 ounce.
Egg (large) or..........................  \1/2\.
Cooked dry beans, peas, or lentils or...  \1/4\ cup.
Peanut butter or........................  2 tablespoons.
Yogurt, plain or flavored, unsweetened    4 ounces or \1/2\ cup.
 or sweetened or an equivalent quantity
 of any combination of meats/meat
 alternates.
------------------------------------------------------------------------
\1\ For the purposes of the requirement outlined in the table, a cup
  means the standard measuring cup.

[[Page 32086]]

 
\2\ Bread, pasta or noodle products, and cereal grains (such as rice,
  bulger, or corn grits) must be whole grain or enriched; cornbread,
  biscuits, rolls, muffins, etc. must be made with whole grain or
  enriched meal or flour; cereal must be whole grain, enriched, or
  fortified.
\3\ Information on food crediting, including serving sizes and
  equivalents, may be found in FNS guidance.
\4\ Either volume (cup) or weight (ounces), whichever is less.
\5\ Milk must be served as a beverage or on cereal or used in part for
  each purpose.
\6\ Must meet the requirements in appendix A of this part.

    (2) Lunch or supper. The minimum amounts of meal components to be 
served as lunch or supper are as follows:

        Table 2 to Paragraph (d)(2)--Lunch or Supper Meal Pattern
------------------------------------------------------------------------
             Meal components                      Minimum amount
------------------------------------------------------------------------
                          Meats/Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish or.........  2 ounces.
Alternate protein products \1\ or.......  2 ounces.
Cheese or...............................  2 ounces.
Egg (large) or..........................  1.
Cooked dry beans, peas, or lentils or...  \1/2\ cup.\2\
Peanut butter or soynut butter or other   4 tablespoons.
 nut or seed butters or.
Peanuts or soynuts or tree nuts or seeds  2 ounces.
 \3\ or.
Yogurt, plain or flavored, unsweetened    8 ounces or 1 cup.
 or sweetened or an equivalent quantity
 of any combination of the above meats/
 meat alternates.
------------------------------------------------------------------------
                          Vegetables and Fruits
------------------------------------------------------------------------
Vegetables and/or fruits \4\............  \3/4\ cup total.
------------------------------------------------------------------------
                    Bread and Bread Alternatives \5\
------------------------------------------------------------------------
Bread or................................  1 slice.
Cornbread, biscuits, rolls, muffins,      1 serving.\6\
 etc. or.
Cooked pasta or noodle products or......  \1/2\ cup.
Cooked cereal grains or an equivalent     \1/2\ cup.
 quantity of any combination of bread or
 bread alternate.
------------------------------------------------------------------------
                                  Milk
------------------------------------------------------------------------
Milk, fluid, served as a beverage.......  1 cup (\1/2\ pint, 8 fluid
                                           ounces).
------------------------------------------------------------------------
\1\ Must meet the requirements of appendix A of this part.
\2\ For the purposes of the requirement outlined in this table, a cup
  means a standard measuring cup.
\3\ Information on crediting meats/meat alternates, including nuts and
  seeds, may be found in FNS guidance.
\4\ Serve 2 or more kinds of vegetable(s) and/or fruits or a combination
  of both. Full-strength vegetable or fruit juice may be offered to meet
  not more than one-half of this requirement.
\5\ Bread, pasta or noodle products, and cereal grains (such as rice,
  bulgur, or corn grits) must be whole grain or enriched; cornbread,
  biscuits, rolls, muffins, etc., must be made with whole grain or
  enriched meal or flour; cereal must be whole grain, enriched or
  fortified.
\6\ Information on food crediting, including serving sizes and
  equivalents, may be found in FNS guidance.

    (3) Snacks. The minimum amounts of meal components to be served as 
snacks are as follows. Select two of the following four components. 
(Juice may not be served when milk is served as the only other 
component.)

             Table 3 to Paragraph (d)(3)--Snack Meal Pattern
------------------------------------------------------------------------
             Meal components                      Minimum amount
------------------------------------------------------------------------
                          Meats/Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish or.........  1 ounce.
Alternate protein products \1\ or.......  1 ounce.
Cheese or...............................  1 ounce.
Egg (large) or..........................  \1/2\.
Cooked dry beans, peas, or lentils or...  \1/4\ cup.\2\
Peanut butter or soynut butter or other   2 tablespoons.
 nut or seed butters or.
Peanuts or soynuts or tree nuts or seeds  1 ounce.
 \3\ or.
Yogurt, plain or flavored, unsweetened    4 ounces or \1/2\ cup.
 or sweetened or an equivalent quantity
 of any combination of the above meats/
 meat alternates.
------------------------------------------------------------------------
                          Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s) or.........  \3/4\ cup.

[[Page 32087]]

 
Full-strength vegetable or fruit juice    \3/4\ cup (6 fluid ounces).
 or an equivalent quantity or any
 combination of vegetable(s), fruit(s),
 and juice.
------------------------------------------------------------------------
                     Bread and Bread Alternates \4\
------------------------------------------------------------------------
Bread or................................  1 slice.
Cornbread, biscuits, rolls, muffins,      1 serving.\5\
 etc. or.
Cold dry cereal or......................  \3/4\ cup or 1 ounce.\6\
Cooked cereal or........................  \1/2\ cup.
Cooked cereal grains or an equivalent     \1/2\ cup.
 quantity of any combination of bread/
 bread alternate.
------------------------------------------------------------------------
                                Milk \7\
------------------------------------------------------------------------
Milk, fluid.............................  1 cup (\1/2\ pint, 8 fluid
                                           ounces).
------------------------------------------------------------------------
\1\ Must meet the requirements in appendix A of this part.
\2\ For the purposes of the requirement outlined in this table, a cup
  means a standard measuring cup.
\3\ Information on crediting meats/meat alternates, including nuts and
  seeds, may be found in FNS guidance.
\4\ Bread, pasta or noodle products, and cereal grains (such as rice,
  bulgur, or corn grits) must be whole grain or enriched; cornbread,
  biscuits, rolls, muffins, etc., must be made with whole grain or
  enriched meal or flour; cereal must be whole grain, enriched, or
  fortified.
\5\ Information on food crediting, including serving sizes and
  equivalents, may be found in FNS guidance.
\6\ Either volume (cup) or weight (ounces), whichever is less.
\7\ Milk should be served as a beverage or on cereal, or used in part
  for each purpose.

    (e) * * *
    (2) Cooked dry beans, peas, and lentils may be used as a meat 
alternate or as a vegetable, but they may not be used to meet both 
component requirements in a meal.
* * * * *
    (5) Nuts and seeds and their butters are allowed as meats/meat 
alternates. Acorns, chestnuts, and coconuts do not credit as meat 
alternates due to their low protein content. Nut and seed meals or 
flours may credit only if they meet the requirements for alternate 
protein products established in appendix A to this part.
    (f) * * *
    (3) Bread and bread alternative substitutions. In American Samoa, 
Guam, Hawaii, Puerto Rico, and the U.S. Virgin Islands, and for 
sponsors in any State that serve primarily American Indian or Alaska 
Native children, any vegetable, including vegetables such as 
breadfruit, prairie turnips, plantains, sweet potatoes, and yams, may 
be served to meet the bread and bread alternatives requirement.
* * * * *

0
33. In Sec.  225.17, revise paragraph (e)(1) to read as follows:


Sec.  225.17  Procurement standards.

* * * * *
    (e) * * *
    (1) Sponsors participating in the Program may apply a geographic 
preference when procuring unprocessed locally grown or locally raised 
agricultural products, including the use of ``locally grown'', 
``locally raised'', or ``locally caught'' as procurement specifications 
or selection criteria for unprocessed or minimally processed food 
items. When utilizing the geographic preference to procure such 
products, the sponsor making the purchase has the discretion to 
determine the local area to which the geographic preference option will 
be applied, so long as there are an appropriate number of qualified 
firms able to compete;
* * * * *

PART 226--CHILD AND ADULT CARE FOOD PROGRAM

0
34. 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
35. In Sec.  226.2:
0
a. Revise the definition of ``Functionally impaired adult'';
0
b. Add in alphabetical order a definition for ``Meal component'';
0
c. Revise the definition of ``Persons with disabilities'';
0
d. Add in alphabetical order a definition for ``State licensed 
healthcare professional''; and
0
e. Add in alphabetical order a definition for ``Whole grain-rich''.
    The revisions and additions read as follows:


Sec.  226.2  Definitions.

* * * * *
    Functionally impaired adult means chronically impaired disabled 
persons 18 years of age or older, including persons with neurological 
and organic brain dysfunction, with physical or mental impairments to 
the extent that their capacity for independence and their ability to 
carry out activities of daily living is markedly limited. Activities of 
daily living include, but are not limited to, adaptive activities such 
as cleaning, shopping, cooking, taking public transportation, 
maintaining a residence, caring appropriately for one's grooming or 
hygiene, using a telephone, or using a post office. Marked limitations 
refer to the severity of impairment, and not the number of limited 
activities, and occur when the degree of limitation is such as to 
seriously interfere with the ability to function independently.
* * * * *
    Meal component meals means one of the food groups which comprise 
reimbursable meals. The meal components are: fruits, vegetables, 
grains, meats/meat alternates, and fluid milk.
* * * * *
    Persons with disabilities means persons of any age who have a 
physical or mental impairment that substantially limits one or more 
major life activities, have a record of such an impairment, or have 
been regarded as having such an impairment, and who are enrolled in an 
institution or child care facility serving a majority of persons who 
are age 18 and under.
* * * * *
    State licensed healthcare professional means an individual who is 
authorized to write medical prescriptions under State law. This may 
include, but is not limited to, a licensed physician, nurse

[[Page 32088]]

practitioner, or physician's assistant, depending on State law.
* * * * *
    Whole grain-rich is the term designated by FNS to indicate that the 
grain content of a product is between 50 and 100 percent whole grain 
with any remaining grains being enriched.
* * * * *

0
36. Revise and republish Sec.  226.20 to read as follows:


Sec.  226.20  Requirements for meals.

    (a) Meal components. Except as otherwise provided in this section, 
each meal served in the Program must contain, at a minimum, the 
indicated components:
    (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.
    (2) Vegetables. A serving may contain fresh, frozen, or canned 
vegetables, dry beans, peas, and lentils, or vegetable juice. All 
vegetables are credited based on their volume as served, except that 1 
cup of leafy greens counts as \1/2\ cup of vegetables.
    (i) Pasteurized, full-strength vegetable juice may be used to 
fulfill the entire requirement. Vegetable juice or fruit juice may only 
be served at one meal, including snack, per day.
    (ii) Cooked dry beans, peas, and lentils may be counted as either a 
vegetable or as a meat alternate, but not as both in the same dish.
    (3) Fruits. A serving may contain fresh, frozen, canned, dried 
fruits, or fruit juice. All fruits are based on their volume as served, 
except that \1/4\ cup of dried fruit counts as \1/2\ cup of fruit.
    (i) Pasteurized, full-strength fruit juice may be used to fulfill 
the entire requirement. Fruit juice or vegetable juice may only be 
served at one meal, including snack, per day.
    (ii) A vegetable may be used to meet the entire fruit requirement 
at lunch and supper. When two vegetables are served at lunch or supper, 
two different kinds of vegetables must be served.
    (4) Grains--(i) Enriched and whole grains. All grains must be made 
with enriched or whole grain meal or flour.
    (A) At least one serving per day, across all eating occasions of 
bread, cereals, and grains, must be whole grain-rich, as defined in 
Sec.  226.2. Whole grain-rich is the term designated by FNS to indicate 
that the grain content of a product is between 50 and 100 percent whole 
grain with any remaining grains being enriched.
    (B) A serving may contain whole grain-rich or enriched bread, 
cornbread, biscuits, rolls, muffins, and other bread products; or whole 
grain-rich, enriched, or fortified cereal grain, cooked pasta or noodle 
products, or breakfast cereal; or any combination of these foods.
    (ii) Breakfast cereals. Breakfast cereals are those as defined by 
the Food and Drug Administration in 21 CFR 170.3(n)(4) for ready-to-eat 
and instant and regular hot cereals. Through September 30, 2025, 
breakfast cereals must contain no more than 6 grams of total sugars per 
dry ounce. By October 1, 2025, breakfast cereals must contain no more 
than 6 grams of added sugars per dry ounce.
    (iii) Desserts. Grain-based desserts do not count toward meeting 
the grains requirement.
    (5) Meats/meat alternates--(i) Serving meats/meat alternates. 
Meats/meat alternates must be served in a main dish, or in a main dish 
and one other menu item. The creditable quantity of meats/meat 
alternates must be the edible portion as served of:
    (A) Lean meat, poultry, or fish;
    (B) Alternate protein products;
    (C) Cheese, or an egg;
    (D) Cooked dry beans, peas, and lentils;
    (E) Peanut butter; or
    (F) Any combination of these foods.
    (ii) Nuts and seeds. Nuts and seeds and their butters are allowed 
as meat alternates. Information on crediting nuts and seeds may be 
found in FNS guidance.
    (A) Nut and seed meals or flours may credit only if they meet the 
requirements for alternate protein products established in appendix A 
of this part.
    (B) Acorns, chestnuts, and coconuts do not credit as meat 
alternates because of their low protein and iron content.
    (iii) Yogurt. Four ounces (weight) or \1/2\ cup (volume) of yogurt 
equals one ounce of the meats/meat alternates component. Yogurt may be 
used to meet all or part of the meats/meat alternates component as 
follows:
    (A) Yogurt may be plain or flavored, unsweetened, or sweetened;
    (B) Through September 30, 2025, yogurt must contain no more than 23 
grams of total sugars per 6 ounces. By October 1, 2025, yogurt must 
contain no more than 12 grams of added sugars per 6 ounces (2 grams of 
added sugars per ounce);
    (C) Noncommercial or commercial standardized yogurt products, such 
as frozen yogurt, drinkable yogurt products, homemade yogurt, yogurt 
flavored products, yogurt bars, yogurt covered fruits or nuts, or 
similar products are not creditable; and
    (D) For adults, yogurt may only be used as a meat alternate when it 
is not also being used as a fluid milk substitute in the same meal.
    (iv) Tofu and soy products. Commercial tofu and soy products may be 
used to meet all or part of the meats/meat alternates component in 
accordance with FNS guidance and appendix A of this part. Non-
commercial and non-standardized tofu and soy products cannot be used.
    (v) Beans, peas, and lentils. Cooked dry beans, peas, and lentils 
may be used to meet all or part of the meats/meat alternates component. 
Beans, peas, and lentils include black beans, garbanzo beans, lentils, 
kidney beans, mature lima beans, navy beans, pinto beans, and split 
peas. Beans, peas, and lentils may be counted as either a meat/meat 
alternate or as a vegetable, but not as both in the same dish.
    (vi) Other meat alternates. Other meat alternates, such as cheese, 
eggs, and nut butters may be used to meet all or part of the meats/meat 
alternates component.
    (b) Infant meals--(1) Feeding infants. Foods in reimbursable meals 
served to infants ages birth through 11 months must be of a texture and 
a consistency that are appropriate for the age and development of the 
infant being fed. Foods must also be served during a span of time 
consistent with the infant's eating habits.
    (2) Breastmilk and iron-fortified formula. Breastmilk or iron-
fortified infant formula, or portions of both, must be served to 
infants birth through 11 months of age. An institution or facility must 
offer at least one type of iron-fortified infant formula. Meals 
containing breastmilk or iron-fortified infant formula supplied by the 
institution or facility, or by the parent or guardian, are eligible for 
reimbursement.

[[Page 32089]]

    (i) Parent or guardian provided breastmilk or iron-fortified 
formula. A parent or guardian may choose to accept the offered formula, 
or decline the offered formula and supply expressed breastmilk or an 
iron-fortified infant formula instead. Meals in which a mother directly 
breastfeeds her child at the child care institution or facility are 
also eligible for reimbursement. When a parent or guardian chooses to 
provide breastmilk or iron-fortified infant formula and the infant is 
consuming solid foods, the institution or facility must supply all 
other required meal components in order for the meal to be 
reimbursable.
    (ii) Breastfed infants. For some breastfed infants who regularly 
consume less than the minimum amount of breastmilk per feeding, a 
serving of less than the minimum amount of breastmilk may be offered. 
In these situations, additional breastmilk must be offered at a later 
time if the infant will consume more.
    (3) Solid foods. The gradual introduction of solid foods may begin 
at six months of age, or before or after six months of age if it is 
developmentally appropriate for the infant and in accordance with FNS 
guidance.
    (4) Infant meal pattern. Infant meals must have, at a minimum, each 
of the food components indicated, in the amount that is appropriate for 
the infant's age.
    (i) Birth through 5 months--(A) Breakfast. Four to 6 fluid ounces 
of breastmilk or iron-fortified infant formula, or portions of both.
    (B) Lunch or supper. Four to 6 fluid ounces of breastmilk or iron-
fortified infant formula, or portions of both.
    (C) Snack. Four to 6 fluid ounces of breastmilk or iron-fortified 
infant formula, or portions of both.
    (ii) 6 through 11 months. Breastmilk or iron-fortified formula, or 
portions of both, is required. Meals are reimbursable when institutions 
and facilities provide all the components in the meal pattern that the 
infant is developmentally ready to accept.
    (A) Breakfast, lunch, or supper. Six to 8 fluid ounces of 
breastmilk or iron-fortified infant formula, or portions of both; and 0 
to \1/2\ ounce equivalent of iron-fortified dry infant cereal; or 0-4 
tablespoons meat, fish, poultry, whole egg, cooked dry beans, peas, and 
lentils; or 0 to 2 ounces (weight) of cheese; or 0 to 4 ounces (volume) 
of cottage cheese; or 0 to 4 ounces of yogurt; and 0 to 2 tablespoons 
of vegetable, fruit, or portions of both. Fruit juices and vegetable 
juices must not be served.
    (B) Snack. Two to 4 fluid ounces of breastmilk or iron-fortified 
infant formula; and 0 to \1/2\ ounce equivalent bread; or 0-\1/4\ ounce 
equivalent crackers; or 0-\1/2\ ounce equivalent infant cereal or 
ready-to-eat cereals; and 0 to 2 tablespoons of vegetable or fruit, or 
portions of both. Fruit juices and vegetable juices must not be served. 
A serving of grains must be whole grain-rich, enriched meal, or 
enriched flour.
    (5) Infant meal pattern table. The minimum amounts of meal 
components to serve to infants, as described in paragraph (b)(4) of 
this section, are:

                                Table 1 to Paragraph (b)(5)--Infant Meal Patterns
----------------------------------------------------------------------------------------------------------------
                Infants                     Birth through 5 months                 6 through 11 months
----------------------------------------------------------------------------------------------------------------
Breakfast, Lunch, or Supper...........  4-6 fluid ounces breast milk    6-8 fluid ounces breast milk \1\ or
                                         \1\ or formula \2\.             formula; \2\ and
                                                                        0-\1/2\ ounce equivalent infant cereal;
                                                                         2 3 or
                                                                        0-4 tablespoons meat, fish, poultry,
                                                                         whole egg, cooked dry beans, peas, and
                                                                         lentils; or
                                                                        0-2 ounces of cheese; or
                                                                        0-4 ounces (volume) of cottage cheese;
                                                                         or
                                                                        0-4 ounces or \1/2\ cup of yogurt; \4\
                                                                         or a combination of the above; \5\ and
                                                                        0-2 tablespoons vegetable or fruit, or a
                                                                         combination of both.5 6
Snack.................................  4-6 fluid ounces breast milk    2-4 fluid ounces breast milk \1\ or
                                         \1\ or formula \2\.             formula; \2\ and
                                                                        0-\1/2\ ounce equivalent bread; 3 7 or
                                                                        0-\1/4\ ounce equivalent crackers; 3 7
                                                                         or
                                                                        0-\1/2\ ounce equivalent infant cereal;
                                                                         2 3 or
                                                                        0-\1/4\ ounce equivalent ready-to-eat
                                                                         breakfast cereal; 3 5 7 8 and
                                                                        0-2 tablespoons vegetable or fruit, or a
                                                                         combination of both.5 6
----------------------------------------------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served; however, it is recommended that breast milk be
  served from birth through 11 months. For some breastfed infants who regularly consume less than the minimum
  amount of breast milk per feeding, a serving of less than the minimum amount of breast milk may be offered,
  with additional breast milk offered at a later time if the infant will consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Information on crediting grain items may be found in FNS guidance.
\4\ Through September 30, 2025, yogurt must contain no more than 23 grams of total sugars per 6 ounces. By
  October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added
  sugars per ounce).
\5\ A serving of this component is required when the infant is developmentally ready to accept it.
\6\ Fruit and vegetable juices must not be served.
\7\ A serving of grains must be whole grain-rich, enriched meal, enriched flour, bran, or germ.
\8\ Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry
  ounce. By October 1, 2025, breakfast cereals must contain no more than 6 grams of added sugars per dry ounce.

    (c) Meal patterns for children age 1 through 18 and adult 
participants. Institutions and facilities must serve the meal 
components and quantities specified in the following meal patterns for 
children and adult participants in order to qualify for reimbursement.
    (1) Breakfast. Fluid milk, vegetables or fruit, or portions of 
both, and grains are required components of the breakfast meal. Meats/
meat alternates may be offered to meet the entire grains requirement a 
maximum of three times per week. The minimum amounts of meal components 
to be served at breakfast are as follows:

[[Page 32090]]



                                        Table 2 to Paragraph (c)(1)--Child and Adult Care Food Program Breakfast
                                               [Select the appropriate components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
 Meal components and food items \1\ --------------------------------------------------------------------------------------------------------------------
                                            Ages 1-2                Ages 3-5               Ages 6-12            Ages 13-18 \2\       Adult participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid Milk.........................  4 fluid ounces \3\....  6 fluid ounces \4\....  8 fluid ounces \5\...  8 fluid ounces \5\...  8 fluid ounces.\6\
Vegetables, fruits, or portions of   \1/4\ cup.............  \1/2\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
 both \7\.
Grains \8\.........................  \1/2\ ounce equivalent  \1/2\ ounce equivalent  1 ounce equivalent...  1 ounce equivalent...  2 ounce equivalents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all three components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool care and adult day care centers.
\2\ At-risk afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional
  needs.
\3\ Must serve unflavored whole milk to children age 1.
\4\ Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\5\ May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\6\ May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in the place
  of milk once per day for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces
  (by weight) or \3/4\ cup (by volume) of yogurt is the equivalent of 8 ounces of fluid milk. Through September 30, 2025, yogurt must contain no more
  than 23 grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of
  added sugars per ounce).
\7\ Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day.
\8\ Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains
  requirement. Meats/meat alternates may be offered in place of the entire grains requirement, up to 3 times per week at breakfast. One ounce equivalent
  of meats/meat alternates credits equal to one ounce equivalent of grains. Through September 30, 2025, breakfast cereals must contain no more than 6
  grams of total sugars per dry ounce. By October 1, 2025, breakfast cereals must contain no more than 6 grams of added sugars per dry ounce.
  Information on crediting grain items and meats/meat alternates may be found in FNS guidance.

    (2) Lunch and supper. Fluid milk, meats/meat alternates, 
vegetables, fruits, and grains are required components in the lunch and 
supper meals. The minimum amounts of meal components to be served at 
lunch and supper are as follows:

                                     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
 Meal components and food items \1\ --------------------------------------------------------------------------------------------------------------------
                                            Ages 1-2                Ages 3-5               Ages 6-12            Ages 13-18 \2\       Adult participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk.........................  4 fluid ounces \3\....  6 fluid ounces \4\....  8 fluid ounces \5\...  8 fluid ounces \5\...  8 fluid ounces.\6\
Meats/meat alternates \7\..........  1 ounce equivalent....  1\1/2\ ounce            2 ounce equivalents..  2 ounce equivalents..  2 ounce equivalents.
                                                              equivalents.
Vegetables \8\.....................  \1/8\ cup.............  \1/4\ cup.............  \1/2\ cup............  \1/2\ cup............  \1/2\ cup.
Fruits \8\.........................  \1/8\ cup.............  \1/4\ cup.............  \1/4\ cup............  \1/4\ cup............  \1/2\ cup.
Grains \9\.........................  \1/2\ ounce equivalent  \1/2\ ounce equivalent  1 ounce equivalent...  1 ounce equivalent...  2 ounce equivalents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all five components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool care and adult day care centers.
\2\ At-risk afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional
  needs.
\3\ Must serve unflavored whole milk to children age 1.
\4\ Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\5\ May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\6\ May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in place of
  milk once per day for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces
  (by weight) or \3/4\ cup (by volume) of yogurt is the equivalent of 8 ounces of fluid milk. A serving of fluid milk is optional for suppers served to
  adult participants.
\7\ Alternate protein products must meet the requirements in appendix A to this part. Through September 30, 2025, yogurt must contain no more than 23
  grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added
  sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
\8\ Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day. A
  vegetable may be offered to meet the entire fruit requirement. When two vegetables are served at lunch or supper, two different kinds of vegetables
  must be served.
\9\ Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains
  requirement. Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025,
  breakfast cereal must contain no more than 6 grams of added sugars per dry ounce. Information on crediting grain items may be found in FNS guidance.

    (3) Snack. Serve two of the following five components: Fluid milk, 
meats/meat alternates, vegetables, fruits, and grains. Fruit juice, 
vegetable juice, and milk may comprise only one component of the snack. 
The minimum amounts of meal components to be served at snacks are as 
follows:

                                          Table 4 to Paragraph (c)(3)--Child and Adult Care Food Program Snack
                                              [Select two of the five components for a reimbursable snack]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Minimum quantities
 Meal components and food items \1\ --------------------------------------------------------------------------------------------------------------------
                                            Ages 1-2                Ages 3-5               Ages 6-12            Ages 13-18 \2\       Adult participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk.........................  4 fluid ounces \3\....  4 fluid ounces \4\....  8 fluid ounces \5\...  8 fluid ounces \5\...  8 fluid ounces.\6\
Meats/meat alternates \7\..........  \1/2\ ounce equivalent  \1/2\ ounce equivalent  1 ounce equivalent...  1 ounce equivalent...  1 ounce equivalent.
Vegetables \8\.....................  \1/2\ cup.............  \1/2\ cup.............  \3/4\ cup............  \3/4\ cup............  \1/2\ cup.
Fruits \8\.........................  \1/2\ cup.............  \1/2\ cup.............  \3/4\ cup............  \3/4\ cup............  \1/2\ cup.
Grains \9\.........................  \1/2\ ounce equivalent  \1/2\ ounce equivalent  1 ounce equivalent...  1 ounce equivalent...  1 ounce equivalent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve two of the five components for a reimbursable snack. Milk and juice may not be served as the only two items in a reimbursable snack.
\2\ At-risk afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional
  needs.
\3\ Must serve unflavored whole milk to children age 1.
\4\ Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\5\ May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\6\ May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in place of
  milk, once per day for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces
  (by weight) or \3/4\ cup (by volume) of yogurt is the equivalent of 8 ounces of fluid milk.

[[Page 32091]]

 
\7\ Alternate protein products must meet the requirements in appendix A to this part. Through September 30, 2025, yogurt must contain no more than 23
  grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added
  sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
\8\ Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day.
\9\ Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains
  requirement. Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025,
  breakfast cereal must contain no more than 6 grams of added sugar per dry ounce. Information on crediting grain items may be found in FNS guidance.

    (d) Food preparation. Deep-fat fried foods that are prepared on-
site cannot be part of the reimbursable meal. For this purpose, deep-
fat frying means cooking by submerging food in hot oil or other fat. 
Foods that are pre-fried, flash-fried, or par-fried by a commercial 
manufacturer may be served, but must be reheated by a method other than 
frying.
    (e) Unavailability of fluid milk--(1) Temporary. When emergency 
conditions prevent an institution or facility normally having a supply 
of milk from temporarily obtaining milk deliveries, the State agency 
may approve the service of breakfast, lunches, or suppers without milk 
during the emergency period.
    (2) Continuing. When an institution or facility is unable to obtain 
a supply of milk on a continuing basis, the State agency may approve 
service of meals without milk, provided an equivalent amount of canned, 
whole dry or fat-free dry milk is used in the preparation of the 
components of the meal set forth in paragraph (a) of this section. (f) 
Grain substitutions. In American Samoa, Guam, Hawaii, Puerto Rico, and 
the U.S. Virgin Islands, and in institutions or facilities in any State 
that serve primarily American Indian or Alaska Native participants, any 
vegetable, including vegetables such as breadfruit, prairie turnips, 
plantains, sweet potatoes, and yams, may be served to meet the grains 
requirement.
    (g) Modifications and variations in reimbursable meals and snacks 
as described in paragraphs (a) through (c) of this section--(1) 
Modifications for disability reasons. Institutions and facilities must 
make meal modifications including substitutions in meals and snacks 
described in this section for participants with a disability and whose 
disability restricts their diet. The modification requested must be 
related to the disability and must be offered at no additional cost to 
the child or adult participant.
    (i) In order to receive Federal reimbursement when a modified meal 
does not meet the meal pattern requirements specified in this section, 
the institution or facility must obtain from the household a written 
medical statement signed by a State licensed healthcare professional. 
By October 1, 2025, institutions and facilities must also accept a 
medical statement signed by a registered dietitian. The medical 
statement must provide sufficient information about the child or adult 
participant's dietary restrictions, such as foods to be omitted and 
recommended alternatives, if appropriate. Modified meals that meet the 
meal pattern requirements in this section are reimbursable with or 
without a medical statement.
    (ii) Institutions and facilities must ensure that parents and 
guardians, and their children when age-appropriate at institution or 
facility discretion; adult participants; and persons on behalf of adult 
participants have notice of the procedure for requesting meal 
modifications for disabilities and the process for procedural 
safeguards related to meal modifications for disabilities. See 
Sec. Sec.  15b.6(b) and 15b.25 of this title.
    (iii) Expenses incurred when making meal modifications that exceed 
Program reimbursement rates must be paid by the institution or 
facility; costs may be paid from the institution or facility's 
nonprofit food service account.
    (iv) A parent, guardian, adult participant, or a person on behalf 
of an adult participant may supply one or more components of the 
reimbursable meal as long as the institution or facility provides at 
least one required meal component.
    (2) Variations for non-disability reasons. (i) Institutions and 
facilities should consider participants' dietary preferences when 
planning and preparing meals and snacks. Any variations must be 
consistent with the meal pattern requirements specified in this 
section.
    (ii) Expenses incurred from variations that exceed program 
reimbursement rates must be paid by the institution or facility; costs 
may be paid from the institution or facility's nonprofit food service 
account.
    (iii) A parent, guardian, adult participant, or a person on behalf 
of an adult participant may supply one component of the reimbursable 
meal as long as the component meets the requirements described in this 
section and the institution or facility provides the remaining 
components.
    (3) Fluid milk substitutes for non-disability reasons. (i) An 
institution or facility may offer fluid milk substitutes based on a 
written request from a child's parent or guardian, an adult 
participant, a person on behalf of an adult participant, a State 
licensed healthcare professional, or registered dietitian for 
participants with dietary needs that are not disabilities that 
identifies the reason for the substitute. An institution or facility 
choosing to offer fluid milk substitutes for a non-disability reason is 
not required to offer the specific fluid milk substitutes requested but 
may offer the fluid milk substitutes of its choice, provided the fluid 
milk substitutes offered meet the requirements of paragraph (g)(3)(ii) 
of this section. For disability-related meal modifications, see 
paragraph (g)(1) of this section.
    (ii) If an institution or facility chooses to offer one or more 
fluid milk substitutes for non-disability reasons, the fluid milk 
substitutes must provide, at a minimum, the nutrients listed in the 
following table. Fluid milk substitutes must be fortified in accordance 
with fortification guidelines issued by the Food and Drug 
Administration.

  Table 5 to Paragraph (g)(3)(ii)--Nutrient Requirements for Fluid Milk
                               Substitutes
------------------------------------------------------------------------
                 Nutrient                        Per cup (8 fl. oz.)
------------------------------------------------------------------------
Calcium...................................  276 mg.
Protein...................................  8 g.
Vitamin A.................................  150 mcg. retinol activity
                                             equivalents (RAE).
Vitamin D.................................  2.5 mcg.
Magnesium.................................  24 mg.
Phosphorus................................  222 mg.
Potassium.................................  349 mg.

[[Page 32092]]

 
Riboflavin................................  0.44 mg.
Vitamin B-12..............................  1.1 mcg.
------------------------------------------------------------------------

    (iii) Expenses incurred when providing fluid milk substitutes that 
exceed Program reimbursements must be paid by the participating 
institution or facility; costs may be paid from the institution or 
facility's nonprofit food service account.
    (h) Special variations. FNS may approve variations in the meal 
components of the meals on an experimental or continuing basis in any 
institution or facility where there is evidence that such variations 
are nutritionally sound and are necessary to meet ethnic, religious, 
economic, or physical needs.
    (i) Meals prepared in schools. The State agency must allow 
institutions and facilities which serve meals to children 5 years old 
and older and are prepared in schools participating in the National 
School Lunch and School Breakfast Programs to substitute the meal 
pattern requirements of the regulations governing those Programs (parts 
210 and 220 of this chapter, respectively) for the meal pattern 
requirements contained in this section.
    (j) Meal planning. Institutions and facilities must plan for and 
order meals on the basis of current participant trends, with the 
objective of providing only one meal per participant at each meal 
service. Records of participation and of ordering or preparing meals 
must be maintained to demonstrate positive action toward this 
objective. In recognition of the fluctuation in participation levels 
which makes it difficult to estimate precisely the number of meals 
needed and to reduce the resultant waste, any excess meals that are 
ordered may be served to participants and may be claimed for 
reimbursement, unless the State agency determines that the institution 
or facility has failed to plan and prepare or order meals with the 
objective of providing only one meal per participant at each meal 
service.
    (k) Time of meal service. State agencies may require any 
institution or facility to allow a specific amount of time to elapse 
between meal services or require that meal services not exceed a 
specified duration.
    (l) Sanitation. Institutions and facilities must ensure that in 
storing, preparing, and serving food proper sanitation and health 
standards are met which conform with all applicable State and local 
laws and regulations. Institutions and facilities must ensure that 
adequate facilities are available to store food or hold meals.
    (m) Donated commodities. Institutions and facilities must 
efficiently use in the Program any foods donated by the Department and 
accepted by the institution or facility.
    (n) Family style meal service. Family style is a type of meal 
service which allows children and adults to serve themselves from 
common platters of food with the assistance of supervising adults. 
Institutions and facilities choosing to exercise this option must be in 
compliance with the following practices:
    (1) A sufficient amount of prepared food must be placed on each 
table to provide the full required portions of each of the components, 
as outlined in paragraphs (c)(1) and (2) of this section, for all 
children or adults at the table and to accommodate supervising adults 
if they wish to eat with the children and adults.
    (2) Children and adults must be allowed to serve the meal 
components themselves, with the exception of fluids (such as milk). 
During the course of the meal, it is the responsibility of the 
supervising adults to actively encourage each child and adult to serve 
themselves the full required portion of each meal component of the meal 
pattern. Supervising adults who choose to serve the fluids directly to 
the children or adults must serve the required minimum quantity to each 
child or adult.
    (3) Institutions and facilities which use family style meal service 
may not claim second meals for reimbursement.
    (o) Offer versus Serve. (1) Each adult day care center and at-risk 
afterschool program must offer its participants all of the required 
food servings as set forth in paragraphs (c)(1) and (2) of this 
section. However, at the discretion of the adult day care center or at-
risk afterschool program, participants may be permitted to decline:
    (i) For adults--(A) One of the four food items required at 
breakfast (one serving of fluid milk; one serving of vegetable or 
fruit, or a combination of both; and two servings of grains, or meat or 
meat alternates);
    (B) Two of the five meal components required at lunch (fluid milk; 
vegetables; fruit; grain; and meat or meat alternate); and
    (C) One of the four meal components required at supper (vegetables; 
fruit; grain; and meat or meat alternate).
    (ii) For children. Two of the five meal components required at 
supper (fluid milk; vegetables; fruit; grain; and meat or meat 
alternate).
    (2) In pricing programs, the price of the reimbursable meal must 
not be affected if a participant declines a food item.
    (p) Prohibition on using foods and beverages as punishments or 
rewards. Meals served under this part must contribute to the 
development and socialization of children. Institutions and facilities 
must not use foods and beverages as punishments or rewards.
    (q) Severability. If any provision of this section is held to be 
invalid or unenforceable by its terms, or as applied to any person or 
circumstances, it shall be severable from this section and not affect 
the remainder thereof. In the event of such holding of invalidity or 
unenforceability of a provision, the meal pattern requirements covered 
by that provision reverts to the version that immediately preceded the 
invalidated provision.

0
37. In Sec.  226.22, revise paragraph (c)(1) to read as follows:


Sec.  226.22  Procurement standards.

* * * * *
    (c) * * *
    (1) Institutions participating in the Program may apply a 
geographic preference when procuring unprocessed locally grown or 
locally raised agricultural products, including the use of ``locally 
grown'', ``locally raised'', or ``locally caught'' as procurement 
specifications or selection criteria for unprocessed or minimally 
processed food items. When utilizing the geographic preference to 
procure such products, the institution making the purchase has the 
discretion to determine the local area to which the geographic 
preference option will be applied so long as there are an

[[Page 32093]]

appropriate number of qualified firms able to compete;
* * * * *

Cynthia Long,
Administrator, Food and Nutrition Service.


    Note:  The following appendix will not appear in the Code of 
Federal Regulations.

Appendix A--Regulatory Impact Analysis

I. Statement of Need

    On February 7, 2023, USDA published a proposed rule, Child 
Nutrition Programs: Revisions to Meal Patterns Consistent with the 
2020 Dietary Guidelines for Americans, to further align school meal 
nutrition requirements with the goals of the Dietary Guidelines for 
Americans, 2020-2025 (Dietary Guidelines).\1\ USDA is now finalizing 
that proposed rule with the expectation that these changes will 
continue to improve the health of meals and snacks served in child 
nutrition programs in the coming years. To develop the rule, USDA 
considered broad stakeholder input, including written public 
comments received in response to the proposed rule, and a 
comprehensive review of the latest Dietary Guidelines. The rule 
represents the next stage of the rulemaking process to permanently 
update and improve school meal pattern requirements. This rule 
includes a focus on nutrition requirements for sodium, whole grains, 
and milk in school meals as well as new requirements to limit added 
sugars. Further, in addition to addressing these and other nutrition 
requirements, this rule finalizes a variety of changes to school 
meal requirements from the 2020 proposed rule, Simplifying Meal 
Service and Monitoring Requirements in the National School Lunch and 
School Breakfast Programs.\2\ Updates for the Child and Adult Care 
Food Program (CACFP) and Summer Food Service Program (SFSP) are also 
included in certain provisions of this rule. Finally, USDA is 
issuing a final rule of the provisions of this rulemaking that 
strengthen the Buy American requirement.\3\
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    \1\ 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.
    \2\ Simplifying Meal Service and Monitoring Requirements in the 
National School Lunch and School Breakfast Programs (85 FR 4094, 
January 23, 2020). Available at: https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school.
    \3\ Statutory language can be found in the Richard B. Russell 
National School Lunch Act (NSLA) section 12(n) on page 56: https://www.fns.usda.gov/nsla.
---------------------------------------------------------------------------

II. Background

    The National School Lunch Program (NSLP) and School Breakfast 
Program (SBP) were established in 1946 and 1966, respectively. Both 
programs provide nutritionally balanced and low or no-cost meals to 
children in schools each day. In 2012, USDA issued a final rule that 
increased the availability of nutritious foods like fruits, 
vegetables, and whole grains and established limits for sodium in 
school meals, among other key changes. Since then, school nutrition 
professionals, industry partners, and other stakeholders have made 
tremendous strides in improving the nutritional quality of school 
meals, and recent research shows that school meals are the 
healthiest meals children eat during the day.\4\ Many components of 
the 2012 nutrition requirements were successfully implemented, such 
as vegetable subgroups at lunch and calorie ranges for school meals. 
However, some requirements faced challenges, including Congressional 
intervention and administrative policies that delayed implementation 
or allowed less stringent requirements for milk, whole grains, and 
sodium. In addition, during the COVID-19 public health emergency, 
schools required meal pattern flexibilities to ensure that children 
had continued access to nutritious meals amid supply chain 
challenges. Program operators continue to face pandemic-related and 
supply chain challenges. To that end, this rule considers those 
challenges and uses a phased-in approach to implementation to 
strengthen the nutritional quality of school meals over time and 
provide ongoing support to school nutrition professionals. This rule 
builds on USDA's prior rulemakings, such as Child Nutrition 
Programs: Revisions to Meal Patterns Consistent With the 2020 
Dietary Guidelines for Americans proposed rule and Child Nutrition 
Programs: Transitional Standards for Milk, Whole Grains, and Sodium 
(87 FR 6984), from February 7, 2022, to further align school meal 
nutrition requirements with the goals of the Dietary Guidelines, 
2020-2025.
---------------------------------------------------------------------------

    \4\ 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 
study found that foods consumed at schools provided the best mean 
diet quality of major US food sources.
---------------------------------------------------------------------------

III. Comments

    USDA received 51 comments on the Regulatory Impact Analysis 
(RIA) in response to the 2023 proposed rule Child Nutrition 
Programs: Revisions to Meal Patterns Consistent with the 2020 
Dietary Guidelines for Americans. The majority (45 respondents) 
commented on the costs, 2 respondents commented on long-term 
benefits, and 3 respondents commented on gaps in the RIA of the 
proposed rule.
    There were 26 comments on the RIA for the 2020 proposed rule 
Simplifying Meal Service and Monitoring Requirements in the National 
School Lunch and School Breakfast Programs. This rule includes five 
provisions from the 2020 proposed rule:

 Meats/Meat Alternates at Breakfast
 Dry Beans, Peas, and Lentils at Lunch
 Meal Modifications
 Clarification on Potable Water Requirements
 Synthetic Trans Fats

    The comments received on the regulatory impacts of the 2020 
proposed rule did not include any comments related to expected 
impacts of the specific provisions included in this rule.

Comments on the 2023 Proposed Rule Child Nutrition Programs: 
Revisions to Meal Patterns Consistent With the 2020 Dietary 
Guidelines for Americans

     Respondents expressed concern that implementation of 
the 2023 proposed rule would cause school districts to take on more 
debt or make budget cuts in other areas to fund school meals that 
meet the updated requirements. Respondents noted that though scratch 
cooking may be the most efficient way to reduce sodium levels in 
meals, it could be costly and should be accounted for in the cost-
benefit-analysis. Other respondents pointed out that schools could 
face additional costs passed along from manufacturers having to 
reformulate their products and change their labels.

USDA Response

    The decisions around the rule have taken into consideration the 
comments received on the 2023 proposed rule regarding costs to 
school districts. This rule maintains the current flavored milk 
requirements (Alternative B), which is the less restrictive and less 
costly option. This RIA also estimates $7 million in average annual 
cost savings associated with aligning afterschool snacks with CACFP 
snack requirements and $5 million in average annual cost savings 
from simplifying requirements for schools that choose to substitute 
vegetables for fruits at breakfast. This rule provides additional 
operational or administrative flexibilities for geographic 
preference, meats/meat alternates as breakfast, nuts and seeds, and 
beans, peas and lentils at lunch.
    The sodium limits finalized in this rule are less restrictive 
and intended to be more attainable as compared to the proposed 
limits. Instead of three 10 percent reductions in NSLP and two 10 
percent reductions in SBP over several years, this rule includes one 
reduction in each program to meet Target 2 levels from the 2012 
rule, effective school year (SY) 2027-2028. USDA recognizes that in 
order to meet the sodium limits included in this rule, additional 
recipe and product reformulation may need to occur over time. To 
that end, to develop the sodium limits in this rulemaking, USDA 
considered the Food and Drug Administration's (FDA) voluntary sodium 
reduction goals, which aim to reduce sodium across the U.S. food 
supply. USDA expects that aligning school meal sodium limits with 
FDA's voluntary sodium reduction goals may help support children's 
acceptance of school lunches and breakfasts with less sodium, as the 
school meal reductions will occur alongside sodium reductions in the 
broader U.S. food supply. While USDA recognizes that schools may 
choose to introduce more scratch and quick-scratch cooking to meet 
the sodium limits, USDA lacks data to fully estimate those costs. 
However, potential equipment costs associated with increased scratch 
cooking are estimated in the ``Uncertainties/Limitations'' section 
and table 29 of this RIA. The ``Uncertainties/Limitations'' section 
also includes discussion of other uncertainties in

[[Page 32094]]

this analysis and their potential impact on the costs and benefits 
of this rule.
    The weekly average sodium limits are approximately a 15 percent 
reduction for lunch and 10 percent reduction for breakfast and will 
take effect in SY 2027-2028. Schools can maintain current sodium 
limits (Target 1A) prior to the SY 2027-2028 reduction. This will 
allow time and flexibility for a variety of sodium reduction 
practices that the RIA has estimated costs for, including product 
reformulation, scratch cooking, menu adjustments, reducing the 
frequency of offering higher sodium foods, and recipe alterations.
     Respondents mentioned areas of impact that were not 
considered in the proposed RIA. These respondents noted that CACFP 
and costs specific to its sponsors and providers were largely 
excluded from the RIA. One respondent suggested applying the methods 
used to estimate the reporting and record keeping costs for the Buy 
American provision to the other proposed provisions. Another 
respondent recommended that USDA conduct a marginal analysis on the 
cost of single-percent changes to the Buy American non-domestic 
ceiling and provide more information on the benefits of this 
provision on child nutrition.

USDA Response

    The reporting and record keeping administrative burden hours 
estimated in this RIA are in accordance with the information 
collection request for these activities approved by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act. USDA 
anticipates regulatory familiarization costs, including state 
administrative costs, local level training costs, and costs 
associated with adjusting purchasing patterns and menus at the local 
level. The administrative costs associated with this familiarization 
period were also expected for the 2012 final rule, which is used as 
a reference for the administrative costs for this rule; see 
Administrative Costs section.
    Anticipated costs to CACFP sponsors and providers have been 
incorporated into the RIA in response to public comment. Costs 
include reporting and record keeping costs, administrative costs, 
familiarization costs, and local training costs, as well as costs 
associated with changes in purchasing patterns and menus. CACFP 
purchasing patterns and menu impacts are most likely to occur due to 
the added sugars provision, specifically the added sugars limit of 
12 grams per 6 oz of yogurt. This replaces the existing limit of 23 
grams of total sugars per 6 oz of yogurt for CACFP menus. The cost 
impact for CACFP is estimated to be about $2 million (table 6). 
Other provisions that apply to CACFP in this rule are not estimated 
to have a cost impact because they are technical corrections, 
clarifications, or add flexibility to menu planning.
    The costs associated with the Buy American provision are based 
on increases in reporting and record keeping burden due to the final 
rule. Instead of a 5 percent ceiling as proposed, the final rule 
institutes a phased approach over seven school years to reach the 5 
percent ceiling on the non-domestic commercial foods a school food 
authority may purchase per school year. The phased implementation 
will begin in SY 2025-2026 with a 10 percent non-domestic food cost 
cap, with an 8 percent cap beginning in SY 2028-2029, and finally a 
5 percent cap in SY 2031-2032. We estimate a $3 million annual total 
food cost increase once the phased in non-domestic foods ceiling 
reaches 5 percent. Based on the average use of exceptions by school 
food authorities (8.5 percent), each single-percent reduction in the 
cap equals approximately $0.8 million in annual costs. These 
estimates are further detailed in the ``Buy American'' section 
(table 18). In response to public comments that suggested a 5 
percent cap is too restrictive under current procurement conditions, 
USDA intends to help schools, State agencies, and other stakeholders 
adjust to the new requirement and achieve compliance with the Buy 
American provision through a phased in approach. The mission of 
Child Nutrition Programs is to serve children nutritious meals and 
support American agriculture.

IV. Summary of Impacts

    The estimated impacts of this rule primarily reflect changes in 
the foods purchased for use in school meals, administrative 
familiarization, and labor costs incurred by schools for meal 
production. While this rule takes effect SY 2024-2025, the required 
changes will be gradually phased in over time. Program operators 
will not be required to make any changes to their menus as a result 
of this rule until SY 2025-2026 at the earliest. USDA estimates this 
rule will cost \5\ schools between $0.02 and $0.04 per meal,\6\ or 
an average of $206 million \7\ annually including both the SBP and 
NSLP starting in SY 2024-2025, accounting for the fact that changes 
will be implemented gradually and adjusting for annual inflation.\8\ 
Annual costs range from $53 million to $283 million over eight 
school years, adjusting for yearly inflation (table 20). While some 
changes--such as aligning the NSLP snack meal pattern with that of 
CACFP or simplifying requirements for schools that choose to 
substitute vegetables for fruits at breakfast--are estimated to 
reduce school food costs or have no cost impact, other changes, such 
as added sugars and sodium limits, are estimated to increase food 
costs. There are no estimated changes in Federal costs due to the 
changes in this final rule, as the rule does not impact the Federal 
reimbursement rate for school meals and is not expected to 
significantly impact baseline participation.
---------------------------------------------------------------------------

    \5\ 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.
    \6\ This is about 0.5% of the average cost to SFAs per breakfast 
and lunch, in 2024 dollars. Factoring 4% annual inflation, breakfast 
costs $4.03 and lunch costs $5.64 for SFAs to produce. Based on 
School Nutrition Meal Cost Study (SNMCS) Report--Volume 3, the 
average SFA had a reported cost of $3.81 per NSLP lunch and $2.72 
per SBP breakfast in SY 2014-2015 (https://fns-prod.azureedge.us/sites/default/files/resource-files/SNMCS-Volume3.pdf).
    \7\ This annual average is based on this rulemaking finalizing 
Milk Alternative B in the proposed rule.
    \8\ Using 2023 dollars and not adjusting for annual inflation 
results in $1.256 billion dollars over eight school years (over nine 
fiscal years) or $52 to $227 million annually ($0.03 per meal), see 
appendix.
---------------------------------------------------------------------------

    The changes in this rule are achievable and realistic for 
schools and address the need for strong nutrition requirements in 
school meals. This analysis provides nine-year cost streams to 
project potential impacts over each impacted fiscal year (FY), 
though FY 2024 and FY 2032 are shown as half year costs to account 
for the fact that implementation of this rule spans eight total 
school years (table 1). These same data are presented in table A in 
the ``Appendix'' section by school year.

[[Page 32095]]

[GRAPHIC] [TIFF OMITTED] TR25AP24.097

    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 rule. The next section provides an 
impact analysis for each change.
---------------------------------------------------------------------------

    \9\ No adjustment for inflation was done for this table aside 
for inflation from the time-period of data collection up to 2023.
    \10\ For data in 2023 dollars presented by school years (July-
June) instead of fiscal years (October-September), see table A in 
the `Appendix' section. Totals are the same as table 1 and the 
breakdown of costs is shown across the eight school years.
    \11\ First year of provision implementation presents half a year 
of costs from SY 2024-2025 (first half of the school year).
    \12\ Including costs from the second half of SY 2024-2025 and 
the first half of SY 2025-2026; this style is also true of FY 2026 
through 2031.
    \13\ Presenting half a year of costs from SY 2030-2031 (second 
half of the school year).
    \14\ This is eight full fiscal years, including 7 full fiscal 
years and two half years.
    \15\ The nominal cost stream values are based upon 2023 
participation levels and assumes participation holds steady through 
FY 2032.
    \16\ The percentage of baseline is calculated as total costs of 
the proposed changes divided by the total expected costs of the 
NSLP, SBP, and CACFP programs in each fiscal year. Expected costs 
for NSLP, SBP and CACFP are inflated from FY 2019 based on actual 
and forecasted food price inflation.

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[[Page 32096]]

[GRAPHIC] [TIFF OMITTED] TR25AP24.098

V. Section by Section Analysis

    This rule finalizes the following provisions from the 2023 
proposed rule:

 Added Sugars
 Milk
 Whole Grains
 Sodium
 Substituting Vegetables for Grains in Tribal Communities
 Traditional Indigenous Foods
 Afterschool Snacks
 Substituting Vegetables for Fruits at Breakfast
 Nuts and Seeds
 Competitive Foods: Bean Dip Exemption
 Professional Standards: Hiring Exemption for Medium and 
Large Local Educational
 Agencies
 Buy American
 Geographic Preference
 Miscellaneous Changes

    This rule also finalizes the following provisions from the 2020 
proposed rule:

 Meats/Meat Alternates at Breakfast
 Beans, Peas, and Lentils at Lunch
 Meal Modifications
 Clarification on Potable Water Requirements
 Synthetic Trans Fats

    USDA worked closely with program stakeholders to gather input 
for the proposed rule. The public was also invited to submit 
comments on the transitional standards rule, the 2023 proposed rule, 
the 2020 proposed rule, and their accompanying Regulatory Impact 
Analyses. Analyses below detail the financial impacts of each 
provision of this rule.

A. Key Assumptions

    Impacts in this analysis are based on data collected during SY 
2014-2015 for the School Nutrition and Meal Cost Study (SNMCS).\17\ 
Distribution of the types and quantities of foods school districts 
purchase may have changed since that time due to pandemic supply 
chain challenges, meal pattern flexibilities, implementation of the 
transitional standards, changing consumer preferences, and industry 
changes. Using a 10-year average of the Consumer Price Index (CPI) 
for all food (including food consumed away from home and at home) 
from 2015 to the 2024 and the predicted 2023 and 2024 years, cost 
data were inflated four percent annually for the analyses detailed 
below.\18\ The analyses in this rule assume that the significant 
progress schools made toward serving healthier meals after 2012 rule 
was implemented will continue.
---------------------------------------------------------------------------

    \17\ https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
    \18\ https://www.ers.usda.gov/data-products/food-price-outlook/.
---------------------------------------------------------------------------

    These analyses assume that school meal participation (average 
daily participation and meal counts) will normalize to be consistent 
with the service levels in FY 2023, as that is the most recent full 
year of typical program operations. USDA acknowledges that changes 
in the food served have the potential to impact participation. This 
impact could be either positive or negative, depending on how 
specific menu or product changes are implemented. Additional 
students may participate due to the availability of Healthy School 
Meals for All in several States in recent years, where all students 
receive breakfast and lunch at no cost to their families. Discussion 
of potential participation impacts are included in this Regulatory 
Impact Analysis under the ``Uncertainties/Limitations'' section as a 
sensitivity analysis. The analyses in this Regulatory Impact 
Analysis assume participation returns to more typical, pre-pandemic 
levels and projects participation will hold steady each school year 
during the time period between SY 2024-2025 and SY 2029-2030.
    For discussion of health benefits of the rule, expected impacts 
of specific provisions on diet quality are estimated based on the 
SNMCS and prior data from School Nutrition Dietary Assessment Study 
(SNDA) IV.\19\ Between SY 2009-2010 and SY 2014-2015, ``Healthy 
Eating Index-2010'' (HEI-2010) scores \20\ of diet quality for NSLP 
and SBP meals increased significantly. The Healthy Eating Index is a 
tool to ``measure of diet quality that can be used to assess how 
well a set of foods aligns with key recommendations of the Dietary 
Guidelines.'' \21\ At the time of data collection in the SNMCS, the 
HEI-2010 score was used

[[Page 32097]]

for evaluation so that there could be a direct comparison in diet 
quality between SY 2009-2010 and SY 2014-2015. Over this period, the 
overall mean HEI-2010 score for NSLP lunches served 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. USDA assumes these improvements were due to the 
2012 rule. This impact analysis assumes that the dietary content of 
served school meals continued to improve until 2019 and potentially 
even during the pandemic for some schools because of the 2012 rule. 
However, USDA acknowledges that following implementation of the 2012 
rule, there have been changes to the school meal pattern 
requirements because of USDA rulemakings related to the milk, whole 
grains, and sodium requirements, as well as COVID meal pattern 
waivers, which might have resulted in changes in the dietary content 
of meals served.
---------------------------------------------------------------------------

    \19\ https://www.fns.usda.gov/school-nutrition-dietary-assessment-study-iv.
    \20\ The Healthy Eating Index is a measure of diet quality used 
to assess how well a set of foods aligns with key recommendations of 
the Dietary Guidelines for Americans that is periodically updated 
with each edition of the Guidelines. HEI-2010 and HEI-2015 scores 
are cited/calculated in this impact analysis. At this time, no HEI-
2020 score version has been released.
    \21\ https://www.fns.usda.gov/healthy-eating-index-hei.
---------------------------------------------------------------------------

    With regards to added sugars, USDA assumes that schools will use 
a variety of menu changes to reduce added sugars to 10 percent or 
less of the weekly calorie content at school lunch and breakfast. 
Because added sugars have not been part of school meal regulations 
in the past, there may be a learning curve for school food 
authorities to adjust as the product specific and weekly average 
limits are gradually implemented. Analyses of milk product data were 
conducted with the assumption that some products that meet the 
finalized flavored milk added sugars limit of 10 grams per 8 fluid 
ounces are available. At the time data were collected for SNMCS in 
SY 2014-2015, no products met a 10-gram added sugars limit; the mean 
added sugars content in flavored milk was 12.2 g. However, data 
collected by USDA in 2022 from a limited number of K-12 school and 
food service catalogs suggest that there has been a shift in the 
added sugars content of milk products available to schools in the 
last 7 years.\22\ More information can be found in the ``Added 
Sugars'' subsection of the ``Impacts'' section below. Additionally, 
in April 2023, milk processors representing more than 90 percent of 
the school milk volume in the United States committed to provide 
school flavored milk options with no more than 10 grams of added 
sugar per 8 fluid ounce serving beginning in SY 25-26.\23\
---------------------------------------------------------------------------

    \22\ This was not an exhaustive data collection of milk products 
across the marketplace, simply a fact-finding search. See `Added 
Sugars' subsection of the `Impacts' section below.
    \23\ International Dairy Foods Association. IDFA Announces 
`Healthy School Milk Commitment' to Provide Nutritious Milk with 
Less Added Sugar for Students in Public Schools, Surpassing USDA 
Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
---------------------------------------------------------------------------

    Because flavored milk is the main source of added sugars in 
school meals, there is some overlap in the impact analyses of added 
sugars and milk changes in this rule. In this rule, USDA adopts the 
milk provision described as Alternative B in the proposed rule, 
which maintains the current requirement allowing all K-12 schools to 
offer flavored and unflavored milks. Because this rule maintains the 
current flavored milk requirements, child nutrition program 
operators will not need to make changes to their menus to comply 
with this provision, beyond those changes described in Section 2: 
Added Sugars.
    For the analysis of the sodium provision of this rule, several 
assumptions were made. The sodium content of school meals has been 
trending downwards since implementation of the 2012 rule. From SY 
2009-2010 to SY 2014-2015 HEI-2010 sodium component scores increase 
by almost 270 percent (from 10 to 27 percent of the maximum score). 
A sodium component score of 10 indicates a meal with sodium density 
content that is less than or equal to 1100 mg of sodium per 1000 
calories. A higher score indicates lower meal sodium content. USDA 
assumes that the sodium content of school meals continued to 
decrease until the pandemic waivers allowed flexibility to the meal 
requirements, including sodium, beginning in 2020 due to the COVID-
19 pandemic disruptions to school meal operations. Additionally, 
USDA assumes that sodium reductions in school meals will take place 
in a variety of ways and that there are a multitude of strategies 
schools can use to reduce the sodium content of meals served. As a 
result, this impact analysis analyzed a variety of meal pattern food 
and portion combinations to account for the various ways that sodium 
levels could be reduced.
    Assumptions were also made in order to measure the impacts of 
sections of the rule that pertain to substituting vegetables for 
grains in Tribal communities, traditional Indigenous foods, 
afterschool snacks, substituting vegetables for fruits at breakfast, 
nuts and seeds, and the Buy American provision. As our baseline for 
current school meal program operations, it was assumed that the 
proportion of the relevant food items or food groups offered would 
be the same as, or similar to, foods offered in SY 2014-2015, which 
is the most recent school year data available. This assumption 
provided a baseline to simulate the impact of the updates to foods 
served at school that will occur as a result of this rule. For 
instance, since we do not have the data to know what combination of 
food and drink items schools currently serve to meet snack program 
requirements, USDA assumed the proportion of offered food components 
in afterschool snacks would be comparable to the proportion of food 
components offered in school meals in the current school year (SY 
2023-2024). Similarly, the baseline assumes that the proportion of 
foods purchased under an exemption in the Buy American provision 
would be comparable to purchasing patterns from prior years.
    For all analyses, the baseline for meals served was the number 
of breakfasts, lunches, and afterschool snacks served in fiscal year 
2023 (table 3). There were approximately 4.1 billion lunches served 
in the NSLP, 2.1 billion breakfasts served in the SBP, and about 148 
million snacks served through NSLP afterschool snacks. As noted, 
while this rulemaking takes effect in SY 2024-2025, USDA is 
gradually phasing in required changes over time. Program operators 
will not be required to make any changes to their menus as a result 
of this rulemaking until school year 2025-2026, at the earliest.
[GRAPHIC] [TIFF OMITTED] TR25AP24.099

B. Impacts

Baseline

    The goal of this rule is to align school meal nutrition 
requirements more closely with recommendations in the Dietary 
Guidelines for Americans, 2020-2025 and strengthen the existing Buy 
American requirement. It is assumed that the costs detailed in the 
Regulatory Impact Analysis for the transitional standards rule will 
carry forward from SY 2022-2023 through SY 2023-2024, accounting for 
inflation. For this RIA, SY 2022-2023--the year in which the 
transitional standards rule was implemented in the school meal 
programs--is used as the baseline for measuring changes schools 
would need to make in order to meet the new requirements included in 
this rule. Since USDA expects the rule to be gradually implemented 
beginning in SY 2024-2025, this is the starting point for estimating 
the annual costs of the new requirements.
    Based on the total costs of the NSLP, SBP, and CACFP programs 
from FY 2023, the most recent full year of typical program 
operations, costs have been forecasted to the

[[Page 32098]]

time-period between FY 2024 and FY 2032. Absent this rule, we expect 
the overall baseline program cost to be approximately $208 billion 
over the eight fiscal years, seven full fiscal years and two half 
fiscal years. The estimated cost to implement this rule of $1.2 
billion (table 1) represents a 0.6 percent \24\ increase over the 
baseline cost of the three largest child nutrition programs. 
Throughout the `Impacts' section, annual cost estimates are 
presented for SY 2024-2025, meaning that they are based on data that 
has been inflated to SY 2024-2025 from the time of data collection.
---------------------------------------------------------------------------

    \24\ These costs are school food authority costs as a percentage 
of reimbursement baselines at this time (not Federal costs).
---------------------------------------------------------------------------

Administrative Costs

    In order to implement this rule between SY 2024-2025 and SY 
2031-2032, it is expected that there will be some regulatory 
familiarization costs, including state administrative costs, local 
level training costs, and costs associated with adjusting purchasing 
patterns and menus at the local level. While USDA has not collected 
data on this element of rule implementation in the past, comparable 
measures were used in the 2012 final rule. For that rule, Congress 
provided $50 million per year for state administrative costs (for 
two years, FY 2013 and 2014), and raised Federal reimbursements for 
schools by 6 cents for all lunches in schools that serve both 
breakfasts and lunches that meet meal pattern regulations and 
nutrition requirements.\25\ Since this rule includes more gradual 
and smaller changes than the 2012 rule, USDA expects state 
administrative costs to amount to $25 million annually during the 
three school years of gradual rule implementation, SY 2024-2025, SY 
2025-2026, and SY 2027-2028,\26\ for a total of $75 million. 
Congress has not provided additional funding for this rule change; 
school food authorities will need to account for them within their 
operations. The same is true of the local costs detailed in the next 
paragraph. State agencies may use State Administrative Expense funds 
(SAE) available in FY 2024 and FY 2025 towards administrative 
familiarization costs. Fiscal year 2024 SAE funds were substantially 
higher than in FY 2023 due to pandemic waivers allowing schools to 
serve meals at no cost to students reimbursed at SFSP rates.
---------------------------------------------------------------------------

    \25\ https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/costestimate/healthyhungerfreekidsact0.pdf.
    \26\ Refer to Preamble section 21B: Table of Changes by Program.
---------------------------------------------------------------------------

    For familiarization costs at the local level, USDA based the 
estimates on the additional reimbursement rate (from the 2012 final 
rule) of $0.06 per school lunch and about half of other non-
production labor costs. The proportion of cost breakdown used in the 
transitional standards rule was 45 percent labor, 45 percent food, 
and 10 percent other. Labor costs include both production (meal-
prep) and non-production labor costs; the latter represent 19.8 
percent of total labor and would include familiarization costs as 
well as other costs like nutrition education.\27\ We assume non-
production costs are evenly split between these 2 activities, so 
overall, familiarization would represent about 10 percent of labor 
costs. Therefore, USDA assumes that 45 percent of the $0.06 addition 
reimbursement represents labor costs, and 10 percent of this amount, 
or $0.003 ($0.004 after adjusting for inflation up to 2024 per 
lunch), was the expected cost associated with becoming familiar with 
the rule and making necessary adjustments. This would then cost $17 
million annually at the local level during the three school years of 
rule implementation during which new changes will be implemented, 
$51 million overall. In total with state and local costs, this would 
be $130 million dollars over the course of the rule that would be 
incurred by school food authorities during rule implementation, or 
$42 million annually (table 4).
---------------------------------------------------------------------------

    \27\ SNMCS Study Report Volume 3: Table 2.6.
    [GRAPHIC] [TIFF OMITTED] TR25AP24.100
    
Added Sugars

    In this rule, USDA finalizes the proposed added sugars product-
based and weekly limits to school lunch and breakfasts. The product-
based limits will take effect in SY 2025-2026, allowing schools to 
make gradual changes to their menus. The weekly dietary limits will 
take effect two school years after the product-based limits are 
implemented. With added sugars now included on the food and beverage 
product Nutrition Facts label and the recommendation in the Dietary 
Guidelines for Americans, 2020-2025 to limit intake of added sugars 
to less than 10 percent of calories per day, added sugars limits in 
school meals will help students to achieve a healthy dietary pattern 
without restricting naturally occurring sugars. Effective SY 2025-
2026, for school lunch and breakfast, this rule establishes the 
following product-based added sugars limits in school meals:
---------------------------------------------------------------------------

    \28\ Three school years when provisions of the rule take effect: 
SY 2024-2025, SY 2025-2026, and SY 2027-2028.
---------------------------------------------------------------------------

     For school lunch and school breakfast, breakfast 
cereals are limited to no more than 6 grams of added sugars per dry 
ounce. This limit will also apply to CACFP starting October 1, 2025.
     For school lunch and school breakfast, yogurt is 
limited to no more than 12 grams of added sugars per 6 ounces. This 
limit will also apply to CACFP starting October 1, 2025.
     For school lunch and for school breakfast, flavored 
milk is limited to no more than 10 grams of added sugars per 8 fluid 
ounces. This limit does not extend to CACFP.
    The weekly dietary limit, which will take effect in SY 2027-
2028, limits added sugars to less than 10 percent of calories per 
week in the school lunch and breakfast programs. This weekly limit 
will be in addition to the product-based limits described above and 
aligns with the Dietary Guidelines recommendation to limit added 
sugars to less than 10 percent of calories. The weekly limit does 
not extend to CACFP.
    While the NSLP and SBP have not had total sugar or added sugars 
limits in the past, product-based total sugar limits have been in 
place in CACFP since 2017. The current CACFP product-based limits 
apply to breakfast cereals (<=6 g total sugar/1 dry oz) and yogurt 
(<=23 g total sugar/6 oz). This final rule applies the product-based 
added sugars limits for breakfast cereals and yogurts to the CACFP, 
effective October 1, 2025; the added sugars limits will replace the 
current total sugar limits for breakfast cereals and yogurts. This 
aligns the yogurt and breakfast cereal added sugars limits between 
the two programs, simplifying program administration for schools 
that operate both programs and simplifying any necessary product 
reformulation.
    The product-based limits for breakfast cereals and yogurts were 
supported by food label data collected by USDA in May 2022.\29\ 
These data were used to estimate the proportion of recently 
available products that could meet the added sugars limits and 
demonstrated a shift in the proportion of products currently meeting 
existing CACFP total sugar limits. SNMCS data shows that in SY 2014-
2015, only nine percent of served yogurt products met the existing 
CACFP total sugar yogurt limit and 35 percent of hot and cold cereal 
products met the CACFP total sugar cereal limit. Based on food label 
data, about 90 percent of yogurt products and 44 percent of hot and 
cold cereal products

[[Page 32099]]

available during SY 2021-2022 met the existing CACFP total sugar 
limits.\30\ This indicates that in recent years manufacturers were 
able to make considerable changes in the sugar content of both 
yogurt and cereal products. The CACFP does not have any flavored 
milk total sugar limits. This analysis compares the cost of products 
that met the added sugars limits finalized in this rule to those 
that did not during SNMCS data collection. Since there is now wider 
market availability of products with a lower sugar content than 
there were during SY 2014-2015, it is possible that the actual cost 
of these changes may be lower than estimated due to a higher number 
of lower sugar product options.
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    \29\ USDA Food and Nutrition Service, Office of Policy Support 
data collection of nutrition label information from major cereal and 
yogurt manufacturer K-12 and food service catalogs.
    \30\ USDA Food and Nutrition Service, Office of Policy Support 
internal analysis using collected nutrition label data during the 
development of the rule. Data were collected on 110 total yogurt 
products and 191 total cereal products.
---------------------------------------------------------------------------

Breakfast Cereals

    The estimated cost of sweetened and unsweetened cold cereals was 
the same per dry ounce regardless of added sugars content. All hot 
cereal products met the added sugars limit in SY 2014-2015. While 
hot cereal is about half the price of cold cereal per dry ounce, it 
is not widely served; only five percent of menus included hot cereal 
and an even lower proportion of students consumed hot cereal. The 
cost of hot cereal per dry ounce also does not account for 
potentially costly toppings, such as nuts, seeds, or dried fruit. 
Toppings for hot cereal such as brown sugar or chocolate chips would 
also contain additional added sugars that are not accounted for in 
SNMCS data. Because it is unknown whether the proportion of schools 
serving hot cereal would increase under the final rule and because 
there is no cost difference among cold cereals based on added sugars 
content, we expect that this final rule will result in no change in 
annual cost for breakfast cereals despite the introduction of the 
added sugars limit. Of those hot and cold cereal products available 
during data collection in 2022,\31\ 50 percent of products available 
met the added sugars limit of <= 6 g added sugars per ounce.
---------------------------------------------------------------------------

    \31\ USDA Food and Nutrition Service, Office of Policy Support 
data collection of nutrition label information from major cereal and 
yogurt manufacturer K-12 and food service catalogs. Data were 
collected on 191 total cereal products.
---------------------------------------------------------------------------

    The added sugars limit for breakfast cereals extends to NSLP, 
SBP, and CACFP. The new 6 grams of added sugars limit for breakfast 
cereals is similar to the current CACFP limit of 6 grams of total 
sugars, but focuses on added sugars rather than total sugars, 
consistent with Dietary Guidelines recommendations. Therefore, USDA 
estimates it will not have a cost impact for CACFP as operators will 
continue to be able to serve breakfast cereals currently allowed in 
the program. Alignment of this limit across child nutrition programs 
may simplify program administration for State agencies and local 
program operators.

Yogurt

    About 1.1 billion portions of yogurt are served annually at 
school breakfast and lunch combined. During SY 2014-2015, almost all 
yogurt products exceeded 12 grams of added sugars per 6 ounces. 
However, of the yogurt products available during SY 2021-2022, 57 
percent of yogurt nutrition labels, or approximately 627 million 
portions, met the added sugars limit finalized in this rule.\32\ The 
recent nutrition label data collection indicates that manufacturers 
have already made significant changes to yogurt products since the 
implementation of the CACFP total sugars limit in 2017, but also 
indicates that there is room for product reformulation in at least 
43 percent of currently available products. For this analysis, to 
more accurately reflect currently available products, USDA used the 
SY 2021-2022 nutrition label data that indicated 57 percent of 
yogurt products meet the added sugars limit finalized in this rule.
---------------------------------------------------------------------------

    \32\ USDA Food and Nutrition Service, Office of Policy Support 
data collection of nutrition label information from major cereal and 
yogurt manufacturer K-12 and food service catalogs. Data were 
collected on 110 total yogurt products.
---------------------------------------------------------------------------

    When school meal cost data were last collected in SY 2014-2015, 
low-fat and fat-free yogurt products that met the added sugars limit 
cost $0.05 more than those products that did not meet the limit. On 
average, yogurt products with more than 12 grams of added sugars per 
6-ounce container cost $0.42 and those with 12 grams or less of 
added sugars cost $0.47. This estimate assumes the cost of yogurt 
products is the same for CACFP providers, and that, based on program 
year 2016-2017, CACFP providers served yogurt at snacks and 
suppers.\33\ If the added sugars limit is met in every meal and 
snack that includes yogurt, 43 percent of yogurt portions served 
would need to shift to products with fewer added sugars. This would 
cost an estimated $32 million total for NSLP, SBP, and CACFP, 
assuming the products that meet the added sugar limit cost $0.05 
more per meal (about $0.07 after adjusting for inflation) (table 6).
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    \33\ https://www.fns.usda.gov/cn/study-nutrition-activity-childcare-settings-usdas-cacfp.
[GRAPHIC] [TIFF OMITTED] TR25AP24.101

Flavored Milk

    This rule establishes a flavored milk added sugars limit of 10 
grams of added sugars per 8 fluid ounces or, for flavored milk sold 
as a competitive food for middle and high schools, 15 grams of added 
sugars per 12 fluid ounces. As detailed in Section 3A: Flavored Milk 
of the rule preamble, schools may continue to offer fat-free and 
low-fat milk, flavored and unflavored, to all K-12 students. 
Effective SY 2025-2026, flavored milk must meet the product-based 
added sugars limit. In SY 2014-2015, there were no flavored milk 
products that met the new added sugars limit (<=10 g added sugars/8 
fluid ounces); therefore, USDA could not compare the cost of 
flavored milk products that did and did not meet the added sugars 
limit. Instead, cost analyses are based on the difference in cost of 
unflavored and flavored milk, using unflavored milk as a proxy for 
milk that meets the added sugars limit.
    The SY 2014-2015 data indicate that the cost of milk varied by 
fat content, but not

[[Page 32100]]

consistently. On average, low-fat, flavored milk cost $0.01 more 
than low-fat, unflavored milk per carton (8 fluid ounces). However, 
fat-free, flavored milk cost $0.01 less than fat-free, unflavored 
milk per carton. Low-fat, flavored milk was the least offered milk 
variety based on the SNMCS report (table 7). Low-fat, unflavored 
milk and fat-free, flavored milk were offered on a majority of menus 
at both breakfast and lunch, whereas fat-free, unflavored milk was 
offered on about half of menus for both breakfast and lunch.
---------------------------------------------------------------------------

    \34\ SNMCS Report--Volume 2.
    [GRAPHIC] [TIFF OMITTED] TR25AP24.102
    
    To estimate the cost of serving milk that meets the added sugars 
limit, the cost of serving 100 percent unflavored milk (low-fat and 
fat-free), was compared to the estimated cost of all milk served 
during SY 2014-2015 (table 8). In lieu of data on milk served in 
school meals that meets the added sugars limit, the cost of 
unflavored milk is used as a proxy. The cost increase from serving 
milk with <=10 grams added sugars per 8 fluid ounces is 
approximately $76 million annually, assuming the same proportion of 
servings as SY 2014-2015 menus. In addition to fat-free, unflavored 
milk costing $0.01 more than fat-free, flavored milk, this cost 
increase reflects that there was a much higher proportion of fat-
free, flavored milk served compared to low-fat flavored milk during 
that school year.
[GRAPHIC] [TIFF OMITTED] TR25AP24.103

    It is possible that prices of milk types have aligned since SY 
2014-2015 and that the annual cost changes from reducing added 
sugars in flavored milks will be minimal. These estimates use the 
most recent school food authority-representative data available. 
During SY 2014-2015, flavored milk products had a mean added sugars 
content of 12.2 grams (minimum: 10.4 grams, maximum: 17.8 grams). 
Public comment on proposed rule that preceded the 2022 transitional 
standards rule \35\ from the International Dairy Foods Association 
and National Milk Producers Federation indicated that the average 
added sugars content of flavored milk has declined from 16.7 to 7.1 
grams in an eight-ounce serving of flavored school milk between SY 
2006-2007 and SY 2019-2020. Despite the fact that no flavored milk 
products served in SY 2014-2015 met the added sugars limit, an 
internally conducted search of recent K-12 and food service product 
catalogs containing milk products indicated that there are some 
flavored milks now available to schools that meet the 10 grams of 
added sugar per eight fluid ounces limit.\36\ At least four 
manufacturers had at least one flavored milk product with under 10 
grams of added sugars per eight fluid ounce serving, and three 
manufacturers had products with 6 grams of added sugars per eight 
fluid ounce serving. A total of 10 flavored milk products from

[[Page 32101]]

four companies were below the 10 grams limit. The catalogs used for 
data collection generally showed that there were lower and higher 
sugar versions of flavored milk available. However, it is likely 
that additional product reformulation will be necessary for those 
manufacturers that have yet to reduce added sugars content of their 
flavored milk products. More recently, in April 2023, the 
International Dairy Foods Association announced a commitment to 
provide flavored milk with no more than 10 grams of added sugars per 
8 fluid ounces, consistent with the limit established by this rule. 
This commitment was made by 37 school milk processors representing 
more than 90 percent of the school milk volume in the U.S.\37\
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    \35\ https://www.regulations.gov/comment/FNS-2020-0038-4702.
    \36\ This was not an exhaustive data collection of milk products 
across the marketplace, simply a fact-finding search.
    \37\ International Dairy Foods Association. IDFA Announces 
`Healthy School Milk Commitment' to Provide Nutritious Milk with 
Less Added Sugar for Students in Public Schools, Surpassing USDA 
Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
---------------------------------------------------------------------------

Product Limit Total Impact

    In total, across all four product categories, we estimate the 
cost to meet the added sugars limits would be around $107 million 
per year. This total reflects the cost impacts of cereal, yogurt, 
and flavored milk products added sugars limits. These estimated 
annual costs, adjusted for inflation, are shown in table 9.
[GRAPHIC] [TIFF OMITTED] TR25AP24.104

Weekly Limit

    This rule also finalizes a weekly limit of less than 10 percent 
of calories per week from added sugars in the school lunch and 
breakfast programs, effective SY 2027-2028. Considerable menu 
changes will be required to meet the weekly limit at breakfast. In 
SY 2014-2015 approximately 11 percent of calories offered at lunch 
and 17 percent at breakfast were from added sugars.\38\ Since there 
are so many approaches to reduce added sugars across menus, there is 
not an accurate way to estimate the cost change of reducing all 
breakfast menus to containing less than 10 percent of calories per 
week from added sugars. In school breakfasts during SY 2014-2015, 
fat-free, flavored milk contributed 30 percent of added sugars 
content, with sweetened cold cereals contributing 13 percent, grain-
based desserts contributing 12 percent, and condiments/toppings 
contributing 12 percent.\39\ Schools may find that replacing 
flavored with unflavored milk is an effective way to begin to 
approach the weekly limits. Flavored milk in school meals has an 
average of 12 g of added sugar (minimum 10.4 g and maximum 17.8 g). 
If all flavored milk products were replaced with unflavored milk 
products, the percentage of calories from added sugars drops to six 
percent at lunch and to 13 percent at breakfast.\40\ School food 
authorities could also use a more moderate approach of reducing, but 
not eliminating, flavored milk offerings at school breakfast; for 
example, offering unflavored milk varieties only certain days of the 
school week. Although this approach is not required in this final 
rule, it would be a simple and effective way to initiate a decrease 
in the added sugars content of weekly menus. School food authorities 
may also choose to reduce or eliminate grain-based desserts, 
sweetened cold cereals, and/or some condiments. This final rule 
allows schools to more easily offer meats/meat alternates at 
breakfast by removing the requirement for schools to meet a minimum 
grains requirement each day at breakfast. Under this provision (see: 
Section 6: Meats/Meat Alternates at Breakfast), schools may offer 
grains, meats/meat alternates, or a combination of both to meet the 
combined grains and meats/meat alternates component. Consequently, 
schools have more flexibility to replace grains that are high in 
added sugars with meats/meat alternates, such as scrambled eggs, 
which could help schools to meet the weekly added sugars limit at 
breakfast upon implementation. In making menu changes, school food 
authorities will likely choose to balance making the best economic 
decision for their operations with the need to minimize impacts on 
student participation and acceptance of new foods. The phased-in 
approach of this final rule, first with the product specific limits 
and then with a weekly average limit of added sugars, will help to 
temper any potential participation changes.
---------------------------------------------------------------------------

    \38\ Added Sugars in School Meals and Competitive Foods.
    \39\ Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals 
and the Diets of School-Age Children. Nutrients. 2021;13(2):471. 
Published 2021 Jan 30. doi:10.3390/nu13020471.
    \40\ Based on an internal USDA analysis using SNMCS-II data.
---------------------------------------------------------------------------

Health Benefits

    A major source of added sugars, sugar-sweetened beverages 
(SSBs), has been studied widely as it relates to health outcomes. 
The World Health Organization defines SSBs as all beverages 
containing free sugars, including carbonated or non-carbonated soft 
drinks, liquid and power concentrates, flavored water, energy and 
sports drinks, ready-to-drink tea, ready-to-drink coffee, and 
flavored milk drinks.\41\ Flavored milk is the top source of added 
sugar in school meals, and other SSBs may be sold as competitive 
foods to high school students under specific competitive food 
requirements.42 43 Consumption of SSBs is related to risk 
of type 2 diabetes (T2D),\44\ cardiovascular disease 
(CVD),45 46 and chronic kidney disease.\47\ Tooth decay 
and cavities are also associated with increased SSB consumption.\48\ 
Other top sources of added sugars in school meals include sweetened 
cold cereal and grain-based desserts. If a third of school children 
met the Dietary Guidelines recommendation for

[[Page 32102]]

added sugars consumption into adulthood, it could prevent an 
estimated 12,260 adult deaths related to CVD and cancer and save 
$6.01 billion in medical costs per year.\49\ Gradual reduction in 
added sugars content to 10 percent of calories per week at school 
lunch and breakfast will align meals with the goals of the Dietary 
Guidelines and will promote improved lifestyle habits and health 
outcomes during childhood that can track into adulthood.\50\
---------------------------------------------------------------------------

    \41\ World Health Organization Taxes on Sugary Drinks: Why Do 
It? World Health Organization. 2017 Available online: https://apps.who.int/iris/handle/10665/260253.
    \42\ See 7 CFR 210.11(m)(3) https://www.ecfr.gov/current/title-7/part-210#p-210.11(m)(3) and https://www.fns.usda.gov/cn/nutrition-standards-all-foods-sold-school-summary-chart.
    \43\ Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals 
and the Diets of School-Age Children. Nutrients. 2021;13(2):471. 
Published 2021 Jan 30. doi:10.3390/nu13020471.
    \44\ Warshaw H, Edelman SV. Practical Strategies to Help Reduce 
Added Sugars Consumption to Support Glycemic and Weight Management 
Goals. Clin Diabetes. 2021;39(1):45-56. doi:10.2337/cd20-0034.
    \45\ Malik VS, Hu FB. Sugar-Sweetened Beverages and 
Cardiometabolic Health: An Update of the Evidence. Nutrients. 
2019;11(8):1840. Published 2019 Aug 8. doi:10.3390/nu11081840.
    \46\ O'Connor L, Imamura F, Brage S, Griffin SJ, Wareham NJ, 
Forouhi NG. Intakes and sources of dietary sugars and their 
association with metabolic and inflammatory markers. Clin Nutr. 
2018;37(4):1313-1322. doi:10.1016/j.clnu.2017.05.030.
    \47\ Bomback AS, Derebail VK, Shoham DA, et al. Sugar-sweetened 
soda consumption, hyperuricemia, and kidney disease. Kidney Int. 
2010;77(7):609-616. doi:10.1038/ki.2009.500.
    \48\ Valenzuela MJ, Waterhouse B, Aggarwal VR, Bloor K, Doran T. 
Effect of sugar-sweetened beverages on oral health: a systematic 
review and meta-analysis. Eur J Public Health. 2021;31(1):122-129. 
doi:10.1093/eurpub/ckaa147.
    \49\ Wang L, Cohen J, Maroney M, et al. Evaluation of health and 
economic effects of United States school meal standards consistent 
with the 2020-2025 dietary guidelines for Americans. The American 
Journal of Clinical Nutrition. 2023. DOI: https://doi.org/10.1016/j.ajcnut.2023.05.031.
    \50\ Lioret S, Campbell KJ, McNaughton SA, et al. Lifestyle 
Patterns Begin in Early Childhood, Persist and Are Socioeconomically 
Patterned, Confirming the Importance of Early Life Interventions. 
Nutrients. 2020;12(3):724. Published 2020 Mar 9. doi:10.3390/
nu12030724.
---------------------------------------------------------------------------

Milk

    This final rule codifies the proposal to maintain the current 
regulation allowing all schools the option to offer fat-free and 
low-fat milk, flavored and unflavored, to K-12 students, and to sell 
fat-free and low-fat milk, flavored and unflavored, [agrave] la 
carte. No annual change in the cost of milk is expected due to 
maintaining the transitional milk standards.
    Several additional provisions would apply under this 
requirement. The added sugars requirement for flavored milk, which 
limits flavored milks to 10 grams of added sugars per 8 fluid 
ounces, effective SY 2025-2026, applies to milk served in 
reimbursable school lunches and breakfasts, and to milks sold as a 
competitive beverage.\51\ Consistent with current requirements, this 
rule would require that unflavored milk be offered at each school 
meal service. This rule also continues to allow fat-free and low-fat 
milk, flavored and unflavored, to be offered to participants ages 6 
and older in the SMP and CACFP.
---------------------------------------------------------------------------

    \51\ USDA is finalizing a higher added sugars limit for flavored 
milk sold as a competitive food in middle and high schools due to 
the larger serving size. The serving size for milk offered as part 
of a reimbursable meal is 8 fluid ounces. Milks sold to middle and 
high school students as a competitive food may be up to 12 fluid 
ounces.
---------------------------------------------------------------------------

Health Benefits

    In the transitional standards rule, the decision to allow fat-
free, flavored milk and low-fat, flavored milk reflected concerns 
about declining milk consumption and the importance of the key 
nutrients provided by milk for school-aged children.\52\ However, 
USDA recognizes that flavored milk is the highest source of added 
sugars in school meals, which is why the product-specific added 
sugars limit has been finalized. Under this limit, flavored milk 
must contain no more than 10 grams of added sugars per 8 fluid 
ounces of milk. Both flavored milk and unflavored milk contain 
protein, calcium, potassium, vitamin A, vitamin D, and many more 
essential nutrients. About 90 percent of the U.S. population does 
not meet dairy recommendations. Most individuals would benefit by 
increasing intake of dairy in fat-free or low-fat forms of milk. 
Calcium, potassium, dietary fiber, and vitamin D are considered 
dietary components of public health concern for the general U.S. 
population because low intakes are associated with health 
concerns.\53\ Low-fat dairy was also shown in some evidence to be 
part of a healthy dietary pattern in children that was associated 
with lower blood pressure and improved blood lipid levels later in 
life.\54\ These potential health benefits combined with the fact 
that milk is a nutrient-dense beverage support the continued serving 
of both fat-free and low-fat flavored and unflavored milk. With 
flavored milk also meeting added sugar limits, all milk options 
schools offer will better align with the Dietary Guidelines for 
Americans regardless of student flavor preferences.
---------------------------------------------------------------------------

    \52\ https://www.gpo.gov/fdsys/pkg/FR-2017-11-30/pdf/2017-25799.pdf.
    \53\ 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.
    \54\ Bouchey C, Ard J, Bazzano L, Heymsfield S, Mayer-Davis E, 
Sabat[eacute] J, Snetselaar L, Van Horn L, Schneeman B, English LK, 
Bates M, Callahan E, Butera G, Terry N, Obbagy J. Dietary Patterns 
and Risk of Cardiovascular Disease: A Systematic Review. July 2020. 
U.S. Department of Agriculture, Food and Nutrition Service, Center 
for Nutrition Policy and Promotion, Nutrition Evidence Systematic 
Review. Available at: https://doi.org/10.52570/NESR.DGAC2020.SR0102.
---------------------------------------------------------------------------

Whole Grains

    This rule maintains the current requirement that at least 80 
percent of the weekly grains offered are whole grain-rich, based on 
ounce equivalents of grains served in the school lunch and breakfast 
programs. The definition of whole grain-rich, which is codified in 
this final rule, reads as follows: Whole grain-rich is the term 
designated by FNS to indicate that the grain content of a product is 
between 50 and 100 percent whole grain with any remaining grains 
being enriched. This definition does not change the meaning of whole 
grain-rich, which has previously been communicated in USDA guidance, 
but is simply a clarification for school food authorities. The 
definition is included in NSLP, SBP, and CACFP regulations. There is 
no cost change expected as a result of these provisions because the 
requirement that at least 80 percent of weekly grains offered are 
whole grain-rich is carried forward from the 2022 transitional 
standards rule.

Health Benefits

    The 2022 transitional standards rule required that at least 80 
percent of grains offered be whole grain-rich. This was an increase 
from the 2018 rule which required that at least 50 percent of grains 
offered be whole grain-rich, in light of the challenges schools were 
facing in meeting the 2012 rule requirements. Despite these 
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.\55\ This rule continues to 
emphasize the importance of consuming a dietary pattern with grains 
that are whole grain-rich, but also carries forward manageable, 
achievable goals.
---------------------------------------------------------------------------

    \55\ 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.
---------------------------------------------------------------------------

    Prepared NSLP lunches in SY 2014-2015 scored 95 percent of the 
maximum HEI-2010 whole grains component score, on average, and 
prepared breakfasts in the SBP scored 92 percent of the maximum.\56\ 
NSLP participants scored the maximum HEI-2010 whole grains component 
score for lunches consumed on average in SY 2014-2015 and 
nonparticipants scored only 63 percent of the maximum score, a 
significant difference. SBP participants scored 98 percent of the 
maximum HEI-2010 whole grain component score on breakfasts consumed, 
whereas nonparticipants scored 68 percent of the maximum score.\57\ 
A maximum whole grain component score in the HEI-2010 is achieved 
with at least 1.5 ounces equivalent of whole grains per 1000 
kilocalories of intake, a measure of nutrient density. In SY 2014-
2015, school meal programs were matching recommendations from the 
Dietary Guidelines at a high level with regards to whole grains.
---------------------------------------------------------------------------

    \56\ SNMCS Volume 2--Figures 5.2 and 5.5.
    \57\ SNMCS Volume 4--Figures 9.2 and 12.2.
---------------------------------------------------------------------------

    Whole grains are considered to be a nutrient dense food, and the 
Dietary Guidelines recommend making half of your grains whole 
grains. However, almost all (98 percent) of Americans fall below 
recommendations for whole grains, while most (74 percent) exceed 
limits for refined grains, underscoring the importance of school 
meal requirements that encourage children's consumption of whole 
grain-rich foods. Throughout the lifespan, consumption of whole 
grains has also been shown to reduce the risk of type 2 
diabetes.\58\ Additionally, if children consume whole grains at the 
level recommended in the Dietary Guidelines through to adulthood, it 
could prevent an estimated 2,940 CVD- and cancer-related deaths and 
save $6.01 billion in medical costs per year.\59\ Whole grains are 
shown in some evidence to be part of a healthy dietary pattern in 
children that was associated with lower blood pressure and improved 
blood lipid levels later in life.\60\

[[Page 32103]]

Factors that contribute to increased consumption of whole grains in 
children include providing a variety of whole grain options, serving 
whole grains in school programs, and improving appearance of package 
and product marketing.\61\ The documented health benefits of the 
consumption of whole grain-rich products and strategies to increase 
whole grain intake in children both support a continued whole grain 
requirement in school meals.
---------------------------------------------------------------------------

    \58\ Chanson-Roll[eacute] A., Meynier A., Aubin F., Lappi J., 
Poutanen K., Vinoy S., Braesco V. Systematic Review and Meta-
Analysis of Human Studies to Support a Quantitative Recommendation 
for Whole Grain Intake in Relation to Type 2 Diabetes. PLoS ONE. 
2015;10:e0131377. doi: 10.1371/journal.pone.0131377.
    \59\ Wang L., Cohen J., Maroney M., et al. Evaluation of health 
and economic effects of United States school meal standards 
consistent with the 2020-2025 dietary guidelines for Americans. The 
American Journal of Clinical Nutrition. 2023. DOI: https://doi.org/10.1016/j.ajcnut.2023.05.031.
    \60\ Bouchey C., Ard J., Bazzano L., Heymsfield S., Mayer-Davis 
E., Sabat[eacute] J., Snetselaar L., Van Horn L., Schneeman B., 
English L.K., Bates M., Callahan E., Butera G., Terry N., Obbagy J., 
Dietary Patterns and Risk of Cardiovascular Disease: A Systematic 
Review. July 2020. U.S. Department of Agriculture, Food and 
Nutrition Service, Center for Nutrition Policy and Promotion, 
Nutrition Evidence Systematic Review. Available at: https://doi.org/10.52570/NESR.DGAC2020.SR0102.
    \61\ Meynier A., Chanson-Roll[eacute] A., Riou E., Main Factors 
Influencing Whole Grain Consumption in Children and Adults--A 
Narrative Review. Nutrients. 2020;12(8):2217. Published 2020 Jul 25. 
doi:10.3390/nu12082217.
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Sodium

    This rule updates the approach to sodium reduction in school 
meals. Lessons learned from the 2012 rule indicate that smaller, 
incremental reductions in sodium content may be more achievable 
given the need for industry to reformulate products and for schools 
to modify both the products they serve and their preparation 
methods. Based on these lessons learned and on comments received on 
the proposed rule, the current sodium limits (implemented in the 
2022 transitional standards rule) will be maintained over the next 
three school years, and a single reduction will be implemented in SY 
2027-2028. This final rule sets forth an approximate 15 percent 
reduction for school lunch and an approximate 10 percent reduction 
for school breakfast from the current sodium limits. The sodium 
limits in this rulemaking are informed by the Dietary Guidelines and 
FDA's voluntary sodium reduction goals, which aim to reduce sodium 
across the U.S. food supply.
    To provide context, the previous three sodium targets from the 
2012 rule and the targets from the 2022 transitional standards rule 
are presented below (table 10). The transitional standards rule 
required schools to meet Sodium Target 1 for school lunch and 
breakfast, effective SY 2022-2023. For school lunch only, schools 
were required to meet Sodium Target 1A beginning in SY 2023-2024. 
This final rule maintains the current limits under Target 1A for 
lunch and Target 1 for breakfast through the end of SY 2026-2027 and 
adds new limits that conform to the Target 2 limits from the 2012 
rule, effective SY 2027-2028 (table 11).
[GRAPHIC] [TIFF OMITTED] TR25AP24.105

[GRAPHIC] [TIFF OMITTED] TR25AP24.106

    The school lunch baseline for this analysis is the menu-served 
sodium content from SY 2014-2015, in which elementary, middle, and 
high school lunch menus had sodium content, on average, of 1135 mg, 
1235 mg, and 1330 mg, respectively. The school breakfast baseline 
for this analysis is the menu-served sodium content from SY 2014-
2015, in which elementary, middle, and high school breakfast menus 
had sodium content, on average, of 510 mg, 570 mg, and 580 mg, 
respectively. This indicates that the majority of schools were 
already meeting Sodium Target 1 from the 2012 rule for both 
breakfast and lunch in SY 2014-2015, and almost meeting Sodium 
Target 1A from the 2022 transitional standards rule for school 
lunch. More specifically, 72 percent of weekly lunch menus and about 
66 percent of weekly breakfast menus were meeting Sodium Target 1 in 
SY 2014-2015.\62\
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    \62\ SNMCS Report Volume 2.

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[[Page 32104]]

    Because this final rule maintains the current sodium limits, no 
additional costs are expected through the end of SY 2026-2027. In 
order to simulate the potential increase in costs due to the final 
rule sodium limits effective SY 2027-2028, we determined whether 
products served in schools met the FDA short-term voluntary sodium 
targets.\63\ For products that did not meet the FDA voluntary 
targets, we simulated the change in sodium by capping the sodium 
amount at the appropriate FDA category voluntary target. This 
simulation was originally used to estimate the cost of the proposed 
sodium limits, which was a series of 10 percent reductions over 
multiple school years. The analysis described in the subsection 
below ``Analyses Related to Gradual Sodium Reduction'' found that 
when foods served in school meals met the FDA voluntary sodium 
reduction targets the overall sodium content of menus decreased by 
approximately 10 percent. We assume this is true for estimating the 
cost impact of the final sodium limit. The cost difference was 
estimated by comparing the cost of a meal with foods that either 
already meet, or are not subject to, the FDA short-term voluntary 
targets to the cost of a meal with foods that do not meet, and are 
being subject to, the FDA short-term voluntary targets and 
represents the cost difference associated with a 10 percent sodium 
reduction. The average cost of multiple food group combinations in 
sample menus was used for both breakfast and lunch to simulate the 
cost of a variety of menus that might be created and used by school 
food authorities. This cost difference was used to estimate the 
total cost for the 10 percent sodium reduction applicable to 
breakfast in this final rule. For the 15 percent sodium reduction 
for lunch, the estimated cost difference for a 10 percent reduction 
was increased by 50 percent to reflect the additional costs 
associated with the larger sodium reduction.
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    \63\ https://www.fda.gov/food/cfsan-constituent-updates/fda-issues-sodium-reduction-final-guidance.
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    When comparing higher sodium school meals (those containing more 
foods being targeted by FDA voluntary sodium guidance) to lower 
sodium school meals, higher sodium meals were found to be less 
expensive. Meals from SY 2014-2015 with higher sodium foods were 
$0.09 cheaper per SBP meal and $0.05 cheaper per NSLP meal than 
those meals that contained lower sodium products when only 
considering food costs. Adjusted for inflation, this was a $0.08 
difference per meal, on average, for breakfast and lunch. We use 
those per meal food cost differences, adjusted for inflation, to 
estimate the food cost of the final rule sodium limits. We include 
in the total cost impact an added 25 percent labor costs associated 
with increased scratch cooking, totaling $2 million annually for 
labor from rule implementation. We assume scratch cooking will only 
increase about 25 percent since products should already be available 
that would allow schools to meet the final rule sodium limits (table 
12). The approximate cost of implementing the sodium reduction is 
$118 million, with food costs totaling $94 million annually from 
rule implementation. The breakdown by meal type of annual total food 
costs are $27 million for breakfast and $68 million for lunch. 
Potential equipment costs are detailed in the ``Uncertainties/
Limitations'' section below. The existing sodium limits will remain 
in effect through the end of SY 2026-2027, and there are no costs 
associated with current limits already in effect.
[GRAPHIC] [TIFF OMITTED] TR25AP24.107

    Food and labor costs account for almost all of the costs to 
produce a meal in a school (about 45 percent for labor and 45 
percent for food, on average). The impact analysis of the new sodium 
limits used the same method to estimate labor costs that was used in 
the 2022 transitional standards rule RIA. It also assumes a need for 
increased scratch cooking, staffing changes, and time needed for 
manufacturer product reformulation. The USDA study, ``Successful 
Approaches to Reduce Sodium in School Meals,'' found that school 
districts served more fresh fruits and vegetables to reduce sodium 
content. This may cause a reduction in food costs if items purchased 
to prep and serve fresh or to cook from scratch are less expensive; 
however, these costs may be offset by higher quantities needed or 
additional foods needed to prepare meals from scratch.
    While meeting the 10 percent sodium reduction in breakfast is 
possible with products already available, the 15 percent reduction 
for lunch may require some product reformulation or new preparation 
methods such as scratch-cooking which, in turn, require changes in 
staffing and equipment. This is supported by the USDA study on 
``Successful Approaches to Reduce Sodium in School Meals,'' \64\ in 
which schools, Food Service Management Companies, and manufacturers 
noted similar effects from the original sodium targets in the 2012 
rule. Previous studies have shown that many schools have some 
capacity to conduct scratch-cooking, but that new equipment and more 
staff may be necessary to achieve recipe reformulation and cooking 
or baking from scratch.\65\ Because data have not been collected 
since SY 2014-2015, it is possible that further product 
reformulation and recipe restructuring occurred prior to or during 
the COVID-19 pandemic. Likewise, it is unclear how much menus 
changed during the pandemic and what the baseline level of sodium in 
menus will be for SY 2022-2023 due to a lack of recent data. The 
USDA study, ``Successful Approaches to Reduce Sodium in School 
Meals,'' also noted that reducing sodium can be challenging, 
especially when using pre-packaged products. Schools may no longer 
purchase high-sodium items, and manufacturers may eliminate certain 
product lines.\66\ However, the FDA's voluntary sodium goals may 
have already led to the reduced use of high-sodium pre-packaged 
foods and reformulation of some products, which may help to reduce 
the transition challenges.
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    \64\ 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.
    \65\ 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.
    \66\ 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.
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Analyses Related to Gradual Sodium Reduction

    A variety of factors may affect the reduction of sodium in 
school meals, including the short-term FDA sodium voluntary targets, 
improved sodium component Healthy Eating Index (HEI) scores, an 
adjustment for actual consumption of meals by students, and 
palatable reduction over time. Additionally, a comparison to sodium 
requirements in other organizations and a summary of health benefits 
of sodium reduction may inform further reduction of sodium content 
in school meals. These points may be considered alongside the 
expected additional cost of the final rule sodium limits.

[[Page 32105]]

    The FDA sodium voluntary targets are designed to support a 
reduction in average daily sodium intake of 12 percent nationwide by 
targeting products across almost all available food categories 
containing commercially processed, packaged, and prepared foods.\67\ 
An internal USDA analysis of school foods that met or did not meet 
the FDA voluntary food guidance used a matching process between 
categories of food products shown to have been on menus in the SNMCS 
and the FDA food categories. For products that did not meet the FDA 
voluntary sodium reduction guidance, the sodium content of these 
products was capped at the FDA short-term targets across all the 
potential food categories for the item to simulate reduction in 
those targeted food groups. This analysis found that when foods 
served in school meals met the FDA voluntary sodium reduction 
targets the overall sodium content of menus decreased by 
approximately 10 percent. Some foods served in school meals, 
including milk, fresh fruits and vegetables, and fresh cooked meats 
are not targeted for sodium reduction because most contain naturally 
occurring sodium. Condiments/accompaniments, breads/grains, 
combination entrees, some cheeses and a variety of other foods are 
targeted, leading to an estimated total reduction of 10 percent of 
menu sodium content. As detailed in the rule preamble, FDA's goals 
are not intended to focus on food or beverages that contain only 
naturally occurring sodium, but rather, to focus on items where 
actionable reductions in sodium are feasible. The sodium limits in 
this final rule account for naturally occurring sodium levels in 
foods and beverages in the current food supply. Therefore, foods and 
beverages containing naturally occurring sodium are not exempt from 
these sodium limits; rather, the sodium limits in this final rule 
account for naturally occurring sodium.
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    \67\ https://www.fda.gov/food/cfsan-constituent-updates/fda-issues-sodium-reduction-final-guidance.
---------------------------------------------------------------------------

    This analysis also showed that many products were available in 
SY 2014-2015 that would meet a 10 percent sodium reduction in 
breakfasts and lunches if menus are changed to include these 
products. At lunch, about 70 percent of accompaniments/condiments 
and combination entrees available already met the FDA voluntary 
sodium targets. At breakfast, 96 percent of accompaniments and 85 
percent of combination entrees met the FDA sodium targets. Replacing 
condiments and combination entrees served at lunch would require the 
most effort with regards to sodium reduction through scratch 
cooking, menu changes, and product reformulation. However, minimal 
scratch cooking and reformulation is needed to reduce sodium by 10 
percent. It is of note that current FDA voluntary targets are short-
term and equal to a 10 percent reduction when applied to the NSLP 
and SBP menus,\68\ and this rule finalizes a gradual 15 percent 
reduction for the NSLP and 10 percent reduction for the SBP.
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    \68\ Internal USDA analysis using FDA targets and SNMCS data.
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    The benefits of the new sodium limits are best measured with the 
HEI component scores. While the HEI is usually used to measure 
nutritional quality for daily dietary intake (ex. 24-hour recalls, 
food diaries), it can also be used to evaluate the alignment of 
single meals to the Dietary Guidelines. The maximum score for sodium 
is 10, indicating <=1.1 grams of sodium per 1,000 calories, and the 
minimum score available is zero, indicating >=2.0 grams of sodium 
per 1,000 calories.\69\ A lower score indicates a higher sodium 
level in foods (higher sodium density), so a score of 10 is best and 
indicates lower levels of sodium in line with the Dietary 
Guidelines. This formula for scoring the sodium component is the 
same in the HEI-2010, HEI-2015, and HEI-2020 \70\ scoring 
versions.\71\ The SNMCS reports \72\ use the HEI-2010 version, but 
because the sodium component score did not change in 2015, HEI 
scores in tables 13 and 14 could be considered either HEI-2010 or 
HEI-2015. Intakes between the minimum and maximum levels of sodium 
are scored proportionately. Tables 13 and 14 show the HEI scores for 
menus that meet the sodium targets in the transitional standards 
rule and as finalized in this rule. The scores demonstrate improved 
consistency with the goals of the Dietary Guidelines through a 
decreased level of sodium density. For lunch, the sodium limit 
corresponds to an increase of 263 percent in HEI sodium component 
scores over the five years of implementation for elementary, middle, 
and high schools, respectively (table 14). Breakfast menu HEI scores 
were already 10 for the sodium component in SY 2014-2015 (table 13). 
However, further improvement is necessary to reach sodium intake 
levels recommended in the 2019 sodium dietary reference intakes 
(DRIs),\73\ which have also been recommended in the Dietary 
Guidelines for Americans, 2020-2025. HEI sodium component scores are 
a good measure of sodium density, but Dietary Reference Intakes for 
sodium also provide recommendations for daily sodium intake by age 
group in the U.S. and Canada.\74\ The latest edition of the sodium 
and potassium DRIs was released in 2019 and also included Chronic 
Disease Reduction Risk (CDRR) values that are a recommended maximum 
daily intake level to prevent chronic disease (table 15). Various 
organizations, including both the USDA through the Dietary 
Guidelines and non-Federal groups 75 76 have indicated 
support for usage of these CDRR proportions as the goal for sodium 
consumption in school meals.
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    \69\ https://www.fns.usda.gov/how-hei-scored.
    \70\ HEI-2020 was published in September 2023, after this 
analysis was complete. For application to school age children in 
this RIA, using HEI-2010, HEI-2015 or HEI-2020 produces the same 
scores.
    \71\ https://epi.grants.cancer.gov/hei/comparing.html.
    \72\ https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
    \73\ https://nap.nationalacademies.org/catalog/25353/dietary-reference-intakes-for-sodium-and-potassium.
    \74\ National Academies of Sciences, Engineering, and Medicine; 
Health and Medicine Division; Food and Nutrition Board; Committee to 
Review the Dietary Reference Intakes for Sodium and Potassium; Oria 
M., Harrison M., Stallings V.A., editors. Dietary Reference Intakes 
for Sodium and Potassium. Washington (DC): National Academies Press 
(US); 2019 Mar 5. Available from: https://www.ncbi.nlm.nih.gov/books/NBK538102/ doi: 10.17226/25353.
    \75\ https://www.cspinet.org/sites/default/files/2022-03/CSPI%20Transition%20Final%20Rule%20Comment%202022.pdf.
    \76\ https://www.heart.org/-/media/Files/About-Us/Policy-Research/Fact-Sheets/Access-to-Healthy-Food/INFOGRAPHIC-Lowering-Sodium-in-School-Foods.pdf.

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[[Page 32106]]

[GRAPHIC] [TIFF OMITTED] TR25AP24.108

[GRAPHIC] [TIFF OMITTED] TR25AP24.109

[GRAPHIC] [TIFF OMITTED] TR25AP24.110

    School meal consumption data yields differing HEI scores from 
the menu data presented above. The sodium component HEI scores of 
consumed lunches in SY 2014-2015 were 4.2 on average for NSLP 
participants of all age/grade groups and a slightly better score 
than 4.0 on average for non-participants.\77\ NSLP participants had 
a lunch sodium component score of 4.7, 4.6, and 3.0 for elementary, 
middle, and high schools, respectively. For breakfast, sodium 
component HEI scores in SY 2014-2015 were 8.7 on average for SBP 
participants and 7.9 on average for non-participants across age/
grade groups. SBP participants had a breakfast sodium component 
score of 9.6, 9.0, and 6.7 for elementary, middle, and high schools, 
respectively.\66\ Since both breakfast and lunch consumption data 
include competitive foods and foods brought from home, it is 
difficult to compare the menu sodium scores to the scores based on 
the consumed amount of sodium. Overall lunch HEI-2010 scores (scored 
out of 100), including all elements of the meal consumed, were 80.1 
for NSLP participants and 65.1 for students that were not NSLP 
participants. Overall breakfast HEI-2010 scores were 66.1 for SBP 
participants and 58.9 for students that were not SBP 
participants.\78\ While participants of school meal programs have 
higher meal HEI scores, indicating a higher adherence to the 
recommendations of the Dietary Guidelines,\79\ there is room for 
improvement overall. For sodium, there is especially room for 
improvement in lunches at all ages and in high school breakfasts. 
The final rule sodium limits would improve these scores even when 
accounting for foods consumed that are not part of a reimbursable 
meal.
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    \77\ SNMCS Report Volume 4 Appendices I to P--Tables J.1 to J.4 
and Tables M.1 to M.4.
    \78\ SNMCS Report Volume 4.
    \79\ The HEI-2010 score corresponds to the Dietary Guidelines 
for Americans, 2010-2015.

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[[Page 32107]]

    Other reasons to finalize a single sodium reduction with a 
longer implementation timeline include palatability and the need for 
product reformulation. Manufacturers have found that a 10 percent 
reduction in sodium for individual products is manageable with 
regards to product reformulation and consumer approval in the past, 
as well as in internal discussions with USDA.\80\ Various studies 
agree with gradual reduction being manageable for consumers both at 
an individual and population level.81 82 83 Additionally, 
small reductions of sodium (2 to 5 percent) are generally not 
noticed by consumers.\84\ The 15 percent and 10 percent reduction 
will not affect every single food product equally but will be spread 
across the lunch and breakfast menus, respectively, at varying 
levels. For instance, some products may easily be reduced in sodium 
content by 20 percent, whereas only a 5 percent change may be 
possible in others. Manufacturers also may have existing lower 
sodium product lines in their portfolio that they may be able to use 
without needing to reformulate existing products. Additionally, 
manufacturers may already be making strides in adjusting products as 
a result of the short-term FDA voluntary sodium guidance that was 
released in October 2021, especially with additional updated 
guidance expected to come out in 2024.
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    \80\ Cobb L.K., Appel L.J., Anderson C.A., Strategies to reduce 
dietary sodium intake. Curr Treat Options Cardiovasc Med. 
2012;14(4):425-434. doi:10.1007/s11936-012-0182-9.
    \81\ Liem D.G., Miremadi F., Keast R.S., Reducing sodium in 
foods: the effect on flavor. Nutrients. 2011;3(6):694-711. 
doi:10.3390/nu3060694.
    \82\ Levings J.L., Cogswell M.E., Gunn J.P., Are reductions in 
population sodium intake achievable? Nutrients. 2014;6(10):4354-
4361. Published 2014 Oct 16. doi:10.3390/nu6104354.
    \83\ Dehmer S.P., Cogswell M.E., Ritchey M.D., et al. Health and 
Budgetary Impact of Achieving 10-Year U.S. Sodium Reduction Targets. 
Am J Prev Med. 2020;59(2):211-218. doi:10.1016/j.amepre.2020.03.010.
    \84\ Drake S.L., Lopetcharat K., Drake M.A., Salty taste in 
dairy foods: can we reduce the salt? [published correction appears 
in J Dairy Sci. 2012 Dec;95(12):7429]. J Dairy Sci. 2011;94(2):636-
645. doi:10.3168/jds.2010-3509.
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    USDA completed a limited search of other food service operations 
in the U.S. in order to compare their sodium requirements to those 
finalized in this rule. The CDC Food Service Guidelines for Federal 
Facilities were designed to be used in Federal, State, and local 
government facilities, as well as hospitals, health care facilities, 
colleges and universities, private worksites, stadiums, and 
recreation centers.\85\ This set of guidelines recommends that all 
meals, defined as an entr[eacute]e and two sides, contain <=800 
milligrams of sodium. Entrees alone should contain <=600 milligrams 
of sodium and all side items alone contain <=230 milligrams of 
sodium. Though these guidelines are directed toward adults, it is 
helpful that beverages are included in these guidelines unlike other 
available measures since the NSLP and SBP require milk as part of 
the school food pattern. The U.S. Army Food Program Implementation 
Guide for Nutrition Standards \86\ and the Healthier Campus 
Initiative Guidelines \87\ also advise that lunch and dinner meals 
should contain <=800 milligrams of sodium. The National Restaurant 
Association's Kids Live Well program \88\ advises that at least two 
of the children's meal options served in restaurants should contain 
<=700 milligrams of sodium, including at least two different food 
groups (fruit, vegetable, non/low-fat dairy, meat/meat alternative, 
and whole grains) and at least one of the two food groups must be a 
fruit or vegetable. No mention is made in the Kids Live Well program 
materials if a beverage is included as part of a meal when 
calculating the total sodium content. An 8-ounce carton of milk 
contains up to 130 milligrams of sodium, indicating that the lunch 
sodium limits of 935 milligrams, 1,035 milligrams, and 1,080 
milligrams for elementary, middle, and high schools are achievable 
relative to organization limits when accounting for milk and the 
full meal pattern requirements.
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    \85\ https://www.cdc.gov/obesity/downloads/guidelines_for_federal_concessions_and_vending_operations.pdf.
    \86\ https://quartermaster.army.mil/jccoe/Operations_Directorate/QUAD/nutrition/Implementation-Guide-for-Go-for-Green-Army.pdf.
    \87\ https://www.ahealthieramerica.org/healthier-campus-initiative-20#resource_grid-292.
    \88\ https://restaurant.org/getmedia/f829f35b-917a-432d-8192-9b1c79864d0d/kids-livewell-getting-started.pdf.
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Health Benefits

    The most important reason for sodium reduction in school meals 
is the health benefits. Closer alignment of school meals with the 
goals of the Dietary Guidelines for Americans, 2020-2025 is meant to 
promote a healthy lifestyle and prevent chronic disease by meeting 
dietary needs. During SY 2011-2012, U.S. elementary, middle, and 
high school age school children consumed about 3,050 mg, 3,115 mg, 
and 3,565 mg of sodium daily, respectively.\89\ This exceeds the 
recommended daily sodium DRI values \90\ for school age children; 
1,500 mg for age 4 to 8 years, 1,800 mg for age 9 to 13 years, and 
2,300 mg for age 14 to 18 years. Sodium DRI values are presented by 
age group so there is some overlap when comparing to school age 
groups.
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    \89\ Quader ZS, Gillespie C, Sliwa SA, et al. Sodium Intake 
among US School-Aged Children: National Health and Nutrition 
Examination Survey, 2011-2012. J Acad Nutr Diet. 2017;117(1):39-
47.e5. doi:10.1016/j.jand.2016.09.010.
    \90\ 2019 Sodium Chronic Disease Reduction Risk (Dietary 
Reference Intake) values.
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    Reducing sodium intake has been shown to reduce blood pressure 
in children, birth to age 18 years. This was shown in a systematic 
review conducted in 2015 by the Dietary Guidelines Advisory 
Committee (DGAC).\91\ The 2015 DGAC also conducted an update on the 
2013 Institute of Medicine (IOM) (now NASEM) and National Heart, 
Lung, and Blood Institute (NHLBI) systematic reviews that evaluated 
the relationship between sodium intake and the risk of 
cardiovascular disease (CVD). The DGAC found agreement with the 
NHLBI review, which concluded that ``a reduction in sodium intake by 
approximately 1,000 mg per day reduces CVD events by about 30 
percent'' and that ``higher dietary sodium intake is associated with 
a greater risk for fatal and nonfatal stroke and CVD.'' The DGAC 
also found agreement with the IOM review that found that there is 
evidence to support a positive relationship between higher levels of 
sodium intake and risk of CVD and is consistent with blood pressure 
serving as a surrogate indicator of CVD risk.\80\ Blood pressure 
tracks over the life course, meaning that reducing sodium intake and 
maintaining a healthy blood pressure level in childhood can benefit 
individuals into adulthood.\92\ A recent study suggests that among 
the three major dietary groups addressed in this rule (sodium, added 
sugars, and whole grains), children's consumption of sodium at the 
Dietary Guidelines, 2020-2025 recommendations into adulthood has the 
largest potential health and economic impacts. The maintenance of 
this dietary pattern from school age was associated with 5,580 fewer 
adult deaths from CVD and cancer and $8.26 billion in reduced 
healthcare-related costs per year.\93\ Evidence is strong to support 
the conclusion that reduction in sodium intake reduces blood 
pressure and in turn reduces CVD risk and CVD events. A gradual 
reduction in sodium content of school meals will likely contribute 
to an improvement of dietary habits, blood pressure, and CVD risk 
factors in NSLP and SBP participants that could track into 
adulthood.
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    \91\ 2015 Dietary Guidelines Advisory Committee and Nutrition 
Evidence Library. Systematic Reviews of the Cross-Cutting Topics of 
Public Health Importance Subcommittee. 2015 Dietary Guidelines 
Advisory Committee Project. Alexandria, VA: U.S. Department of 
Agriculture, Food and Nutrition Service, Center for Nutrition Policy 
and Promotion, March 2017. Available at: https://nesr.usda.gov/2015-dietary-guidelines-advisory-committee-systematic-reviews.
    \92\ Cheng S, Xanthakis V, Sullivan LM, Vasan RS. Blood pressure 
tracking over the adult life course: patterns and correlates in the 
Framingham heart study. Hypertension. 2012;60(6):1393-1399. 
doi:10.1161/HYPERTENSIONAHA.112.201780.
    \93\ Wang L, Cohen J, Maroney M, et al. Evaluation of health and 
economic effects of United States school meal standards consistent 
with the 2020-2025 dietary guidelines for Americans. The American 
Journal of Clinical Nutrition. 2023. DOI: https://doi.org/10.1016/j.ajcnut.2023.05.031.
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Meats/Meat Alternates at Breakfast

    This rule codifies the combined grains and meats/meat alternates 
meal component at breakfast and removes the requirement for schools 
to offer 1.0 ounce equivalent of grains each day at breakfast, 
included from the 2020 proposed rule Simplifying Meal Service and 
Monitoring Requirements in the National School Lunch and School 
Breakfast Programs. Schools may offer grains, meats/meat alternates, 
or a combination of both to meet this combined component 
requirement. The minimum daily requirement (1 ounce equivalent) and 
minimum weekly requirement (7-9 ounce equivalents, depending on the 
age/grade group) for this component remain the same. This rule 
allows for these daily and weekly requirements to be met with grains 
and/or meat/meat alternates. This provision does not require school 
food authorities to change their breakfast meal service. Schools 
should balance this

[[Page 32108]]

flexibility while still offering grains to ensure adequate nutrition 
of school breakfasts. In SY 2014-2015, whole grain-rich offerings in 
the SBP helped school breakfasts meet the Dietary Guidelines 
recommendations for grains.\94\ This change allows school food 
authorities the flexibility to develop SBP menus that include meats/
meat alternates without a requirement to serve a minimum amount of 
grains. This change is not anticipated to impact program costs, but 
rather, to provide flexibility for school food authorities to 
balance resources and meal pattern requirements with student 
preferences when planning SBP menus.
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    \94\ 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 
Project Officer: John Endahl. Alexandria, VA: April 2019. Available 
at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
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Substituting Vegetables for Grains in Tribal Communities

    Current regulations allow program operators in American Samoa, 
Puerto Rico, and the U.S. Virgin Islands to serve vegetables such as 
yams, plantains, or sweet potatoes to meet the grains or breads 
component. This rule allows school food authorities and schools that 
are tribally operated, operated by the Bureau of Indian Education, 
and that serve primarily American Indian or Alaska Native children 
to serve vegetables to meet the grains requirement in NSLP and SBP. 
For SFSP and CACFP, this final rule allows sponsors, institutions, 
and facilities, as applicable, that serve primarily American Indian 
or Alaska Native children to substitute vegetables for grains or 
breads. This rule also allows all program operators in Guam and 
Hawaii to substitute vegetables for grains or breads in NSLP, SBP, 
SFSP, and CACFP. This final rule clarifies that under this 
provision, any vegetable may substitute for the grains or bread 
component. However, USDA emphasizes the importance of traditional 
and culturally relevant vegetables, including traditional vegetables 
such as breadfruit and prairie turnips, for grains.
    USDA has limited data regarding consumption of these foods in 
the SBP and NSLP and the cost of these specific foods to schools 
serving American Indian and/or Alaska Native children specifically. 
However, SNMCS data from SY 2014-2015 indicate that starchy 
vegetables, including potatoes, and red/orange vegetables such as 
sweet potatoes, cost $0.18 per portion on average and bread/grain 
items also cost $0.18 per portion on average. Based on this data we 
expect this provision will lead to minimal, if any, cost change per 
meal. Further, program operators would not be required to make any 
changes to their menus under this rule and may continue to serve 
grain items to meet the grains component requirement if that is most 
cost-effective.

Traditional Indigenous Foods

    This rule states in regulation that traditional Indigenous foods 
may be served in reimbursable school meals. USDA acknowledges that 
many traditional Indigenous foods may already be served in school 
meal programs; the goal of this provision is to draw attention to 
this option and support efforts to incorporate these foods into 
school meals. By ``traditional food,'' USDA means the definition 
included in the Agriculture Improvement Act of 2014 \95\ which 
defines traditional food as ``food that has traditionally been 
prepared and consumed by an American Indian tribe,'' which includes 
wild game meat, fish, seafood, marine mammals, plants, and berries.
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    \95\ Agriculture Improvement Act of 2014, as amended (25 U.S.C. 
1685(b)(5)).
---------------------------------------------------------------------------

    Due to limited data regarding the consumption and cost of 
traditional Indigenous foods in the SBP and NSLP, no cost analysis 
can be done to predict how this provision would affect child 
nutrition programs. Traditional Indigenous foods may be served in 
school meals under existing guidance, and this provision encourages 
rather than requires schools to serve traditional Indigenous foods, 
so it is expected to result in a negligible annual cost change for 
food service operations.

Afterschool Snacks

    USDA aligns NSLP snack requirements for school-aged children 
with the CACFP snack requirements in this final rule, effective SY 
2025-2026. NSLP requirements for snacks served to infants and 
preschool-aged children remain in effect. For school-aged children, 
under this final rule, reimbursable snacks include two of the 
following five components: milk, vegetables, fruits, grains, and 
meats/meat alternates. USDA also requires that NSLP snacks adapt 
these existing CACFP snack requirements: (1) only one of the two 
components served at snack may be a beverage; (2) milk served to 
children age 6 and older must be fat-free or low-fat and may be 
flavored or unflavored; (3) grain-based desserts do not count toward 
meeting the grains requirement, and (4) foods that are deep-fat 
fried on-site are not reimbursable NSLP snacks. Additionally, the 
added sugars product limits for breakfast cereals and yogurt 
finalized in this rule apply to NSLP snacks, effective SY 2025-2026. 
The component options for afterschool snacks are the same categories 
as previously, aside from fruits and vegetables now being separate 
components.
    The number of afterschool snacks served represents four percent 
of the number of lunches served, based on 2023 data.\96\ Of those 
snacks served, over 80 percent were breads/grains, fruits, and milk. 
SNMCS data from SY 2014-2015 indicate that under half of snack items 
served were beverages. Milk served was already meeting the final 
rule requirement to be fat-free or low-fat, flavored or unflavored. 
Combination entrees were not considered in this analysis because 
they are very rarely served as snacks.
---------------------------------------------------------------------------

    \96\ USDA--Food and Nutrition Service National Database Publicly 
Available Data.
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    This provision will require schools to replace grain-based 
desserts with other grains and to limit breakfast cereals and 
yogurts to those that meet the product-based added sugars limits, 
upon implementation. Cereal costs the same per dry ounce regardless 
of added sugars content, so there would be no cost change. In SY 
2014-2015, grain-based desserts made up 14 percent of items served 
at snacks, and about half of the grain items in snacks were grain-
based desserts. On average, grain-based desserts cost $0.35 per 
ounce equivalent and other grain items cost $0.19 per ounce 
equivalent, about a $0.22 difference after adjusting for inflation. 
Switching those to grains/breads that are not grain-based desserts 
would save approximately $9.4 million. Since yogurt was not as 
widely served as a snack item, the cost of switching to yogurt 
products with no more than 12 grams of added sugars per 6 ounces--an 
increase of $0.05 per portion--is under half a million dollars. In 
total, the final rule that aligns NSLP snack requirements with CACFP 
snack requirements is estimated to save around $9 million on average 
(table 16).
[GRAPHIC] [TIFF OMITTED] TR25AP24.111


[[Page 32109]]



Substituting Vegetables for Fruits at Breakfast

    This rule establishes that schools can continue to substitute 
vegetables for fruits at breakfasts but simplifies the vegetable 
variety requirement. Under this final rule, schools that substitute 
vegetables more than one day per school week will be required to 
offer vegetables from at least two subgroups. The vegetable 
subgroups include starchy; red and orange; dark green; beans, peas, 
and lentils; and ``other'' vegetables. Starchy vegetables are 
consumed at a higher rate in children and adolescents compared to 
the other vegetable subgroups, so this provision continues to 
encourage consumption of a variety of vegetables at breakfast, in 
cases where schools opt to substitute vegetables for fruit.
    SNMCS data from SY 2014-2015 showed that only about three 
percent of fruits were substituted for vegetables at breakfast. Of 
the servings of vegetables substituted for fruits in SY 2014-2015, 
half were starchy, and the other half were primarily red and orange 
vegetables. USDA expects more vegetables to be offered in breakfast 
meals in order to meet the required reduction in added sugars. This 
may lead to vegetables being offered alongside servings of eggs or 
in breakfast burritos, for example. However, it is also expected 
that fruits will be served in most breakfasts since fruits are easy 
to incorporate in meals and menus, and fresh fruits contain no added 
sugars, only naturally occurring sugars. Depending on the local 
prices, school food authorities will decide the most cost-effective 
menus for their operations, but this provision continues to promote 
vegetable variety at breakfast.
[GRAPHIC] [TIFF OMITTED] TR25AP24.112

    An internal USDA analysis simulated switching between 10 and 25 
percent of fruit servings at breakfast to vegetables. This 
simulation assumed that half of the vegetables would be starchy 
vegetables and the other half would be non-starchy vegetable 
subgroups (red and orange; dark green; beans, peas, and lentils, and 
``other'' vegetables), following the pattern of substitution shown 
in SNMCS. In SY 2014-2015, starchy vegetables served at breakfast 
and lunch cost approximately $0.18 per portion, and all other 
vegetables served cost approximately $0.20 per portion, on average. 
Fruits served at breakfast were $0.21 per portion, on average. Using 
these prices per portion and the number of breakfasts served in 
2023, there would be a savings ranging from $4 million to $10 
million resulting from a substitution of 10 to 25 percent of fruit 
servings with vegetable servings (table 17).

Nuts and Seeds

    This rule allows nuts and seeds to credit for the full meats/
meat alternates component in all child nutrition programs and meals. 
It removes the 50 percent crediting limit for nuts and seeds at 
breakfast, lunch, and supper. USDA expects that nuts and seeds will 
most often continue to be offered in snacks or in small amounts at 
breakfast, lunch, or supper alongside other meats/meat alternates. 
Nuts and seeds are most often offered in school meals in the form of 
a nut butter (or nut butter alternative, such as soy or sunflower 
seed butter) in a sandwich.
    About 17 percent of daily lunch menus in SY 2014-2015 offered 
``other protein items'' in the form of eggs, seeds, nuts, beans, and 
peas.\97\ Of combination entrees served in the NSLP, about six 
percent were peanut butter and jelly sandwiches,\98\ including 
variations with sunflower seed butter and almond butter.\99\ Nuts, 
seeds, or nut/seed butters represented less than one percent of meat 
and meat alternate food items offered on NSLP menus \100\ Very few 
instances of serving whole nuts and seeds were found in this 
analysis at either breakfast or lunch. Because USDA expects that 
nuts and seeds will be minimally offered as the sole meat/meat 
alternate at a meal and because this change may take shape in a 
variety of combinations across menus, this element of the rule is 
not expected to result in a measurable per-meal cost change. The 
saturated fat content of school meals must be less than ten percent 
of total calories per week and replacing some lean sources of meat 
with nuts or seeds may result in higher saturated fat content of 
meals. When creating menus, operators must be aware of the saturated 
fat content of meals if offering more nuts and seeds. Operators who 
serve combination entrees using nut butters (e.g., peanut butter and 
jelly sandwich) will also need to consider requirements related to 
whole grains, although SY 2014-2015 data indicate that over 85 
percent of peanut butter and jelly served were prepared using whole 
grain-rich bread.
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    \97\ SNMCS Report Volume 2.
    \98\ Of these peanut butter and jelly sandwiches, over 85 
percent were made with whole grain-rich bread.
    \99\ SNMCS Study Data, USDA internal analysis.
    \100\ SNMCS Study Data, USDA internal analysis.
---------------------------------------------------------------------------

Beans, Peas, and Lentils at Lunch

    This final rule codifies the flexibility to allow school food 
authorities to count beans, peas, and lentils offered as a meat 
alternate at lunch toward the weekly beans, peas, and lentils 
vegetable subgroup requirement, included from the 2020 proposed rule 
Simplifying Meal Service and Monitoring Requirements in the National 
School Lunch and School Breakfast Programs. Under this option, as 
with the current requirement, schools would determine which overall 
meal component the beans, peas, and lentils would count toward: the 
vegetable meal component, or the meats/meat alternates meal 
component. This change aims to facilitate service of the legumes 
subgroup; compared to other vegetable subgroups, the legumes 
subgroup requirement has proven to be more difficult for some school 
food authorities to meet.
    Legumes are often an ingredient in combination entr[eacute]es. 
Such entr[eacute]es are common in lunch menus, especially in high 
schools where about 25 percent of daily menus include burritos, 
tacos, nachos, quesadillas, fajitas, or enchiladas.\101\ Children 
benefit from the array of essential nutrients legumes offer, 
including protein and fiber, regardless of whether legumes are 
labeled as a vegetable or meat alternate for menu planning purposes. 
The daily and weekly menus must still meet minimum quantity 
requirements for vegetables, which are unchanged. This flexibility 
will not result in a reduction in total calories or vegetables 
served, but rather allows school food authorities the ability to 
develop menus that better reflect student preferences. The daily and 
weekly meat/meat alternate quantities are also unchanged. There are 
negligible impacts to program costs associated with this 
flexibility.
---------------------------------------------------------------------------

    \101\ 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. Project Officer: John Endahl. Alexandria, VA: April 2019. 
Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.

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[[Page 32110]]

Competitive Foods--Bean Dip Exemption

    In this final rule, USDA is revising the terminology for this 
provision based on public comment. Instead of referring to 
``hummus'' in regulation, this final rule will refer to ``bean 
dip,'' which includes hummus. This change reflects input received 
through a public comment, which noted that the word ``hummus'' 
already has a culturally significant meaning and is traditionally 
made from chickpeas (rather than any variety of beans, peas, or 
lentils). This rule adds bean dip to the list of foods exempt from 
the total fat standard in the competitive food, or Smart Snack, 
regulations. Smart Snacks are foods that are sold to students 
outside of the school meal programs, such as foods sold a la carte, 
in school stores, in vending machines, or in any other venues where 
food is served to students during school hours. Bean dip is already 
permitted as a part of a reimbursable school meal but with this 
change could also be sold as a Smart Snack. A specific definition of 
bean dip is also given as part of this provision. Bean dip will 
still be subject to the saturated fat standard, which limits 
competitive foods to less than 10 percent of calories from saturated 
fat per item as packaged or served and the sodium standard in which 
snacks must be 200 mg of sodium or less and entrees must be 480 mg 
of sodium or less.\102\
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    \102\ https://fns-prod.azureedge.us/sites/default/files/resource-files/smartsnacks.pdf.
---------------------------------------------------------------------------

    USDA does not collect or track competitive food sales, so it is 
unclear the exact cost change to school food authorities that will 
result from this provision. A served portion of bean dip was 
comparable in price to a served portion of regular or reduced-fat 
peanut butter according to SNMCS data. Peanut butter and bean dip 
are comparable in that they are served as part of a snack alongside 
another food (i.e. pretzels, bread, vegetables, apple slices, etc.). 
As a result, USDA expects a minimal cost change for school food 
authorities that choose to sell bean dip as a competitive food due 
to this provision. Individual schools often sell competitive foods 
to complement reimbursable foods and maintain a revenue-neutral 
operation; therefore, USDA assumes that schools will opt to sell 
bean dip as a competitive food if they determine it is financially 
beneficial. When data were collected in SY 2014-2015, bean dip was 
served minimally in the NSLP, but it is likely the popularity of 
bean dip among students has increased since that time, so allowing 
an additional option for schools could be beneficial to schools.

Meal Modifications

    This rule updates the regulatory text for meal modifications, 
removes the term ``medical or other special dietary needs'' from the 
regulations, authorizes State licensed healthcare professionals and 
dietitians to write a medical statement in support of a meal 
modification for a disability, and defines the term ``State licensed 
healthcare professional'' in regulation. These changes are not 
expected to impact program costs, but rather, clarify procedures for 
State agencies, schools, institutions, and facilities working to 
meet the needs of participants with disabilities that restrict their 
diets. This provision was included in the 2020 proposed rule 
Simplifying Meal Service and Monitoring Requirements in the National 
School Lunch and School Breakfast Programs.

Clarification of Requirements for Potable Water

    This final rule maintains the requirement that schools make 
potable water available and accessible without restriction to 
children at no charge during the meal service, and clarifies in 
regulation that the potable water must be ``plain.'' This is a 
change from the 2020 proposed rule, where this provision was 
introduced, Simplifying Meal Service and Monitoring Requirements in 
the National School Lunch and School Breakfast Programs, which would 
have allowed schools to offer calorie-free, naturally flavored, 
noncarbonated water to meet the potable water requirement, without 
requiring that plain potable water be offered. This change from the 
proposed rule was made in response to public comments that 
emphasized the importance of ensuring children have access to plain 
potable water. This change is not expected to increase costs, as 
schools will be in compliance with the potable water requirement by 
continuing to offer plain potable water.

Synthetic Trans Fat

    This final rule change eliminates the requirement for SBP, NSLP, 
and competitive foods to have zero synthetic trans fat.\103\ FDA 
regulations removed synthetic trans fat from the United States food 
supply, with a final compliance date of January 1, 2020, and thus, 
the requirement to monitor synthetic trans fat in the school meal 
programs is unnecessary. This final rule eliminates regulations that 
are not necessary since synthetic trans fat is no longer in the food 
supply. This change will align Program regulations with the food 
supply standards. There are no impacts to program costs associated 
with this change. This provision was included in the 2020 proposed 
rule Simplifying Meal Service and Monitoring Requirements in the 
National School Lunch and School Breakfast Programs.
---------------------------------------------------------------------------

    \103\ This restriction does not apply to naturally occurring 
trans fats, which are present in meat and dairy products.
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Professional Standards: Hiring Exemption for Medium and Large Local 
Educational Agencies

    USDA codifies allowing State agency discretion in the hiring of 
a school nutrition program director in a medium or large local 
educational agency for individuals who have 10 years or more of 
school nutrition program experience but who lack a bachelor's or 
associate's degree. In other words, this provision allows for a 
substitution of experience for education to widen the potential 
applicant pool for school nutrition program director positions. A 
high school diploma or GED is still required, but this shift may 
help with hiring challenges experienced in recent years. Instead of 
education being the only path to promotion, substantial experience 
can be an alternative path. Directors hired under this provision are 
encouraged to work toward a degree related to nutrition and/or 
business, but this is not required. This rule also clarifies in 
regulation that State agencies may determine what counts as 
``additional educational experience'' for the hiring standards.
    This provision is estimated to have no cost impact. Codifying 
this standard allows State agencies more discretion in hiring 
selection, but States are not required to change current practices. 
It is unclear exactly how many school food authorities this will 
affect and how many individuals have 10 years or more of experience 
and could be promoted to director positions. However, USDA has 
recently received requests from State agencies to substitute school 
nutrition program experience for a higher degree in order to fill 
existing vacancies. Also, in response to USDA's 2018 professional 
standards proposed rule,\104\ USDA received 13 comments (out of 76 
total comments) that mentioned alternatives to the education 
requirement. Of those, 9 specifically recommended experience as a 
substitute for a degree, with 10 years of experience being the most 
common suggestion. Data will be collected by USDA between SY 2024-
2025 and SY 2029-2030 to support ongoing assessment of the effects 
of this rule change. In 2017, around 8.3 million U.S. workers (5.4 
percent) were employed in food preparation and serving-related 
occupations.\105\ Employment in this category is beginning to 
recover from COVID-era challenges that began in 2020. Of the food 
service managers across the U.S. in 2019 and 2021, 9.6 percent had 
less than a high school diploma, 28.6 percent had a high school 
diploma or equivalent, and 25.7 percent had some college but no 
degree.\106\ Thirty-six percent of food service managers had an 
associate's degree or higher level of education. For school food 
authority directors specifically, a recent USDA study indicated that 
12 percent of school food authority directors had advanced degrees, 
29 percent had bachelor's degrees, 13 percent had associate's 
degrees, 20 percent had some college but no degree, and 26 percent 
had high school diplomas.\107\ The study also found that directors 
at larger school food authorities had higher levels of educational 
attainment. Comparing school food authority directors to food 
service managers across the U.S., school food authority directors 
have a higher level of education on average than food service

[[Page 32111]]

managers, yet about 46 percent of school food authority directors 
have no degree. As a result, it is likely that a substantial 
percentage of operations could benefit from the ability to promote 
based on experience rather than education level.
---------------------------------------------------------------------------

    \104\ https://www.federalregister.gov/documents/2018/03/06/2018-04233/hiring-flexibility-under-professional-standards.
    \105\ https://www.census.gov/library/stories/2022/07/how-food-service-transportation-workers-fared-before-pandemic.html.
    \106\ https://www.bls.gov/emp/tables/educational-attainment.htm.
    \107\ Urban location and low poverty level of the SFA were also 
correlated with higher educational attainment among SFA directors. 
USDA, FNS, Office of Policy Support, School Nutrition and Meal Cost 
Study, Final Report Volume 1: School Meal Program Operations and 
School Nutrition Environments, prepared by Mathematica Policy 
Research and Abt Associates, April 2019, pp. 34-35, https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCSVolume1.pdf.
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Buy American

    This final rule seeks to strengthen the Buy American requirement 
but also acknowledges that purchasing domestic food products is not 
always feasible for schools. USDA maintains the current two limited 
exceptions to the Buy American provision and will also phase in a 
new threshold limit for school food authorities using these 
exceptions. The two exceptions apply when: (1) the product is not 
produced or manufactured in the U.S. in sufficient and reasonably 
available quantities of a satisfactory quality; or (2) competitive 
bids reveal that the costs of a U.S. product are significantly 
higher than the non-domestic product. Consistent with current USDA 
guidance, this final rule clarifies in regulation that it is the 
responsibility of the school food authority to determine whether an 
exception applies.
    With this final rule, USDA institutes a phased approach over 
seven school years to reach a 5 percent ceiling on the non-domestic 
commercial foods a school food authority may purchase per school 
year. The phased approach would be the following:
     Beginning in SY 2025-2026, the non-domestic food cost 
cap will be 10 percent.
     Beginning in SY 2028-2029, the non-domestic food cost 
cap will be 8 percent.
     Beginning in SY 2031-2032, the non-domestic food cost 
cap will be 5 percent.
    School food authorities will be required to maintain 
documentation regarding use of an exception as well as to 
demonstrate that the percent non-domestic food costs of total 
commercial foods purchased per year are not more than the cap for 
that school year. Beginning in SY 2031-2032, the documentation must 
demonstrate that exceptions were used for no more than 5 percent of 
total commercial foods purchased per year. In addition, in response 
to public comment, USDA is including that when a school food 
authority purchases a food item found on the Federal Acquisition 
Regulations (FAR) 25.104 Nonavailable articles list, no further 
documentation is required, upon implementation of this final rule. 
There still may be individual school food authorities that cannot 
meet the threshold. USDA will work in concert with State agencies 
during implementation to provide needed technical assistance and 
guidance, and if, appropriate, an accommodation for temporary relief 
from the requirement as the State agency works with the school food 
authority on increasing their domestic purchases.
    This rule will codify the requirement to maintain documentation 
for an exception, while decreasing the amount of required 
documentation compared to current practices. To supplement this 
documentation, USDA will continue to collect information and data on 
the Buy American provision and school food authority procurement. 
This final rule will require all school food authorities to include 
the Buy American provision in documented procurement procedures, 
solicitations, contracts for foods and food products procured using 
informal and formal procurement methods, and in awarded contracts. 
State agencies will verify the inclusion of this language when 
conducting reviews. Additionally, this final rule codifies a 
definition of ``substantially,'' as well as a clarification of 
requirements for harvested, farmed, and wild caught fish.
    The Food and Nutrition Service Child Nutrition Program 
Operations Study \108\ collected data on Buy American exceptions 
during SY 2017-2018. This study found that an average of 8.5 percent 
of total food expenditures were purchased under exceptions among 
school food authorities that used an exception to the Buy American 
provision. During SY 2017-2018, 25.7 percent of school food 
authorities used an exception to the Buy American provision. Based 
on this data, it is likely that the majority of school food 
authorities already meet the final rule ceiling on the non-domestic 
commercial foods a school food authority may purchase per school 
year. Around a quarter of school food authorities may need to 
decrease their purchase of non-domestic commercial foods to reach 
the 5 percent limit starting in SY 2031-2032. Among the school food 
authorities using an exception to the provision, the reasons cited 
included: limited supply of the commodity or product (88 percent), 
increased costs of domestic commodities or products (43 percent), 
and quality issues with available domestic commodities or products 
(21 percent). The exceptions to the Buy American provision will help 
school food authorities control costs of purchasing domestic food 
products despite the eventual 5 percent ceiling.
---------------------------------------------------------------------------

    \108\ Child Nutrition Program Operations Study (CN-OPS-II) 
Report: School Year 2017-2018. https://fns-prod.azureedge.us/sites/default/files/resource-files/CNOPS-II-SY2017-18.pdf.
[GRAPHIC] [TIFF OMITTED] TR25AP24.113

    Some school food authorities will be more affected by the final 
rule Buy American provision than others (table 18). School food 
authorities that are small, located in towns, and that had either a 
low or high percentage of students approved for free and reduced-
price meals used exceptions for more than the 8.5 percent average of 
food expenditures. School food authorities falling in these groups 
may have the most difficulty meeting the Buy American provision 
finalized in this final rule. Larger school food authorities

[[Page 32112]]

(>999 students), those in suburban, city or rural environments, and 
those that have 30 to 59 percent of students approved for free and 
reduced-price meals are already closer to the final rule limit of 5 
percent and may have less difficulty complying with the change.
    For the 26 percent of school food authorities that used an 
exception to the Buy American provision during SY 2017-2018, USDA 
expects they will incur some costs associated with the need to 
update menus and/or update purchasing practices to meet the five 
percent ceiling. These costs are included in the regulatory 
familiarization cost totals that are detailed in the 
``Administrative Costs'' section above. Using SY 2009-2010 total 
food expenditure data from the School Food Purchase Study, we 
estimated the difference in food costs needed to reach the 5 percent 
threshold for the 26 percent of school food authorities that used 
exceptions in SY 2017-2018. Of those school food authorities that 
used an exception, 43 percent sought exemptions based on cost. The 
majority of those school food authorities (70 percent) used a cost 
threshold of 30 percent or less when determining whether a cost is 
significantly higher for a domestic commodity or product, warranting 
a use of exception. Therefore, we assume that, on average, the cost 
of purchasing domestic products will be 15 percent higher for those 
affected purchases.
    Based on the assumption that domestic products cost 15 percent 
more on average, food cost impacts vary by each phase over seven 
school years (table 19). Beginning in SY 2025-2026, school food 
authorities may use exceptions to purchase non-domestic foods for 10 
percent of total food cost expenditures. This is estimated to have 
negligible annual cost impact due to a 10 percent ceiling being 
higher than the 8.5 percent average among school food authorities 
using exceptions. However, some school food authorities such as 
those in towns (table 18) may need to make an incremental shift in 
food purchasing to meet the 10 percent limit, or the State agency 
may seek an accommodation for temporary relief from the requirement 
if the school food authority needs additional support. In SY 2028-
2029, the next phase of the Buy American provision is an 8 percent 
ceiling that is estimated to have a food cost impact of $0.40 
million annually. We estimate a nearly $3 million annual total food 
cost increase once the phased in non-domestic foods ceiling reaches 
5 percent in SY 2031-2032. Based on the data mentioned in the 
previous paragraph, the proposed rule estimated that 43 percent of 
the cost difference of using exemptions for 5 percent of food 
purchases instead of the 8.5 percent average is approximately $20 
million. A 15 percent increase in that cost equals approximately $3 
million. Proportionately, the cost of moving from the 8.5 percent 
average to 8 percent in SY 2028-2029 would have a food cost of 
approximately $0.40 million annually. In SY 2031-2032 and beyond 
when the ceiling reaches 5 percent we estimate a $3 million annual 
total food cost increase.
    Additionally, USDA estimates that the final rule record keeping 
requirement to include that school food authorities maintain 
documentation when using an exception and that school food 
authorities include language requiring Buy American in all 
procurement procedures, solicitations, and contracts and maintain 
such documentation. While the PRA section of this rule includes 
burden estimates associated with including and maintaining language 
requiring Buy American in all contracting documents and procurement 
procedures, USDA has promoted this as a best practice for years. 
Based on this longstanding guidance and public comments to the 
proposed rule that this is already in practice to some extent, USDA 
estimates half of school food authorities will develop and maintain 
changes to contracting documentation record each year, and that it 
takes approximately 20 hours NSLP and 10 hours for SBP \109\ to 
complete the record keeping requirement for each set of contracting 
and procurement documents. This results in a total of 270,535 burden 
hours. When using the latest hourly compensation of public 
administration in state and local government from 2022 of 
$54.05,\110\ the cost of this requirement is $15 million in SY 2024-
2025. For those school food authorities that are not already 
including this information in their procurement documents, we expect 
this is a one-time change that will be in place by SY 2025-2026 and 
annual maintenance will happen as part of their normal 
administrative processes.
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    \109\ As explained in the PRA (Paperwork Reduction Act program).
    \110\ Using the U.S. Bureau of Labor Statistics series ID of 
CMU3019200000000D of total compensation cost per hour worked for 
state and local government workers in public administration 
industries (https://data.bls.gov/cgi-bin/dsrv).
---------------------------------------------------------------------------

    For documenting exceptions to the non-domestic food purchase 
cap, USDA estimates all school food authorities (18,495 total) will 
develop and maintain 10 records each year per NSLP and SBP, and that 
it takes approximately 15 minutes \111\ to complete the record 
keeping requirement for each record documenting an exception. This 
results in a total of 89,030 annual burden hours. The additional 
cost of this reporting requirement is nearly $5 million annually. In 
total, USDA estimates that the final rule Buy American provision 
will cost $15 million leading up to SY 2025-2026 and approximately 
$5 million to $8 million annually starting in SY 2025-2026 with both 
food costs and record keeping included (table 19). USDA acknowledges 
that the estimated cost of this provision will add to school food 
authority costs, potentially reducing funds for other areas of 
spending. However, it will be at school food authority discretion 
how funds are shifted to meet the threshold for non-domestic foods. 
USDA does not anticipate that this provision will have any effect on 
the ability of school food authorities to meet school meal nutrition 
requirements.
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    \111\ See final rule Paperwork Reduction Act (PRA) burden 
charts.
[GRAPHIC] [TIFF OMITTED] TR25AP24.114

Geographic Preference

    In this rulemaking USDA is expanding geographic preference 
options by allowing locally grown, raised, or caught as procurement 
specifications (a written description of the product, or service 
that the vendor must meet to be considered responsive and 
responsible) for unprocessed or minimally processed food items in 
the child nutrition programs. This is intended to increase the 
procurement of local foods and ease procurement challenges for 
operators interested in sourcing food from local producers. USDA 
requested public input on whether respondents agree that this 
provision would ease procurement challenges for child nutrition 
program operators or if it would encourage smaller-scale producers 
to submit bids to sell foods to child nutrition programs. No 
specific cost impact is being estimated for this provision

[[Page 32113]]

since USDA does not have any applicable data, but USDA assumes that 
this option will be used at school food authority discretion 
depending on individual school budgets, the availability of local 
products, and other school and region-specific factors. USDA 
research found that among school food authorities participating in 
Farm to School, 85 percent served at least some local foods, and 
about 20 percent of participating school food authorities' total 
food spending was on local foods in School Year 2018-2019. In this 
same period, one-fifth of participating school food authorities used 
geographic preference in its current form to prioritize local foods 
in the bid or proposal evaluation process.\113\ Therefore, the 
expansion of geographic preference options may facilitate increased 
local food purchases by school food authorities at their discretion.
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    \112\ Record keeping costs are total annual estimates for the 
final Buy American provision, not estimates per phase of implemented 
cap. No inflation adjustment was completed for record keeping costs 
since they are not food costs or based on a factor of food costs.
    \113\ 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.
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Miscellaneous Changes

    This section establishes a variety of miscellaneous changes and 
updates to child nutrition program regulations, including 
terminology changes, from the 2023 proposed rule. For the ``legumes 
(beans and peas)'' vegetable subgroup, this rule changes the name to 
``beans, peas, and lentils'' to reflect the Dietary Guidelines, 
2020-2025. As noted in the rule preamble, the rule also finalizes a 
variety of technical corrections, including correcting cross-
references, updating definitions, removing outdated requirements, 
and revisions to the meal pattern tables to make them more user-
friendly.

Summary

    As noted above, this rule was developed in order to align school 
nutrition requirements more closely with the goals of the Dietary 
Guidelines for Americans, 2020-2025 and to support the continued 
transition to long-term requirements after the pandemic and 
implementation of the transitional standards rule. Most of the 
impacts associated with this rule are in the form of shifts in 
purchasing patterns and increased labor costs. Costs in this section 
are uncertain (and thus estimates should be considered as somewhat 
imprecise) but reflect the potential value of the changes in this 
rule that States and local entities may need to account for. There 
are no estimated changes in Federal costs due to the changes in this 
final rule.
[GRAPHIC] [TIFF OMITTED] TR25AP24.115

    The estimated cost to schools averages $206 million annually 
over eight school years, or $0.03 per lunch and breakfast in food 
and labor costs (table 20). The majority of costs associated with 
this rule are a result of purchasing different products with less 
sodium and the additional labor needed to increase scratch cooking, 
update menus, and introduce new recipes to reduce sodium. The 
estimated cost of shifting to the product specific added sugars 
limits and substituting vegetables for fruits is based on switching 
to products already available on the market; costs to schools may 
vary if manufacturers alter products or create new products to meet 
the added sugars regulations. However, we estimate cost savings to 
update the requirements for afterschool snacks related to food 
prices to meet the breakfast cereal and yogurt product-based added 
sugars limits. The costs associated with Buy American are due to 
additional food costs and additional burden hours for documentation. 
All estimates from this rule, intending to implement achievable 
requirements in alignment with the goals of the Dietary Guidelines, 
are supported by a variety of analyses of the most recently 
available data.
---------------------------------------------------------------------------

    \114\ Values reflect annual costs from sections above with added 
three percent annual inflation. Costs are also shown by school year 
in this table. This varies from table 1 which shows fiscal years and 
does not include expected annual inflation through the duration of 
the final rule.
    \115\ Due to rounding, numbers may not add up to rounded sum in 
`total' column exactly.
    \116\ Annual average over 8 school years of rule implementation.
    \117\ Only local costs (not State costs) are adjusted for 
inflation because they are based on a factor of food-costs.
    \118\ Only food costs (not record keeping) are adjusted for 
inflation.
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VI. Uncertainties/Limitations

    Many assumptions were made in this analysis of this rule's 
impacts, and the resulting uncertainties and limitations must be 
acknowledged. Some general limitations are noted first, followed by 
limitations specific to sections and then a discussion of the 
uncertainty of school meal program participation levels going 
forward. Some of these uncertainties and limitations result from 
this rule being written directly after extended use of COVID-19 meal 
pattern waivers, in which assumptions must be made about future 
participation in school meal programs, and others result from 
unknown future food and labor price trajectories.

General

    Due to the pandemic, the next edition of the School Nutrition 
Meal Cost Study (II) was delayed, thus leaving the SY 2014-2015 data 
from the first version of that study as the most recent data that 
could be used for this analysis. Product availability and costs have 
likely changed from SY 2014-2015 and will continue to change through 
the implementation date of this rule (SY 2024-2025, although 
required changes will be phased in over time). Because the 
transitional standards rule went into effect recently, it is unclear 
how well schools will adapt to the updated requirements in this 
rule. A lack of recent data on school staffing levels and impacts of 
the pandemic in all aspects of school foodservice make it 
challenging to estimate changes in staffing cost, especially as it 
affects changes in the need for scratch cooking and professional 
standards final regulations.
    USDA acknowledges that the data used to evaluate cost, although 
the most recent available data, is relatively old. One remedy has 
been to adjust for inflation from SY 2014-2015 to the years of 
implementation prescribed in this rule. However, as noted throughout 
the analysis, it is possible that

[[Page 32114]]

changes in product formulation, availability, and cost have occurred 
in the years since these data were collected. Among the more 
significant changes in this rule are the requirements to reduce 
levels of sodium and added sugars in school meals. USDA conducted 
additional analysis of these two changes in order to more fully 
account for possible cost impacts. A sensitivity analysis shows a 
range of possible cost impacts from half the estimated cost impact 
to double the cost impact of the added sugars and sodium provisions 
(table 21). It is possible that the impacts could be higher or lower 
in the future, but this sensitivity analysis shows a range in costs 
to illustrate the potential magnitude of change. If the costs of 
food with lower sodium and lower added sugars has doubled since SY 
2014-2015, then the costs of implementing this rule would be 
considerably higher. However, if the market has changed already due 
to the CACFP total sugar limits, public desire for healthier 
packaged food options, and the FDA voluntary sodium reduction goals, 
then it is possible that the cost differential has already 
decreased.
[GRAPHIC] [TIFF OMITTED] TR25AP24.116

    Another area of uncertainty is about the types of products 
available from manufacturers, especially those products that are 
created for school foodservice. Certain products will be eliminated, 
others will be reformulated, and the dimensions of such product 
changes are difficult to predict. Product lines that have been 
created specifically for schools may become more common with this 
rulemaking. School food authorities have also faced supply chain 
delays in recent years that may continue. About 92 percent of school 
food authorities reported experiencing challenges due to supply 
chain disruptions in SY 2021-2022, including product availability, 
orders arriving with missing or substituted items, and labor 
shortages.\120\ In addition, it may take longer to reformulate 
certain product lines than anticipated. Food manufacturers play an 
integral role in school food service operations and in the ability 
for school food authority menus to meet regulations, especially when 
it comes to added sugars, milk, whole grains, and sodium.
---------------------------------------------------------------------------

    \119\ Product-specific added sugars limits and weekly added 
sugars and sodium limits included in this final rule will not take 
effect until SY 2025-2026 and SY 2027-2028, respectively.
    \120\ Results of USDA's FNS-Administered SFA Survey II on Supply 
Chain Disruption and Student Participation [verbar] Food and 
Nutrition Service.
---------------------------------------------------------------------------

    For this analysis, HEI scores were used to measure the alignment 
of school menus with recommendations from the Dietary Guidelines. 
The HEI measure has a few limitations as used for this analysis. HEI 
component scores for added sugars and sodium only reflect one aspect 
of the diet, not a complete diet. HEI scores were originally 
designed to measure a full day of intake, not necessarily to 
evaluate one or two meals a day. Another limitation regarding HEI 
scores is that the calculation does not exactly align with the 
recommendations in the Dietary Guidelines but is a tool to evaluate 
nutrient density of foods consumed throughout an entire day. For 
instance, a maximum score for the sodium component is achieved if 
sodium content is <=1.1 grams of sodium per 1,000 kilocalories (HEI-
2010 and HEI-2015) and a maximum score for the added sugars 
component is achieved if added sugars are at <=6.5 percent of total 
energy (HEI-2015).\121\ The Dietary Guidelines for Americans, 2020-
2025 sodium recommendations are based on the sodium DRIs and the 
added sugar recommendations are more liberal at 10 percent when 
considering the entire population, including adults. While these are 
limitations of using the HEI score and component scores, HEI is 
still a valuable tool to evaluate meals in a standardized way that 
allows for comparison and measuring improvement over time.
---------------------------------------------------------------------------

    \121\ https://epi.grants.cancer.gov/hei/comparing.html.
---------------------------------------------------------------------------

    Decreasing sodium and added sugars menu content may 
inadvertently increase other nutrients such as fat and protein. It 
is uncertain what the effect of these changes across this final rule 
will have on average across school food authorities since there are 
so many combinations of food groups and permutations of menu 
changes. For example, a decrease in added sugars content alone could 
inadvertently increase sodium content through usage of more meat/
meat alternate products on menus. School nutrition program directors 
will have to be aware of possible tradeoffs when making menu 
changes.
    The adaptability of children's taste preferences is at the root 
of the way the final rule impacts for sodium have been measured. 
Typical benefit-cost analysis of a policy intervention of the type 
in this rulemaking often uses a willingness-to-pay (WTP) 
measure.\122\ WTP reflects underlying preferences--in this case, 
preferences for

[[Page 32115]]

food characteristics, including both health consequences and short-
term eating experience--and if preferences are unstable, then key 
inputs to the analysis are not well-defined. Indeed, shifting taste 
preferences (when they are malleable during childhood) away from 
foods with high levels of sodium is a key expected outcome of this 
final rule.
---------------------------------------------------------------------------

    \122\ Either a direct WTP estimate could be developed or a 
multistep estimation could quantify health and longevity effects 
with lost eating-experience utility subsequently being subtracted. 
For example, in the context of sugar-sweetened beverages (SSB), 
Kalamov and Runkel (2021), citing Allcott et al.'s (2019) estimates, 
suggest that internalities (representing the harm consumers of 
relatively unhealthy foods suboptimally impose on their future 
selves) could be 30- to 50-percent of gross health impacts; it is 
the 30- to 50-percent that would appropriately be retained in an 
analysis of the intrapersonal benefits of a policy that reduces 
consumption of SSB or foods with similar characteristics. Kalamov, 
Z. Y. and M. Runkel, Taxation of unhealthy food consumption and the 
intensive versus extensive margin of obesity. International Tax and 
Public Finance, 2021: p. 1-27. Allcott, H., B. B. Lockwood, and D. 
Taubinsky, Regressive sin taxes, with an application to the optimal 
soda tax. The Quarterly Journal of Economics, 2019. 134(3): p. 1557-
1626.
---------------------------------------------------------------------------

Health Benefits

    The financial impacts of changes that affect our health can be 
challenging to quantify, especially for a younger, student 
population. A 2023 study used NHANES data to evaluate the health and 
economic effects of school meal requirements consistent with the 
Dietary Guidelines for Americans, 2020-2025--namely added sugars, 
sodium, and whole grains. The study estimated that, if only 25 
percent of school children's dietary changes were maintained into 
adulthood, that would prevent 7,760 adult deaths and save $14 
billion in medical costs annually.\123\ Such estimates are model 
projections and do not prove the extent of health-related benefits 
over time. While a variety of studies have shown that habits 
developed in childhood can track into adulthood,124 125 
it is unclear what proportion of individuals hold to this trend and 
the related level of reduced chronic health conditions in adults 
consuming healthier meals during childhood and adolescence.
---------------------------------------------------------------------------

    \123\ Wang L, Cohen J, Maroney M, et al. Evaluation of health 
and economic effects of United States school meal standards 
consistent with the 2020-2025 dietary guidelines for Americans. The 
American Journal of Clinical Nutrition. 2023. DOI: https://doi.org/10.1016/j.ajcnut.2023.05.031.
    \124\ Lioret S, Campbell KJ, McNaughton SA, et al. Lifestyle 
Patterns Begin in Early Childhood, Persist and Are Socioeconomically 
Patterned, Confirming the Importance of Early Life Interventions. 
Nutrients. 2020;12(3):724. Published 2020 Mar 9. doi:10.3390/
nu12030724.
    \125\ Movassagh EZ, Baxter-Jones ADG, Kontulainen S, Whiting SJ, 
Vatanparast H. Tracking Dietary Patterns over 20 Years from 
Childhood through Adolescence into Young Adulthood: The Saskatchewan 
Pediatric Bone Mineral Accrual Study. Nutrients. 2017;9(9):990. 
Published 2017 Sep 8. doi:10.3390/nu9090990.
---------------------------------------------------------------------------

    As detailed above in the `Impacts' section, reducing intake of 
added sugars can result in reductions in T2D, CVD, and chronic 
kidney disease. Consumption of meals with low-fat dairy (including 
low-fat milk) and whole grains was associated with lower blood 
pressure and improved blood lipid levels. Throughout the lifespan, 
consumption of whole grains has been shown to reduce the risk of 
CVD, T2D, and some types of cancer. Reducing sodium intake has been 
shown to reduce blood pressure in children of all ages, and in turn 
to reduce CVD incidence.\126\
---------------------------------------------------------------------------

    \126\ More detailed explanations of health effects of the most 
impactful provisions are in the `Impacts' section above.
---------------------------------------------------------------------------

    Despite the challenges of quantifying the costs or savings 
resulting from improved health outcomes in children, there are some 
available studies that quantify these findings in adults for major 
health outcomes. For instance, annual medical costs for individuals 
with high blood pressure are up to $2,500 higher than costs for 
people without high blood pressure,127 128 resulting in a 
$79 billion total annual medical cost associated with high blood 
pressure in the U.S.\129\ From 1996 to 2016, there was an increase 
of over $100 billion in spending on adult CVD, to a total of $320 
billion spent in 2016 in the U.S., reported in 2016 dollars.\130\ 
This indicates that a reduction in CVD overall could result in 
significant savings. One model from 2017 showed ``clear and 
significant benefits for interventions that reduce consumption of 
added sugars.'' The study found that reducing added sugar 
consumption by 20 percent would mean lower annual direct medical 
costs for U.S. adults by more than $10 billion. While the study only 
modelled the population with an age over 20, it noted that including 
interventions for children, especially with T2D, would lead to 
additional benefits.\131\ A scientific statement from the American 
Heart Association noted that CVD ``is the leading cause of death in 
North Americans and generates tremendous personal and economic 
burden globally.'' \132\ The most expensive chronic condition in the 
U.S. is diabetes, with a $327 billion annual cost ($237 billion of 
which are medical costs).\133\ The cost and benefit estimates from 
these studies may be subject to a variety of limitations depending 
on study design and available data; however, these estimates help to 
provide insight into potential savings associated with consuming a 
healthy diet over the lifespan. While there is some cost associated 
with improving the dietary intake of school-aged-children through 
school meals and other child nutrition programs, the potential 
savings in adulthood through reduced medical costs and increased 
productivity could be substantial, especially when considering blood 
pressure, CVD, and diabetes.
---------------------------------------------------------------------------

    \127\ Wang G, Zhou X, Zhuo X, Zhang P. Annual total medical 
expenditures associated with hypertension by diabetes status in US 
adults. Am J Prev Med. 2017;53(6 suppl 2):S182-S189.
    \128\ Kirkland EB, Heincelman M, Bishu KG, et al. Trends in 
healthcare expenditures among US adults with hypertension: national 
estimates, 2003-2014. J Am Heart Assoc. 2018;7(11).pii: e008731.
    \129\ Dieleman JL, Cao J, Chapin A, et al. US Health Care 
Spending by Payer and Health Condition, 1996-2016. 2020;323(9):863-
884. doi:10.1001/jama.2020.0734.
    \130\ Birger M, Kaldjian AS, Roth GA, Moran AE, Dieleman JL, 
Bellows BK. Spending on Cardiovascular Disease and Cardiovascular 
Risk Factors in the United States: 1996 to 2016. Circulation. 
2021;144(4):271-282. doi:10.1161/CIRCULATIONAHA.120.053216.
    \131\ Vreman RA, Goodell AJ, Rodriguez LA, et al. Health and 
economic benefits of reducing sugar intake in the USA, including 
effects via non-alcoholic fatty liver disease: a microsimulation 
model. BMJ Open. 2017 Aug 3;7(8):e013543. doi: 10.1136/bmjopen-2016-
013543. PMID: 28775179; PMCID: PMC5577881.
    \132\ Vos MB, Kaar JL, Welsh JA, American Heart Association, et 
al. Added Sugars and Cardiovascular Disease Risk in Children: A 
Scientific Statement From the American Heart Association. 
Circulation. 2017 May 9;135(19):e1017-e1034. doi: 10.1161/
CIR.0000000000000439. Epub 2016 Aug 22. PMID: 27550974; PMCID: 
PMC5365373.
    \133\ American Diabetes Association. Economic costs of diabetes 
in the US in 2017. Diabetes Care. 2018;41:917-928.
---------------------------------------------------------------------------

Added Sugars

    For milk products, the market availability of flavored milks 
that meet the added sugars limit of <=10 mg of added sugars per 8 
fluid ounces is uncertain. While a limited search completed in 2022 
by USDA showed that some manufacturers are already producing 
flavored milks that meet the added sugars limit, the full 
availability across the nation is unclear, as is whether it will be 
a slow transition for manufacturers.\134\ It is possible that some 
school food authorities will need to serve unflavored milk varieties 
only, temporarily, if the availability of flavored milks with a 
lower level of added sugars is limited. However, a recent commitment 
from the milk industry states that, beginning in SY 2025-2026, 37 
school milk processors representing more than 90 percent of the 
school milk volume in the United States commit to provide school 
milk options with no more than 10 grams of added sugar per 8 fluid 
ounce serving. This would improve the market availability of 
flavored milks that meet the added sugars limit finalized in this 
rule in time for implementation in SY 2025-2026.\135\
---------------------------------------------------------------------------

    \134\ The search was conducted in 2022, however some product 
catalogs were older. It was found that at least four manufacturers 
had at least one flavored milk product with under 10 grams of added 
sugars per serving and in fact, three of them had products with six 
grams of added sugars per serving. A total of 10 flavored milk 
products from four companies were below the 10-gram added sugars 
limit. The catalogs used for data collection generally showed that 
there were lower sugar and higher sugar versions of flavored milk 
available.
    \135\ The Healthy School Milk Commitment--IDFA.
---------------------------------------------------------------------------

Milk

    With regards to milk, there is some uncertainty about the 
differences in price by milk type. When comparing the average price 
per eight fluid ounces of milk in SY 2009-2010 data to the average 
price in SY 2014-2015 data, both show small differences in prices by 
milk type, although those differences are not consistent between the 
two time periods. For instance, in the SY 2009-2010 data, flavored, 
low-fat milk cost $0.02 more per carton than other milk types 
(flavored, fat-free milk, unflavored, low-fat milk, and unflavored, 
fat-free milk). In the SY 2014-2015 data, however, flavored, low-fat 
milk cost $0.01 more than flavored, fat-free milk, and flavored, 
fat-free milk cost $0.01 more than unflavored, fat-free milk. More 
data regarding these cost differences are in table 22.
    USDA acknowledges the possibility that this rule and the 
transitional standards rule may cause, or have already caused, milk 
product prices to change and that school milk prices have been 
similar by fat content and flavor status in the past. A comparison 
of the potential impacts of the added sugars limits for milk using 
milk prices in the two different data collection time points (SY 
2009-2010 and SY 2014-2015) is included below.

[[Page 32116]]

[GRAPHIC] [TIFF OMITTED] TR25AP24.117

    As noted above, on average, low-fat, flavored milk cost $0.01 
more than low-fat, unflavored milk per carton (8 fluid ounces) in 
the SY 2014-2015 data, and fat-free, flavored milk cost $0.01 less 
than fat-free, unflavored milk per carton. If across all NSLP and 
SBP menus, all fat-free, flavored milk was replaced with low-fat, 
flavored milk, it would cost about $85 million more a year (using 
updated data from SY 2014-2015). Any change to low-fat, flavored 
milk from fat-free, flavored milk must be made within available 
resources and calorie and fat limits, and upon implementation, added 
sugars limits, so it is unlikely that all school food authorities 
will make this change for all flavored milk offerings. USDA 
estimates this to be about $9 million more a year in the value spent 
on milk (table 23). By using the updated milk cost data, the annual 
cost of purchasing low fat flavored milk is about 30 percent less 
than the cost using the SY 2009-2010 data, adjusted for inflation 
(table 23).
[GRAPHIC] [TIFF OMITTED] TR25AP24.118

Whole Grains

    Due to the age of the available data, it is unknown if schools 
made substantial changes in the proportion of whole grain-rich items 
served during the time from SY 2014-2015 to SY 2019-2020. In order 
to update the RIA with SY 2014-2015 data, the analysis also 
incorporated whole grain-rich based combination entr[eacute]es 
because they contribute importantly to daily intake in school meals, 
according to the SNMCS report.\136\ However, the cost of combination 
entrees also includes the cost of other food groups, so the cost 
comparison was based on a cost per grain portion of the combination 
entr[eacute]es. The values are still comparable because the same 
methodology was used for whole grain-rich items and the non-whole 
grain-rich items overall, but it is not possible to compare to the 
transitional standards rule RIA methodology which included bulk cost 
data from another source.\137\
---------------------------------------------------------------------------

    \136\ https://fns-prod.azureedge.us/sites/default/files/resource-files/SNMCS-Volume2.pdf.
    \137\ School Food Purchase Study III.
---------------------------------------------------------------------------

Sodium

    A limitation in the cost analysis of sodium is that the sodium 
limit is meant to be met by product reformulation, changing food 
menu items, and scratch cooking, so the assumptions about the cost 
distribution, 45 percent food, 45 percent labor, and 10 percent 
other, might not be accurate or complete. As a result, the costs of 
the sodium limits were not adjusted to account for additional costs 
of equipment as part of an estimate for this `Uncertainties/
Limitations' section. This is a limitation because the exact needs 
of each school food authority to equip kitchens for scratch cooking 
and menu changes are not known.
    This additional analysis provides a high and low estimate of the 
costs to schools for equipment that would allow them to reach the 
sodium limits established in this rule. About half of schools make 
under 50 percent of their recipes from scratch according to the Farm 
to School Census data.\138\ In the 2012 rule, estimates based on 
public comments regarding the sodium targets were included in the 
Uncertainties discussion to calculate potential equipment costs; 
around $5,000 per school for approximately half of schools.\139\
---------------------------------------------------------------------------

    \138\ 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.
    \139\ Federal Register: Final Rule: Nutrition Standards in the 
National School Lunch and School Breakfast Programs.
---------------------------------------------------------------------------

    Adjusting for inflation, this would be equivalent to $7,700 
beginning in SY 2025-2026 for about 50,000 schools, which was the 
basis of the equipment cost estimate used for the proposed sodium 
limits of several 10 percent reductions for breakfast and lunch. 
However, since the final sodium limit implements only one 10-15 
percent sodium reduction, we assume fewer equipment costs than the 
proposed rule. On the low end, we estimate a quarter of all schools 
will spend an average of $3,850 on equipment costs, for a total of 
about $100 million. As an upper bound, we assume schools may need 
more equipment to adapt to the reduced sodium limits, spending an 
average of $7,700 spread over the two school years prior to the SY 
2027-2028 implementation year. This would be equivalent to about 
$200 million across two school years (SY 2025-2026 and SY 2026-
2027). These estimates, adjusted for inflation, are shown below in 
table 24 with the low end estimate accounting for $30 million in 
equipment grants that are available annually. The actual costs for 
equipment may be higher as the exact needs of schools for equipment 
and remodeling to increase scratch cooking are unknown. Examples of 
equipment needed by schools to improve the appearance, safety, and 
healthfulness of food include ovens, skillets, broilers, 
refrigerators or freezers, serving equipment, steam equipment, and 
food preparation equipment.\140\ It is also possible that schools 
may sustain higher costs as a result of purchasing more pre-made 
meals and foods through food service companies if they do not have 
the necessary equipment to lower sodium content through scratch 
cooking or menu reformulation.
---------------------------------------------------------------------------

    \140\ U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, Child Nutrition Program 
Operations Study (CN-OPS-II): SY 2015-16 by Jim Murdoch and 
Charlotte Cabili. Project Officer: Holly Figueroa. Alexandria, VA: 
December 2019.

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[[Page 32117]]

[GRAPHIC] [TIFF OMITTED] TR25AP24.119

Participation Impacts

    As noted earlier, in the Key Assumptions section, participation 
costs associated with this rule are based on a level of service in 
school lunch and breakfast programs that mirrors the 2023 level of 
service. There are multiple contributing factors that may lead to an 
increased or decreased level of school meal participation in these 
years after the pandemic. Due to the uncertainty of the direction of 
student participation, a variety of possibilities are detailed here 
and the change in cost is simulated below (table 25). Nearly three-
quarters of school food service directors reported that gaining 
student acceptance of the meal pattern standards, particularly whole 
grains, was moderately to extremely challenging with respect to 
maintaining student participation.\143\ If there is a similar 
downward trend in student participation as a result of sodium and 
added sugar standards, there would be a corresponding reduction in 
food costs and potentially a reduction in labor hours. USDA is not 
aware of any evidence to support that there is a correlation between 
updates to school meal patterns and student participation, however. 
If student participation increases, there would be an expected 
increase in food and labor costs, but potentially a reduction of 
cost due to economies of scale as the operation scale increases. 
Relatedly, more states and schools are offering Healthy School Meals 
for All due to the realized benefits of free school meals during the 
COVID pandemic. [This could be through State initiatives \144\ or 
increased use of Community Eligibility Provision (CEP).] Research 
has shown that schools offering all meals at no charge through CEP 
experience higher student participation levels and increases in 
Federal revenues.\145\ These revenue increases may offset (from the 
local perspective, though not from the nationwide perspective) some 
of the estimated costs associated with this rule.
---------------------------------------------------------------------------

    \141\ Changes to sodium limits as a result of this final rule 
will not take effect until SY 2027-2028.
    \142\ Includes the $30 million offset of annually available 
equipment grants.
    \143\ U.S. Department of Agriculture, Food and Nutrition 
Service, Office of Policy Support, Child Nutrition Program 
Operations Study (CN-OPS-II): SY 2017-18. Beyler, Nick, Jim Murdoch, 
and Charlotte Cabili. Project Officer: Holly Figueroa. Alexandria, 
VA: November 2022. https://fns-prod.azureedge.us/sites/default/files/resource-files/CNOPS-II-SY2017-18.pdf.
    \144\ https://www.cde.ca.gov/ls/nu/sn/cauniversalmeals.asp.
    \145\ https://fns-prod.azureedge.us/sites/default/files/resource-files/CEPSY2016-2017.pdf.
[GRAPHIC] [TIFF OMITTED] TR25AP24.120

    Improving meal pattern requirements may have corresponding 
impacts on student participation. After publication of the updated 
meal patterns in the 2012 final rule, which were implemented in SY 
2012-2013 and beyond, there were variable changes to school meal 
program participation. Total breakfasts served increased steadily 
between fiscal year 2012 and fiscal year 2016. School lunches served 
decreased by approximately three percent between fiscal year 2012 
and fiscal year 2016. However, similar breakfast and lunch trends 
existed prior to fiscal year 2012 \146\ and the exact relationship 
between the new meal patterns and participation changes is unclear 
based on these data.
---------------------------------------------------------------------------

    \146\ USDA--Food and Nutrition Service, National Data Bank--
Publicly available data.
---------------------------------------------------------------------------

    Other factors unrelated to meal pattern requirements may also 
impact student participation. In 2014, a sample of principals and 
foodservice managers in elementary schools indicated that 70 percent 
of students ``generally seem to like the new school lunch'' and 78 
percent said participation in school lunch was the same or more than 
the previous year.\147\ However, about 25 percent of those surveyed 
still disagreed that students seemed to like lunches offered under 
the new requirements. CEP became available to all school districts 
nationwide in SY 2014-2015, and rates of SBP and NSLP participation 
increased in SY 2016-2017 in school districts that had implemented 
CEP.\148\ As participation in CEP continues to expand it is possible 
there may be some offset of any downward trend in school lunch 
participation though USDA has no evidence to support that this is 
likely to occur. While student participation may be variable 
following implementation of this rule, it is known that students who 
participate in the school meal programs consume more whole grains, 
fruits, vegetables, and milk than non-participants, leading to a 
better quality of daily diet overall.\149\
---------------------------------------------------------------------------

    \147\ Turner, Lindsey, and Frank Chaloupka (2014). ``Perceived 
Reactions of Elementary School Students to Changes in School Lunches 
after Implementation of the United States Department of 
Agriculture's New Meals Standards: Minimal Backlash, but Rural and 
Socioeconomic Disparities Exist,'' Childhood Obesity 10(4):1-8.
    \148\ https://fns-prod.azureedge.us/sites/default/files/resource-files/CEPSY2016-2017.pdf.
    \149\ ox MK, Gearan E, Cabili C, et al. School Nutrition and 
Meal Cost Study, Final Report Volume 4: Student Participation, 
Satisfaction, Plate Waste, and Dietary Intakes. U.S. Department of 
Agriculture, Food and Nutrition Service, Office of Policy Support; 
2019. https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
---------------------------------------------------------------------------

    It is assumed that levels of SBP and NSLP participation will 
continue to increase to pre-pandemic rates, but it is difficult to 
know how long the supply chain disruptions and

[[Page 32118]]

staffing challenges will continue. A variety of Executive orders and 
plans within the Federal Government have been employed to track and 
address supply chain disruptions, as well as a task force with a 
focus on supply chain issues.\150\ The U.S. Department of 
Transportation reported improvements in supply chain disruption in 
early 2022, but there are still existing stressors in the U.S. 
supply chain.151 152 Unemployment levels have returned to 
pre-pandemic rates as of mid-2022, and gains are continuing in the 
hospitality sector, so it is likely staffing challenges in school 
food service will continue to improve.\153\ These disruptions in 
service have created additional burden for school food authorities 
and it is possible this burden may hold on for a few years, 
potentially affecting student participation in school meal programs. 
USDA recognizes that schools may have been offering meals that were 
higher in sodium under the COVID-19 meal pattern waivers. The sodium 
limits finalized in this rule, which align with Sodium Target 2 from 
the 2012 final rule, will be gradually implemented. This gradual 
approach, which requires implementation in SY 2027-2028, is expected 
to ease implementation for schools as they adjust to the new limits. 
There is potential for a decrease in participation if students find 
meals less desirable because of lower added sugars and sodium 
levels, though USDA has no evidence to support that this has 
occurred during prior meal pattern updates. However, research 
indicates that a 10 percent sodium reduction in individual food 
products does not substantially impact consumer approval.\154\ If 
there is a five percent decrease in participation of school meal 
programs, then the readily quantifiable annual cost of this rule 
would be $195 million, or $1.6 billion over the eight years (table 
25).\155\ Other possible levels of decrease in participation are 
also provided.
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    \150\ https://crsreports.congress.gov/product/pdf/IN/IN11927.
    \151\ https://www.transportation.gov/briefing-room/usdot-supply-chain-tracker-shows-progress-supply-chains-remain-stressed.
    \152\ Results of USDA's Food and Nutrition Service-Administered 
School Food Authority Survey II on Supply Chain Disruption and 
Student Participation (azureedge.us).
    \153\ https://www.bls.gov/news.release/pdf/empsit.pdf.
    \154\ Cobb LK, Appel LJ, Anderson CA. Strategies to reduce 
dietary sodium intake. Curr Treat Options Cardiovasc Med. 
2012;14(4):425-434. doi:10.1007/s11936-012-0182-9.
    \155\ If the decrease in participation is caused by provisions 
of this final rulemaking, then there would be other effects--for 
example, incremental health consequences of revised eating patterns, 
or the transition cost to parents and guardians as they make other 
eating arrangements for their children--that would also be 
attributable to the rule. By contrast, if participation decreases 
due to unrelated trends, then the quantified cost estimates would be 
as reported here but the (unquantified) accompanying effects would 
not be attributable to this final rule.
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    Many students who had never participated in the NSLP and SBP 
prior to the pandemic but who did participate under USDA's COVID-19 
nationwide waivers may have found a level of convenience associated 
with participating in the school meals programs instead of eating 
breakfast at home or bringing a lunch from home. Parents and 
guardians may also find that school meals with reduced sodium and 
added sugars are a healthier option than meals that were available 
at school previously. If there is a five percent increase in 
participation of school meal programs, then the quantified annual 
cost of this rule would be $216 million, or $1.7 billion over the 
eight years (table 25).\156\ Costs associated with other possible 
levels of potential increase in participation are provided. It is 
possible that an increase in revenue resulting from greater 
participation in school meal programs would offset some of the costs 
that occur from implementation of this rule.
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    \156\ If the increase in participation is caused by provisions 
of the final rule, then there would be other effects--for example, 
incremental health consequences of revised eating patterns--that 
would also be attributable to the provision. By contrast, if 
participation increases due to unrelated trends, then the quantified 
cost estimates would be as reported here but the unquantified 
accompanying effects would not be attributable to the final rule.
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VII. Benefits of the Rule and Other Discussion

Health Benefits

    The goal of this rule is to more closely align school meals with 
the goals of the Dietary Guidelines for Americans, 2020-2025. The 
Dietary Guidelines are meant to promote health, prevent and reduce 
risk of chronic disease, and meet nutrient needs.\157\ School meals 
are an important source of nutrition for school age children. 
Pandemic disruption to school operations demonstrated the continued 
importance of child nutrition programs including the NSLP and SBP.
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    \157\ 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.
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    Making the changes outlined in this rule can lead to improved 
health outcomes in the long-term. Lifestyle habits including dietary 
habits are established in childhood and research has shown that they 
may carry through into adulthood.158 159 The two most 
impactful changes in this rule are reductions in added sugars and 
sodium content of school meals. Reducing sodium and added sugars 
intake is associated with a variety of potential health benefits 
that are detailed above in the sodium and added sugars `Impacts' 
sections. Reduction in sodium intake reduces blood pressure which in 
turn can reduce CVD risk and CVD events. Added sugars consumption is 
associated with a variety of potential chronic health conditions, 
including CVD and T2D, and risk factors for these chronic diseases. 
While this rule maintains the existing whole grain-rich requirements 
for school meals, it is of note that increased whole grain 
consumption is associated with an improved overall dietary 
pattern.\160\ 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.\161\ Recent research evaluating 
the health benefits of aligning the school meal nutrition 
requirements with the Dietary Guidelines for Americans, 2020-2025 
found an association of 7,760 fewer annual deaths due to CVD and 
cancer and save $13.8 billion in healthcare-related costs annually 
if 25 percent of school children's dietary changes were sustained 
into adulthood.\162\ Systematic review evidence also exists that 
shows intake in children of healthier dietary patterns including 
``higher intakes of vegetables, fruits, whole grains, fish, low-fat 
dairy, legumes, and lower intake of sugar-sweetened beverages, other 
sweets, and processed meat,'' are associated with lower blood 
pressure and improved blood lipid levels later in 
life.163 164 These dietary patterns associated with 
improved health outcomes have higher intake of whole grains and 
lower intake of both foods high in sodium and high in added sugars. 
Improvements in school meals finalized in this rule, with a focus on 
sodium and added sugars reduction, will lead to healthier dietary 
intake and improved health outcomes over time.
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    \158\ Grummer-Strawn LM, Li R, Perrine CG, Scanlon KS, Fein SB. 
Infant feeding and long-term outcomes: results from the year 6 
follow-up of children in the Infant Feeding Practices Study II. 
Pediatrics. 2014;134 Suppl 1(Suppl 1):S1-S3. doi:10.1542/peds.2014-
0646B.
    \159\ Lioret S, Campbell KJ, McNaughton SA, et al. Lifestyle 
Patterns Begin in Early Childhood, Persist and Are Socioeconomically 
Patterned, Confirming the Importance of Early Life Interventions. 
Nutrients. 2020;12(3):724. Published 2020 Mar 9. doi:10.3390/
nu12030724.
    \160\ Albertson AM, Reicks M, Joshi N, Gugger CK. Whole grain 
consumption trends and associations with body weight measures in the 
United States: results from the cross sectional National Health and 
Nutrition Examination Survey 2001-2012. Nutr J. 2016;15:8. Published 
2016 Jan 22. doi:10.1186/s12937-016-0126-4.
    \161\ 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.
    \162\ Wang L, Cohen J, Maroney M, et al. Evaluation of health 
and economic effects of United States school meal standards 
consistent with the 2020-2025 dietary guidelines for Americans. The 
American Journal of Clinical Nutrition. 2023. DOI: https://doi.org/10.1016/j.ajcnut.2023.05.031.
    \163\ 2020 Dietary Guidelines Advisory Committee and Nutrition 
Evidence Systematic Review Team. Dietary Patterns and Risk of 
Cardiovascular Disease: A Systematic Review. 2020 Dietary Guidelines 
Advisory Committee Project. Alexandria, VA: U.S. Department of 
Agriculture, Food and Nutrition Service, Center for Nutrition Policy 
and Promotion, July 2020. Available at: https://nesr.usda.gov/2020-dietary-guidelines-advisory-committee-systematic-reviews.
    \164\ 2020 Dietary Guidelines Advisory Committee and Nutrition 
Evidence Systematic Review Team. Dietary Patterns and Growth, Size, 
Body Composition, and/or Risk of Overweight or Obesity: A Systematic 
Review. 2020 Dietary Guidelines Advisory Committee Project. 
Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition 
Service, Center for Nutrition Policy and Promotion, July 2020. 
Available at: https://nesr.usda.gov/2020-dietary-guidelines-advisory-committee-systematic-reviews.
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    This rule also includes sections on traditional Indigenous foods 
that may have

[[Page 32119]]

some potential health benefits for American Indian and Alaska Native 
children. USDA acknowledges that for decades, the United States 
government actively sought to eliminate traditional American Indian 
and Alaska Native ways of life--for example, by forcing Indigenous 
families to send their children to boarding schools. This separated 
Indigenous children from their families and heritage, and disrupted 
access to traditional foods, altering Indigenous children's 
relationship to food. This disruption effected food access, food 
choice, and overall health. The Traditional Foods Project (TFP) and 
associated research have shown that there may be benefits to 
integrating culture and history through locally designed 
interventions framed by food sovereignty among American Indian and 
Alaska Native communities to help prevent chronic disease, 
especially type 2 diabetes.165 166
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    \165\ DeBruyn L, Fullerton L, Satterfield D, Frank M. 
Integrating Culture and History to Promote Health and Help Prevent 
Type 2 Diabetes in American Indian/Alaska Native Communities: 
Traditional Foods Have Become a Way to Talk About Health. Prev 
Chronic Dis 2020;17:190213. DOI: http://dx.doi.org/10.5888/pcd17.190213external icon.
    \166\ Satterfield D, DeBruyn L, Santos M, Alonso L, Frank M. 
Health promotion and diabetes prevention in American Indian and 
Alaska Native communities--Traditional Foods Project, 2008-2014. CDC 
Morbidity Mortality Weekly Report. 2016;65(S1):4-10. https://www.cdc.gov/mmwr/volumes/65/su/su6501a3.htm.
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Food and Nutrition Security

    Prior to and during the pandemic, school meals played an 
important role in serving healthy meals to millions of children and 
increasing food security by serving free or reduced price meals to 
eligible students. Food and nutrition security is defined as 
``consistent and equitable access to healthy, safe, affordable foods 
essential to optimal health and well-being'' by the USDA.\167\ In 
2020, about fifteen percent of households with children were food 
insecure compared to about fourteen percent in 2019.\168\ This means 
that millions of children are affected by food insecurity in the 
U.S. Free and reduced-price meals in the SBP and NSLP are served to 
students from households with lower income levels. In 2023, about 80 
percent of meals served in the SBP and about 71 percent of meals 
served in the NSLP were free or reduced-price meals.\169\ This rule 
targets the diet quality of meals served through child nutrition 
programs, and we estimate this rule to benefit the health of program 
participants. Providing nutrient-dense meals and snacks is 
especially valuable for children that may not always have access to 
nutritious foods at home. In 2021, USDA found that around 55 percent 
of food-insecure households participated in one or more of three 
Federal food and nutrition assistance programs (SNAP, WIC, 
NSLP).\170\ This same report indicated that in households with 
income below 185 percent of the poverty line, those that received 
free or reduced-price school lunch in the previous 30 days (in 2021) 
were less likely to be food insecure compared to those that did not 
receive free or reduced-price lunch, indicating that school meals 
are an important source of food for families facing hardships. 
Student participation in the NSLP has been found in other research 
to be associated with a reduction in food insecurity.\171\ 
Households with incomes near or below the Federal poverty line, all 
households with children and particularly households with children 
headed by single women or single men, and Black- and Hispanic-headed 
households have higher rates of food insecurity than the national 
average.\159\ Efforts to increase participation in child nutrition 
programs should focus on expanding and encouraging participation 
among children in households under these circumstances to promote 
equity in daily nutrient intake nationwide.\172\ School meal 
programs reach children across the U.S. from households of all 
income levels and of various backgrounds and race/ethnicities with 
nutritious meals. As noted previously, the incremental effect of the 
rule on program participation is uncertain as regards both magnitude 
and direction; the impact on food security is likewise uncertain.
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    \167\ https://www.usda.gov/nutrition-
security#:~:text=At%20a%20minimum%2C%20food%20security,%2C%20or%20oth
er%20coping%20strategies).
    \168\ https://www.ers.usda.gov/amber-waves/2022/february/food-insecurity-for-households-with-children-rose-in-2020-disrupting-decade-long-decline/.
    \169\ USDA--Food and Nutrition Service, National Data Bank--
Publicly available data.
    \170\ Matthew P. Rabbitt, Laura J. Hales, Michael P. Burke, and 
Alisha Coleman-Jensen, October 2023. Household Food Security in the 
United States in 2022, ERR-325, U.S. Department of Agriculture, 
Economic Research Service.
    \171\ Ralston, K.; Treen, K.; Coleman-Jensen, A.; Guthrie, J. 
Children's Food Security and USDA Child Nutrition Programs; U.S. 
Department of Agriculture, Economic Research Service: Washington, 
DC, USA, 2017.
    \172\ 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.
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Achievable Limits

    While some elements of the 2012 rule were challenging to meet 
over a long period of time, this rule prescribes smaller gradual 
shifts and targeted changes to improve the overall nutrient content 
of meals. This rule will require changes over time, at achievable 
levels for schools and manufacturers. For instance, reduction in 
sodium finalized in this rule is about 15 percent at lunch and about 
10 percent at breakfast, which is more manageable than the previous 
final targets in the 2012 rule. The FDA's voluntary sodium reduction 
goals were introduced in October 2021, so manufacturers may already 
be making changes to their products. Additional reduction goals are 
expected in the coming years. School food authorities and 
manufacturers have indicated in the past that the sodium targets 
from the 2012 rule (especially Target 3) were challenging to achieve 
due to several contributing factors. These challenges included high 
labor and equipment costs needed to support food preparation, lack 
of lower sodium products associated with school food authority 
urbanicity and size, and low levels of student acceptance varying by 
cultural and regional taste preferences.\173\ This rule addresses 
these concerns by implementing a single sodium reduction that is 
supported by FDA voluntary sodium goals for industry and the 2019 
dietary reference intakes \174\ that call for continued reduction in 
sodium intake to promote health.
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    \173\ 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.
    \174\ https://nap.nationalacademies.org/catalog/25353/dietary-reference-intakes-for-sodium-and-potassium.
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    USDA data collection in 2022 \175\ showed that reductions in 
total and added sugars content of certain food types (yogurt, milk, 
cereal) have already been observed, on average, since the last data 
collection during SY 2014-2015. This indicates that manufacturers 
are willing to make shifts in their product formulations and that 
regulations for programs such as CACFP do help to jumpstart product 
shifts. Another aspect of this rule is that USDA finalizing added 
sugar limits, rather than total sugars limits. Limiting added sugars 
will not limit naturally occurring sugars from fruit or milk, which 
will allow many yogurt products containing fruit and cereals 
containing dried fruit to remain a part of school meals. This less 
restrictive group of limits for added sugars is more achievable for 
school food authorities compared to total sugar limits and reflects 
Dietary Guidelines recommendations.
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    \175\ USDA Food and Nutrition Service, Office of Policy Support 
data collection of nutrition label information from major cereal and 
yogurt manufacturer K-12 and food service catalogs.
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    The changes from this rule will occur gradually over time. The 
sodium reduction included in this final rule will not occur until SY 
2027-2028--over three years after this rule is published. Schools 
will maintain current sodium limits prior to the SY 2027-2028 
reduction. This gradual approach will provide adequate lead in time, 
allowing school food authorities and manufacturers time to make 
changes to menus and available food products. Reduction of added 
sugars in school meals will also occur gradually, beginning with 
product specific limits, followed by an overall weekly limit. This 
approach will also allow time for adjustment both by food service 
operators and food/beverage manufacturers. Gradual formulation 
changes are also recommended for consumer satisfaction and product 
desirability.176 177 Taste preference may be established 
early in life and early food preference can influence

[[Page 32120]]

later food choices, so a gradual change may influence school age 
children for years to come. Along with gradual change, the added 
sugars weekly limit and the sodium reduction will be introduced the 
same year, allowing for menus to be changed simultaneously, avoiding 
the inconvenience of making substantial changes multiple times. This 
rule ensures that there will be a high nutrition quality of school 
meals with continued improvements over time.
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    \176\ Hoppu U, Hopia A, Pohjanheimo T, et al. Effect of Salt 
Reduction on Consumer Acceptance and Sensory Quality of Food. Foods. 
2017;6(12):103. Published 2017 Nov 27. doi:10.3390/foods6120103.
    \177\ Institute of Medicine (US) Committee on Strategies to 
Reduce Sodium Intake; Henney JE, Taylor CL, Boon CS, editors. 
Strategies to Reduce Sodium Intake in the United States. Washington 
(DC): National Academies Press (US); 2010. Available from: https://www.ncbi.nlm.nih.gov/books/NBK50956/ doi: 10.17226/12818.
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VIII. Alternative(s)

Sodium

    As a result of comments and feedback from stakeholders on the 
proposed sodium limits, this final rule implements more gradual and 
attainable sodium reduction compared to the proposed rule. USDA 
proposed to phase in three 10 percent sodium reductions at lunch and 
two 10 percent sodium reductions at breakfast beginning in SY 2025-
2026. The estimated annual costs of the proposed sodium limits 
assumed a higher increase in labor and scratch cooking compared to 
the final rule due to the proposed multiple reductions. The 
estimated annual food and labor costs of the proposed changes 
averaged $102 million annually, compared to $68 million annual 
average for the final rule sodium provisions. The equipment costs 
associated with an increase in scratch cooking assumed at least 
half, or 50,000, of schools would spend between $7,350 to $14,700 
each leading up to the proposed implementation years. The range of 
equipment costs for the proposed rule was $324 million to $792 
million total, compared to the final rule equipment costs of $70 
million to $200 million total.

Added Sugars: Grain-Based Desserts

    The final rule does not adopt the proposal to limit grain-based 
desserts to 2 ounce equivalents per week in school breakfasts. The 
change from the proposed rule is to avoid potential negative impacts 
on breakfast programs, especially grab-and-go breakfasts. The 
proposed grain-based dessert limit for school breakfast had an 
estimated cost savings of $23 million annually, because the average 
cost of grains other than grain-based desserts is estimated to be 
$0.22 less than the average cost of grain-based desserts. The final 
added sugar product limits annual cost is $107 million annually, an 
increase from $84 million, after removing cost estimates associated 
with the proposed limit for grain-based desserts at school 
breakfast.

Buy American

    The final rule maintains reaching a 5 percent cap on total costs 
per school year on non-domestic food purchases, consistent with the 
proposed rule. However, the proposed rule would have implemented a 5 
percent cap as soon as the provision was effective. The final rule 
takes an incremental approach and considers procurement for SBP in 
addition to NSLP. USDA made this change in the rule in response to 
public comments that suggested a 5 percent cap is too restrictive 
under current procurement conditions. The cost analysis assumptions 
were the same in the proposed rule, but the estimated costs were due 
to a shorter implementation period and the associated burden hours 
with meeting the cap in the next school year for NSLP. While the 
final rule incorporates a more gradual timeline, burden estimates 
were calculated for both SBP and NSLP ($7 million annually for both 
the proposed rule and the final rule).

Whole Grains

    The final rule maintains the current whole grain-rich 
requirements, however, the proposed rule requested comments on an 
alternative proposal for the whole grain-rich requirement for final 
rule consideration. Under the proposed alternative, all grains 
offered in the school lunch and breakfast programs would be required 
to be whole grain-rich, except that one day each school week, 
schools may offer grains that are not whole grain-rich. On average, 
a similar number of servings of whole grains would be provided in 
the alternative proposal, just on different days than before, 
leading to no additional expected costs. In response to comments, 
the final rule maintains the existing whole grain-rich requirement.

Other Considered Alternatives

    In the process of creating this rule, there were a few other 
potential alternatives considered for added sugars and whole grains. 
Initially, product-specific total sugar limits were considered to 
align with the current CACFP total sugar limits for breakfast 
cereals and yogurts. However, this meant restricting naturally 
occurring sugars and did not align with the Dietary Guidelines for 
Americans \178\ which recommend limiting added sugars to 10 percent 
of calories per day. The product-specific added sugars limits for 
yogurt, breakfast cereal, and flavored milk are expected to help 
introduce the concept of limiting added sugars, specifically as part 
of the gradual goal of reaching the final 10 percent weekly limit. 
For whole grains, other percentages were considered for the 
proportions of grains to be served that must be whole grain-rich 
(i.e., 50 or 100 percent). However, 80 percent was decided on as a 
measure that allows for flexibility, but also still requiring that 
the majority of grains offered in school meals are whole grain-rich.
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    \178\ 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.
    \179\ Due to rounding, numbers may not add up to rounded sum in 
`total' column exactly.
    \180\ This data is the same as in table 1, but broken down by 
school years instead of fiscal years.
    \181\ Annual average over 8 school years of rule implementation.
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IX. Appendix
[GRAPHIC] [TIFF OMITTED] TR25AP24.121

[FR Doc. 2024-08098 Filed 4-24-24; 8:45 am]
BILLING CODE 3410-30-P