Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements
Federal Register, Volume 83 Issue 238 (Wednesday, December 12, 2018)
Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)
Rules and Regulations
Pages 63775-63794
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2018-26762
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 215, 220, and 226
FNS-2017-0021
RIN 0584-AE53
Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Final rule.
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SUMMARY: This final rule will codify, with some extensions, three menu planning flexibilities temporarily established by the interim final rule of the same title published November 30, 2017. First, it will broaden the milk options in the National School Lunch Program and School Breakfast Program by allowing local operators to permanently offer flavored, low-fat milk. For consistency across nutrition programs, it will also allow flavored, low-fat milk in the Special Milk Program for Children and in the Child
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and Adult Care Food Program for participants ages 6 and older. Second, this final rule will require that half of the weekly grains in the school lunch and breakfast menu be whole grain-rich, thus ending the need for the exemption process. Third, it will provide schools in the lunch and breakfast programs more time for gradual sodium reduction by retaining Sodium Target 1 through the end of school year (SY) 2023-
2024, continuing to Target 2 in SY 2024-2025, and eliminating the Final Target that would have gone into effect in SY 2022-2023. By codifying these changes, USDA acknowledges the persistent menu planning challenges experienced by some schools, and affirms its commitment to give schools more control over food service decisions and greater ability to offer wholesome and appealing meals that reflect local preferences.
DATES: This rule is effective February 11, 2019.
FOR FURTHER INFORMATION CONTACT: Tina Namian, Chief, School Programs Branch, Policy and Program Development Division, Food and Nutrition Service, telephone: 703-305-2590.
SUPPLEMENTARY INFORMATION:
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Background
This final rule will increase flexibility in the Child Nutrition Program requirements related to milk, grains, and sodium effective SY 2019-2020, which begins July 1, 2019. This rule is the culmination of the rulemaking process initiated by the Department of Agriculture (USDA) following the Secretary's May 1, 2017, Proclamation affirming USDA's commitment to assist schools in overcoming operational challenges related to the school meals regulations implemented in 2012.
In 2012, USDA updated the National School Lunch (NSLP) and School Breakfast Program (SBP) meal requirements to reflect the latest Dietary Guidelines for Americans, as required by the Richard B. Russell National School Lunch Act in Section 9(a)(4), 42 U.S.C. 1758(a)(4). The implementing regulations \1\ increased the availability of fruits, vegetables, whole grains, and fat-free and low-fat milk in school meals; required sodium and saturated fat limits, and zero trans-fat in the weekly school menu; and established calorie ranges intended to meet part of the age-appropriate calorie needs of children. The updated requirements were largely based on recommendations issued by the Health and Medicine Division of The National Academies of Sciences, Engineering, and Medicine (formerly, the Institute of Medicine).
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\1\ Final rule Nutrition Standards in the National School Lunch and School Breakfast Programs (77 FR 4088, January 26, 2012).
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With regard to the milk, grains, and sodium requirements, the regulations implemented in 2012:
Allowed flavoring only in fat-free milk in the NSLP and SBP;
Required that half of the grains offered in the NSLP be whole grain-rich in SY 2012-2013 and one year later in the SBP; and required that effective SY 2014-2015, all grains offered in both programs be whole grain-rich (meaning the grain product contains at least 50 percent whole grains and the remaining grain content of the product must be enriched); and
Required schools participating in the NSLP and SBP to gradually reduce the sodium content of meals offered on average over the school week by meeting progressively lower sodium targets over a 10-year period.
Before and after the regulations were implemented in 2012, USDA offered guidance, technical assistance resources, and tailored training programs for Program operators in collaboration with the Institute for Child Nutrition (formerly, National Food Service Management Institute). Program advocates, the food industry, and other stakeholders also collaborated with USDA in different ways to assist operators with implementation. This enabled many operators to adopt most of the changes to the NSLP and SBP meal patterns. Child nutrition and public health advocates who submitted public comments noted that children's eating habits are improving and student participation in the school meal programs is increasing in many school districts. USDA acknowledges the significant efforts and progress these schools have achieved. However, the changes are only truly successful when all of America's school children eat and enjoy the school meals.
While some Program operators have had great success in implementing the updated nutrition standards in a way that encourages healthy eating and participation, some school meal programs require additional flexibility and support from USDA to meet this goal. USDA continues to hear from Program operators about persistent challenges with the milk, grains, and sodium requirements. The challenges identified by operators include decreased student participation and/or meal consumption, difficulties preparing whole grain-rich food items, and limited ability to offer appealing meals with lower sodium content.
The Secretary of Agriculture acknowledged these challenges in the May 1, 2017, Proclamation and committed to working with stakeholders to ensure that the milk, grains, and sodium requirements are practical and result in wholesome and appealing meals. Subsequently, and consistent with the Consolidated Appropriations Act, 2017 (Pub. L. 115-31), USDA issued policy guidance (SP 32-2017, May 22, 2017, School Meal Flexibilities for School Year 2017-2018) providing milk, whole grains, and sodium flexibilities for SY 2017-2018 while taking steps to formulate regulatory relief in these areas. USDA's policy guidance was followed by the interim final rule Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements (82 FR 56703, November 30, 2017), which established regulations that extend school meal flexibilities through SY 2018-2019 and apply the flavored milk flexibility to the Special Milk Program for Children (SMP) and the Child and Adult Care Food Program (CACFP) for participants age 6 and older in SY 2018-2019 only. As a result, the regulations applicable in SY 2018-2019 provide relief in three specific areas while retaining other essential meal requirements (e.g., fruit and vegetable quantities, fat restrictions, and calorie ranges) that contribute to wholesome meals. In brief, for SY 2018-2019, the regulations:
Provide NSLP and SBP operators the option to offer flavored low-fat (1 percent fat) milk with the meal and as a beverage for sale during the school day, and apply the flexibility in the SMP and CACFP for participants age 6 and older;
Extend the State agencies' option to allow individual school food authorities to include grains that are not whole grain-rich in the weekly NSLP and SBP menus; and
Retain Sodium Target 1 in the NSLP and SBP.
As discussed in the interim final rule preamble (82 FR 56703, November 30, 2017), there have been numerous administrative and legislative actions over the last few years to provide flexibility to schools with regard to the whole grain-rich and sodium requirements.\2\ The interim final rule extended the flexibilities already allowed through policy guidance (SP 32-2017, May 22, 2017, School Meal Flexibilities for School Year 2017-2018) and previous appropriations legislation
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(Pub. L. 112-55, Pub. L. 113-235, Pub. L. 114-113, Pub. L. 115-31, and Pub. L. 115-56). In addition, the interim final rule allowed milk flexibility, without the need to demonstrate hardship, in all Child Nutrition Programs. Furthermore, the rule asked the public to submit comments on the long-term availability of the three meal flexibilities.
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\2\ See discussion in the interim final rule Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements (82 FR 56703, November 30, 2017).
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As a key part of USDA's regulatory reform agenda, this final rule seeks to ensure that school meals regulations work for all operators, while reflecting the recommendations of the Dietary Guidelines for Americans, as Section 9(a)(4), 42 U.S.C. 1758(a)(4) requires. All participating children will continue to have access to fruit, an array of vegetables, whole grains, and fat-free and low-fat milk, and school meals will continue to provide appropriate calorie ranges, limited saturated fat, and no added trans-fat. The targeted modifications in this final rule, effective July 1, 2019 (SY 2019-2020), apply only to the milk, whole grain-rich, and sodium requirements. This rule demonstrates USDA's commitment to alleviate regulatory burdens, provides school nutrition professionals the flexibility and predictability they repeatedly request to successfully operate the Child Nutrition Programs, and ensures that Program regulations are practical for all local providers. This rule will help Program operators provide wholesome and appealing meals that reflect the Dietary Guidelines and meet the needs and preferences of their communities. It is important to note that schools are not required to change their menus and can choose whether or not to use the flexibilities this rule provides.
The public comments that helped inform this final rule are discussed next.
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Overview of Public Comments and USDA Response
USDA appreciates the significant public interest in the interim final rule Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements (82 FR 56703, November 30, 2017). During the 60-day comment period (November 30, 2017--January 29, 2018), USDA received a total of 86,247 comments, including 53 non-germane comments and 3 duplicates. All comments, except the non-germane and duplicate comments, are posted online at www.regulations.gov. See docket FNS-2017-0021, Child Nutrition: Flexibilities for Milk, Whole Grains, and Sodium Requirements.
USDA worked in collaboration with a data analysis company to code and analyze the public comments using a commercial web-based software product and obtained data showing support for or opposition to each meal flexibility. The Summary of Public Comments report is available under the Supporting Documentation tab in docket FNS-2017-0021.
The vast majority of the total public submissions were form letters. There were 16 form letter campaigns, which comprised 84,453 form letter copies. These comments were submitted by individuals participating in letter campaigns organized primarily by MomsRising, the American Heart Association Sodium Reduction Initiative, Salud America!, and the Union of Concerned Scientists. These form letters were mostly from parents and other individuals urging USDA to retain strong nutrition requirements for school meals.
In addition to the form letter copies, there were 1,738 unique submissions that provided substantive comments on issues specific to the three menu planning flexibilities and were therefore very useful in informing the development of this final rule. These unique comments, which included the master letter for each of the form letter campaigns, reflected a wide range of opinions--support, opposition, and mixed comments on each of the flexibilities. These comments were submitted by individuals, school district personnel, students, healthcare professionals, parents/guardians, dietitians/nutritionists, policy advocacy organizations, professional associations, State agency directors, trade/industry associations, nutrition/anti-hunger advocates, school nutrition advocacy organizations, academics/
researchers, and the food industry. For example, stakeholders that submitted unique comments include: the School Nutrition Association, State agencies, School Superintendents Association, Council of Great City Schools, American Public Health Association, American Heart Association, Center for Science in the Public Interest, MomsRising, Robert Wood Johnson Foundation, Pew Charitable Trusts, Food Research & Action Center, American Commodity Distribution Association, Grocery Manufacturers Association, General Mills, and Mars, Incorporated.
The following tables show tallies of the total and unique comments received for each of the meal flexibilities addressed in the interim final rule:
Milk Flexibility
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Percent of all Percent of unique
Commenter position Count of milk comments received Count of unique milk comments
comments received (86,247) milk comments (181)
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Support.......................... 36 Less than 1......... 36 19.9
Oppose........................... 5,441 6................... 84 46.4
Mixed............................ 69 Less than 1......... 61 33.7
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Milk Submissions............. 5,546 6................... 181 100
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Whole Grain-Rich Flexibility
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Percent of all Percent of unique
Commenter position Count of grains comments received Count of unique grain comments
comments received (86,247) grains comments (217)
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Support.......................... 43 Less than 1......... 43 19.8
Oppose........................... 83,767 97.................. 122 56.2
Mixed............................ 523 Less than 1......... 52 24.0
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Grains Submissions........... 84,333 98.................. 217 100
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Sodium Flexibility
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Percent of all Percent of unique
Commenter position Count of sodium comments received Count of unique sodium comments
comments received (86,247) sodium comments (229)
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Support.......................... 550 Less than 1......... 79 34.5
Oppose........................... 83,152 96.................. 132 57.6
Mixed............................ 18 Less than 1......... 18 7.9
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Sodium Submissions........... 83,720 97.................. 229 100
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In general, commenters in favor of the flexibilities argued that these provide more menu planning options for schools and thus enhance their ability to offer wholesome and appealing meals. They stated that the flexibilities will lead to increased meal consumption and better health outcomes for students. The School Nutrition Association, representing 57,000 members, urged USDA to adopt a permanent solution to operational challenges rather than temporary rules and annual waivers.
Commenters opposed to the flexibilities argued that these are not needed because most schools report being in compliance with the meal patterns, and the flexibilities could restrain schools' progress in increasing whole grains and reducing sodium intake. Many expressed interest in retaining the meal patterns as implemented in 2012, and stated their concern about children's continued access to wholesome school meals and the need to help children develop positive dietary habits for life.
In addition to specific comments about the milk, whole grain-rich, and sodium flexibilities, commenters provided general feedback on the interim final rule. The following table shows tallies of the general comments received in support of and against the meal flexibilities addressed in the interim final rule. Many of the opposing comments were submitted as part of the form letter campaigns described above:
General Feedback on Milk, Whole Grain-Rich, and Sodium Flexibilities
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Percent of all
Themes Count of comments comments received
received (86,247)
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General Support
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Positive health impacts for 20 Less than 1.
children.
Increase meal consumption and 90 Less than 1.
decrease food waste.
Relieve industry of meal 4 Less than 1.
pattern compliance challenges
(e.g. product development).
Reduce compliance burden for 20 Less than 1.
Program operators.
Other general support......... 60 Less than 1.
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General Opposition
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Negative health impacts for 6,830 8.
children.
Negative impacts on children's 1,190 1.4.
ability to access healthy
meals.
Flexibilities are not needed 83,080 96.
(e.g. widespread compliance
with existing standards).
Inconsistent with Dietary 260 Less than 1.
Guidelines for Americans.
Other general opposition...... 290 Less than 1.
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After careful consideration of all stakeholders' comments, USDA believes that school nutrition operators have made the case that this final rule's targeted regulatory flexibility is practical and necessary for efficient Program operation. The targeted regulatory flexibility will improve student participation without a detrimental effect on the overall quality of the meals offered to children. Some commenters opposed to the flexibilities voiced concerns about the potential impact of the flexibilities on various segments of the student population. USDA is addressing these concerns separately in the Civil Rights Impact Analysis, which is available under the Supporting Documentation tab in docket FNS-2017-0021.
The following is a high-level summary of the flexibilities as stated in the interim final rule (82 FR 56703, November 30, 2017), the key concerns and arguments expressed by commenters, and USDA's response. Miscellaneous comments regarding food quantities, meal costs, calorie limits, and other topics unrelated to the flexibilities in the interim final rule are not discussed in this preamble, but are included in the Summary of Public Comments report.
Prior to publication of the interim final rule, USDA received 580 postcards expressing opposition to the flexibilities as stated in the Secretary's May 1, 2017, Proclamation. These postcards were not submitted in response to the interim final rule and, therefore, were not included in the comment analysis or as part of the public record for this rulemaking. They would not, in any event, alter the agency's final conclusions herein.
Milk Flexibility
In SY 2018-2019, the interim final rule:
Allows schools to offer flavored, low-fat milk in the NSLP (including as a beverage for sale during the school day) and the SBP (7 CFR 210.10(d)(1)(i); 7 CFR 210.11(m)(1)(ii), (m)(2)(ii) and (m)(3)(ii); and 7 CFR 220.8(d));
Allows flavored, low-fat milk in the Special Milk Program for Children
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(SMP) for children ages 6 and older (7 CFR 215.7a(a)(3)); and
Allows flavored, low-fat milk in the Child and Adult Care Food Program (CACFP) for children ages 6 and older and adults (7 CFR 226.20(a)(1)(iii) and (iv); and 7 CFR 226.20(c)(1), (2) and (3)).
Comments in Support
Commenters in support of the milk flexibility included individuals, a school nutrition organization, State agencies, food manufacturers, and trade associations. Supporters generally expressed concern related to the decline in children's milk consumption. They argued that allowing flavored, low-fat milk will provide schools more menu planning options, promote students' milk consumption, and lead to better health outcomes.
A nutritionist, healthcare professional, and food manufacturer stated that allowing flavored, low-fat milk will increase milk consumption and result in greater intake of essential nutrients such as vitamin D, magnesium, and calcium. A healthcare professional and members of academia stated that the minor increase in calories from flavored, low-fat milk could be offset with appropriate menu planning. A dairy trade association asserted that the net increase in calories between fat-free and low-fat, flavored milk is small due to progress made by dairy processors in reducing the calories in flavored milk. According to the commenter, milk processors have reduced the calorie and added sugar content of flavored milk between SY 2006-2007 and SY 2015-2016 by more than 9 grams per serving (or 55 percent) in chocolate milk produced for the school market.
A State agency suggested that the flexibility should be offered across all Federal Child Nutrition Programs for consistency. A few commenters offered suggestions unrelated to the milk flexibility, such as allowing schools to offer non-dairy milk options, and eliminating all fat limits on fluid milk offered in schools.
Comments in Opposition
Commenters opposed to the milk flexibility included parents and individuals, public health practitioners, and nutrition advocates. These commenters generally expressed health concerns related to added sugar in flavored milk. They argued that offering flavored, low-fat milk contradicts expert nutrition recommendations and could lead to increased sugar, fat, and calorie intake by children in the near and long term. They argued that schools offering flavored, low-fat milk may have to offer less food to offset the extra calories associated with this option, and said that school meals with flavored low-fat milk could exceed the weekly calorie ranges while offering no additional nutritional benefit. Others stated that the milk flexibility is unnecessary because students seem to accept unflavored, low-fat milk and unflavored/flavored, fat-free milk.
Several commenters argued that the milk flexibility as stated in the interim final rule is inconsistent with congressional intent because it does not require school districts to demonstrate a reduction in student milk consumption or an increase in school milk waste, which is specified in Section 747(c) of the Consolidated Appropriations Act, 2017.
A policy advocacy organization argued that, because milk is consumed so frequently by children, restricting flavor to fat-free milk helps decrease the amount of saturated fat in children's diets. The commenter also commended USDA for continuing to prohibit flavored milk for children under six years old.
A few individuals and public advocacy organizations also opposed allowing flavored, low-fat milk as a competitive beverage for sale in schools. They stated that, because schools are largely prohibited from selling most sugar-sweetened beverages on campus during the school day, there is no longer a need to offer flavored milk as an appealing option relative to other beverages with higher sugar content.
Mixed Response
A few commenters expressed conditional support or opposition, or offered suggestions for improving the interim final rule. For example, a State agency in favor of the milk flexibility recommended that USDA include a requirement that at least one type of unflavored milk be available at the meal service.
Several commenters opposed to the milk flexibility recommended that if USDA allows flavored, low-fat milk, a calorie limit of no more than 130 calories per 8 ounce serving should be established, consistent with the Robert Wood Johnson's Healthy Eating Research Healthier Beverage Guidelines. A few individuals and school district personnel suggested that USDA allow reduced fat (2%) milk or whole milk for health reasons rather than provide flexibility to offer flavored, low-fat or non-fat milk.
USDA Response
Beginning SY 2019-2020, this final rule will provide NSLP and SBP operators with the option to offer flavored, low-fat milk and require that unflavored milk be offered at each meal service. For consistency, the flavored, low-fat milk option will be extended to beverages for sale during the school day, and will also apply in the SMP and CACFP for participants ages 6 and older. We recognize that regulatory consistency across programs, a long-time practice at USDA, facilitates program administration and operation at the State and local levels, fosters customer support, and meets customers' expectations. The Summer Food Service Program (SFSP) currently allows flavored, low-fat milk with summer meals so this rule makes no change to milk service in the SFSP.
By broadening the flavored milk choices in the Child Nutrition Programs, USDA seeks to remove regulatory restrictions that may hinder milk consumption. USDA's decision to expand the milk choices is based on stakeholders' concerns over decreasing milk consumption in the U.S. population. Data from USDA's Economic Research Service shows a decrease in fluid milk consumption from 197 pounds per person in 2000 to 154 pounds per person in 2016.\3\ Chobani, General Mills, and the Grocery Manufacturers Association cited this data in their comments. Commenters suggested that allowing flavored low-fat milk, a popular item among children, could help improve children's consumption of milk, an important source of calcium, vitamin D (for products fortified with vitamin D), and potassium. Further, commenters such as the National Milk Producers Federation and the International Dairy Foods Association noted that milk processors have significantly reduced the calorie and sugar content of flavored milk in recent years. Commenters noted that flavoring and a moderate amount of sweetener increases palatability, without compromising the positive nutritional impacts of milk consumption.
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\3\ U.S. Department of Agriculture Economic Research Service. Dairy products: Per capita consumption, United States (Annual). September 2017. Available at https://www.ers.usda.gov/data-products/dairy-data/.
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For operational efficiency, operators will be allowed to serve flavored low-fat milk without the need to demonstrate hardship. This will relieve schools from submitting written justification and evidence (e.g., meal count records, photos, etc.) to the State agency to demonstrate financial hardship, such as a drop in meal counts or an increase in food waste. USDA is removing this operational burden for State and local
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operators to streamline procedures given the interest in this milk option. For SY 2017-2018, a total of 578 school food authorities (about 3 percent of all school food authorities operating the school meal programs) submitted flavored, low-fat milk exemption requests based on hardship, and State agencies approved 562 of those requests.
Eliminating the need to demonstrate hardship is consistent with the underlying statutory authority. The provision cited by commenters, Section 747(c) of the Consolidated Appropriations Act, 2017, expires with the 2017-2018 school year, whereas this rule is effective with the 2019-2020 school year. Further, under section 9(a)(2) of the National School Lunch Act, students must be provided with a variety of fluid milk and milk may be flavored or unflavored; there is no statutory requirement to demonstrate hardship in order to serve low-fat, flavored milk.
A comment from a State agency recommended that the milk flexibility include the requirement that operators offer unflavored milk at each meal service, in addition to any flavored milk offered. USDA agrees with this recommendation. Therefore, upon implementation of this rule, NSLP and SBP operators that choose to offer flavored milk must also offer unflavored milk (fat-free or low-fat) at the same meal service. This requirement will ensure that milk variety in the NSLP and SBP is not limited to flavored milk choices. It is expected to help schools that choose to offer flavored milk in their menus stay within the weekly dietary specifications. USDA believes that most schools would continue to offer unflavored milk at each meal service to meet parents' expectations, even if offering unflavored milk was not a requirement.
USDA recognizes the importance of having unflavored milk as a choice for students at each lunch and breakfast service. Many comments from parents, public health practitioners, and nutrition advocates voiced concerns over added sugars in the school meals and expressed a strong interest in retaining children's access to unflavored milk. We are aware that parents may want their children to drink unflavored milk at lunch and breakfast (e.g., with breakfast cereal). In addition, many State agencies have promoted unflavored milk in the NSLP and SBP as every edition of the Dietary Guidelines for Americans since 1980 has recommended reducing sugar intake. We note that the requirement to ensure that unflavored milk is available on the school menu will not apply in the NSLP afterschool snack service, the SMP, or the CACFP consistent with existing Program requirements. These meal services do not have a requirement to offer a variety of fluid milk as they are smaller in size and resources than the lunch and breakfast services.
Some commenters recommended calorie limits for individual servings of flavored, low-fat milk (no more than 130 calories per 8 ounce serving). Since the NSLP and SBP calorie limits apply to the meals offered on average over the school week, this final rule will not set calorie limits for individual servings of flavored, low-fat milk. However, school food authorities that choose to offer flavored, low-fat milk are encouraged to obtain relevant information, such as the Robert Wood Johnson's Healthy Eating Research Healthier Beverage Guidelines, to inform procurement decisions. In addition, school food authorities that choose to offer flavored, low-fat milk should plan menus carefully to ensure that the weekly meals stay within the required calorie and saturated fat limits, and consult with their State agency as necessary to make proper menu adjustments.
Some commenters stated that the milk flexibility is unnecessary because most students seem to have accepted the 2012 provision that limits flavor to fat-free milk. While USDA acknowledges that many school food authorities have incorporated the 2012 meal patterns, USDA agrees with the Program operators who commented that expanding milk choices will likely improve student participation in the school meals programs and increase milk consumption. Offering flavored, low-fat milk expands the options available to schools to meet the milk requirement. Schools can choose to pursue this flavored milk option, or not, based on local preference. USDA encourages parents and students to provide feedback to their school food service operators regarding the menus and food products offered to students at lunch and breakfast (see existing provision at 7 CFR 210.12(a)).
The local school wellness policy, 7 CFR 210.31, also provides students, parents and interested community members an important opportunity to influence the school nutrition environment at large. In addition, as allowed in 7 CFR 210.19(e), State agencies have discretion to set stricter requirements that are not inconsistent with the minimum nutrition standards for school meals.
Accordingly, this final rule will amend the following milk provisions effective SY 2019-2020:
NSLP (7 CFR 210.10(d)(1)(i); 7 CFR 210.11(m)(1)(ii), (m)(2)(ii) and (m)(3)(ii));
SBP (7 CFR 220.8(d));
SMP (7 CFR 215.7(a)(3)); and
CACFP (7 CFR 226.20(a)(1)(iii) and (iv) and 7 CFR 226.20(c)(1), (2) and (3)).
Whole Grain-Rich Flexibility
The interim final rule provides State agencies through SY 2018-2019 discretion to grant exemptions to the whole grain-rich requirement to school food authorities that demonstrate hardship. School food authorities receiving an exemption must offer at least half of the weekly grains as whole grain-rich. (7 CFR 210.10(c)(2)(iv)(B) and 7 CFR 220.8(c)(2)(iv)(B)).
Comments in Support
Several commenters, including a food industry association, school district personnel, and individual commenters, reasoned that whole grain-rich exemptions should be allowed because some products (e.g., pasta, bread, sushi rice, tortillas, and biscuits) and regional products (e.g., grits in the South), are not acceptable to students in a whole grain-rich form. Other commenters, including food industry commenters, a healthcare professional, and an individual from academia, stated that it is necessary to allow the food industry sufficient time to develop solutions to the whole grain-rich challenges and provide operators more time to address preparation issues and develop menus and recipes that are acceptable to students. Some school district personnel said that the ``hot held for service'' practices in the food service make using some whole grain-rich products (e.g., pasta) difficult. Other commenters noted that they found the exemption process too burdensome, and felt that a more flexible regulatory requirement would be simpler than extending the existing process. A number of commenters, including school district personnel, said the flexibility will result in lower costs and reduced food waste.
Comments in Opposition
Many commenters, including advocacy organizations, healthcare professionals, and form letters submitted by individuals, stated that the whole grain-rich flexibility should not be allowed because of the public health benefits associated with the consumption of whole grains. Commenters argued that schools should provide the healthiest foods possible, including whole grain-rich foods, because school meals may be the only wholesome meals available to some segments of the student population.
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Several commenters expressed opposition to the whole grain-rich flexibility, reasoning that school meals help educate children about healthy eating for life.
Advocacy organizations, professional associations, healthcare professionals, and individuals said there is no need for the whole grain-rich flexibility because a significant percentage of schools are complying with the requirement and have not requested exemptions. Rather than exemptions, several commenters recommended that USDA provide additional training and technical assistance.
Mixed Response
Some commenters expressed conditional support or opposition, or offered suggestions for improving the interim final rule. A school nutrition organization, school district personnel, State agencies, professional associations, an advocacy organization, and individual commenters suggested that instead of extending the existing whole grain-rich flexibility, USDA should set a more flexible regulatory requirement for whole grains. Recommendations included the following:
Requiring that at least half of the grains offered in the weekly menu be whole grain-rich;
Requiring that at least 75 percent of the grains offered in the weekly menu be whole grain-rich; and
Allowing one non-whole grain-rich menu item in the weekly menu.
In general, these commenters noted the exemption request process, which was legislatively required, is burdensome for school food authorities and State agencies.
USDA Response
Beginning SY 2019-2020, this final rule will require that at least half of the weekly grains offered in the NSLP and SBP meet the whole grain-rich criteria specified in FNS guidance, and that the remaining grain items offered must be enriched. This decision, recommended by the School Nutrition Association, representing 57,000 school nutrition professionals, is consistent with USDA's commitment to alleviate difficult regulatory requirements, simplify operational procedures, and provide school food authorities ample flexibility to address local preferences. By setting a more feasible whole grain-rich requirement in the NSLP and SBP, school districts nationwide are expected to incorporate whole grains easily while still providing menu items that meet local preferences. This change will remove the need for whole grain-rich exemption requests based on hardship, which many commenters, including State and local Program operators, described as burdensome.
The requirement to offer exclusively whole grain-rich products proved impractical for many school districts and, due to a long history of administrative and legislative actions allowing exemptions, it was never fully implemented nationwide. Seeking to assist operators, USDA allowed enriched pasta exemptions for SYs 2014-2015 and 2015-2016, and Congress expanded the pasta flexibility to include other grain products. Through successive legislative action, Congress directed the USDA to allow State agencies to grant individual whole grain-rich exemptions (Section 751 of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235); and Section 733 of the Consolidated Appropriations Act, 2016 (Pub. L. 114-113)). In addition, Section 747 of the Consolidated Appropriations Act, 2017 (Pub. L. 115-
31) (2017 Appropriations Act) provided flexibilities related to whole grains for SY 2017-2018. Most recently, Section 101(a)(1) of the Continuing Appropriations Act, 2018, Division D of the Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017, Public Law 115-56, enacted September 8, 2017, extended the flexibilities provided by section 747 of the Consolidated Appropriations Act, 2017 through December 8, 2017. The 2017 Appropriations Act provided authority for whole grain-rich exemptions through the end of SY 2017-2018, and the interim final rule (82 FR 56703) extends the availability of exemptions through SY 2018-
2019. Despite all of these administrative and legislative actions, some school food authorities continue to experience challenges. Nevertheless, for SY 2017-2018, a total of 4,297 school food authorities (about 23 percent of school food authorities operating the school meal programs) submitted whole grain-rich exemption requests based on hardship, and nearly all (4,124) received exemption approval from their State agency.
USDA recognizes that it is not feasible to operate these nationwide programs in an ad hoc fashion, with recurrent exemptions, without giving operators and the food industry a workable regulatory solution that provides the long-term certainty they need for food procurement and product reformulation. At the same time, USDA is mindful of commenters' concerns about the health and dietary habits of children, and agrees that schools should provide the healthiest foods possible. The whole grain-rich requirement in this final rule is a minimum standard, not a maximum, and reflects in a practical and feasible way the Dietary Guidelines' emphasis on whole grains consumption. Requiring that at least half of the weekly grains offered in the NSLP and SBP be whole grain-rich is a minimum standard that schools have already accomplished and is highly achievable, supported by the School Nutrition Association, and provides exceptional flexibility for local operators in planning wholesome and appealing school meals.
By re-implementing the whole grain-rich requirement that was in place from SY 2012-2013 through SY 2013-2014, USDA recognizes the nutritional benefits of whole grains as well as the need for gradual adjustments in school menu planning, procurement, and food service equipment. USDA expects that many schools will continue to provide a significant portion of their grain products each week in the form of whole grain-rich foods as they are currently required to do so. As noted above, at least half of the grains offered weekly must be whole grain-rich, and the other grain items offered must be enriched.
USDA encourages Program operators to incorporate whole grain-rich products in the school menu when possible, especially in popular menu items such as pizza. USDA will continue to provide training and technical assistance resources to assist in these efforts. In addition, USDA Foods will continue to make whole grain-rich products easily available to Program operators. For example, whole grain or whole grain-rich USDA Foods available to schools for SY 2018-2019 include flour, rolled oats, pancakes, tortillas, and several varieties of pasta and rice. Requiring that half of the weekly grains be whole grain-rich is intended to set a floor and not a ceiling. Schools already offering all grains as whole grain-rich do not have to change their menus as a result of this final rule.
As stated earlier, 7 CFR 210.19(e) allows State agencies discretion to set additional requirements that are not inconsistent with the minimum nutrition standards for school meals. For example, State agencies could require school food authorities to offer whole grain-
rich products for four days in the school week (or approximately 80 percent of the weekly meals), thus allowing enriched grains one day each week, as suggested by a commenter. At the local level, 7 CFR 210.12(a) allows students, parents and community members to influence menu planning by
Page 63782
providing ideas on the use of whole grain-rich products in the weekly menu. The local school wellness policy (7 CFR 210.31) also provides an important opportunity to influence the school nutrition environment at large.
Accordingly, this final rule will amend the following grains provisions effective SY 2019-2020:
NSLP (7 CFR 210.10(c)(2)(iv)(B)); and
SBP (7 CFR 220.8(c)(2)(iv)(B)).
Sodium Flexibility
The interim final rule retained Sodium Target 1 in the NSLP and SBP through SY 2018-2019 (7 CFR 210.10(f)(3) and 7 CFR 220.8(f), respectively), and requested comments on the long-term availability of this flexibility. It also retained Target 2 and the final target as part of the sodium reduction timeline.
Comments in Support
School personnel and individual commenters spoke about the work done by school food service professionals, manufacturers, and vendors in striving to meet Sodium Target 1. These commenters also expressed concern about the acceptance of meals with lower sodium content by students, who are accustomed to eating foods with higher sodium content outside of school. Trade associations, a healthcare professional, and a nutritionist said that extending Sodium Target 1 through SY 2018-2019 is necessary as there are challenges in reducing sodium across the food supply.
Several commenters stated that schools not equipped for ``scratch'' cooking rely heavily on processed/manufactured foods; therefore, these commenters think it is appropriate to extend Target 1 until the food industry is able to develop palatable products with lower sodium content. Other commenters and a professional association argued that there is no conclusive scientific evidence to support the benefits of further sodium reduction in school meals, and there is uncertainty about the long-term effects on child or teen development and overall health.
Trade associations, a healthcare professional, and a nutritionist said extending Sodium Target 1 is important to accommodate the ongoing update of the current Dietary Reference Intakes (DRI) for sodium and potassium. The DRIs, a set of reference values used to plan and assess the diets of healthy individuals and groups, are updated periodically as needed. The commenters said USDA should wait for the DRI review currently underway by The National Academies of Sciences, Engineering and Medicine (NASEM) before taking further action on sodium reduction. NASEM DRI review of sodium and potassium began in fall 2017 and a draft report is expected by spring 2019. See more information about the DRIs at https://www.nal.usda.gov/fnic/dietary-reference-intakes.
A State agency and trade associations supported extending Target 1 through at least the end of SY 2020-2021. A school nutrition organization and school district personnel supported retaining Target 1 as the final sodium target and eliminating the other sodium targets.
A professional association and policy advocacy organization stated that Target 3 (the final target) is fundamentally unattainable. They expressed concern that the final sodium target relies on changes to manufacturing processes that could use technologies or chemical substitutes that pose greater health risks than the sodium they would replace.
Comments in Opposition
Many individual commenters participating in form letter campaigns, a State agency, policy advocacy organizations, and professional associations expressed concern that the sodium flexibility will lead to negative health effects in children, such as increased risk of high blood pressure, heart disease, obesity, and stroke. A policy advocacy organization said lowering sodium consumption, and thereby reducing the risk of high blood pressure, can substantially reduce public health costs.
Commenters also asserted that there is no need for sodium flexibility because Sodium Target 2 is achievable and many school districts are working toward or already providing wholesome and appealing meals with less sodium. A policy advocacy association said that several food companies, such as Aramark, General Mills, Kraft-
Heinz, Mars Food, Nestle, PepsiCo, Tyson Foods, Subway, Panera, and Unilever, have been leaders in voluntary sodium reduction and, therefore, there are more products with healthier levels of sodium readily available in the marketplace. A food manufacturer stated that its commitment to developing a range of lower sodium options demonstrates the industry's ability to be a productive partner in addressing crucial public health problems. Other commenters expressed concern that extending the Target I flexibility could lead industry to halt reformulation and innovation efforts, and discourage school efforts to continue sodium reduction.
Some commenters expressed concern that extending Target 1 moves meal requirements away from evidenced-based dietary guidance. A policy advocacy organization stated that the Richard B. Russell National School Lunch Act requires that school meals be aligned with the Dietary Guidelines for Americans, and continuing to delay implementation of the sodium targets creates inconsistency with the law. In addition, policy advocacy associations, professional associations, and individuals participating in form letter campaigns opposed extending Target 1 until SY 2020-2021, stating it would harm children's health. Many commenters stated that, rather than delaying the sodium targets, USDA should address remaining challenges by providing operators targeted training, technical assistance, and demonstrated strategies and best practices.
Mixed Response
Some commenters provided mixed feedback on the flexibility, including conditional support or opposition, or suggestions for improvement. A food bank supported the retention of Target 1 through the end of SY 2018-2019, but asserted that school districts should be encouraged to procure and introduce lower sodium foods in preparation for the implementation of Target 2. A school advocacy organization encouraged USDA to implement Target 2 ``at a future date.'' Two chapters of a school nutrition organization that supported the Target 1 flexibility also suggested eventual implementation of Target 2. A professional association and policy advocacy organization supported delaying Target 2 and recommended that Target 2 should be the final target. The commenters also recommended that USDA re-evaluate Target 2 in light of science-based research and the DRI for sodium.
USDA Response
This final rule will provide schools in the NSLP and SBP more time for gradual sodium reduction by retaining Sodium Target 1 through the end of SY 2023-2024, requiring compliance with Sodium Target 2 in SY 2024-2025 (which begins July 1, 2024; see charts), and eliminating the Final Target that would have gone into effect in SY 2022-2023.
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National School Lunch Program--Sodium Timeline & Limits
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Target 1: July Target 2: July
Age/grade group 1, 2014 SY 1, 2024 SY
2014-2015 (mg) 2024-2025 (mg)
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K-5..................................... NSLP (7 CFR 210.10(f)(3)); and
SBP (7 CFR 220.8(f)).
Procedural Matters
Executive Order 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been determined to be significant and was reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.
Economic Summary
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). USDA does not anticipate that this final rule is likely to have an economic impact of $100 million or more in any one year, and therefore, does not meet the definition of ``economically significant''
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under Executive Order 12866. The RIA for an earlier final rule, Nutrition Standards in the National School Lunch and School Breakfast Programs (77 FR 4088, January 26, 2012), underscores the importance of recognizing the linkage between poor diets and health problems such as childhood obesity. In addition to the impacts on the health of children, the RIA also cites information regarding the social costs of obesity and the additional economic costs associated with direct medical expenses of obesity. The RIA for the 2012 rule included a literature review to describe qualitatively the benefits of a nutritious diet to combat obesity and did not estimate individual health benefits or decreased medical costs that could be directly attributed to the changes in the final rule, due to the complex nature of factors that impact food consumption and obesity.\4\ USDA believes the specific flexibilities in this final rule are intended to ease Program operator burden while ensuring the majority of the changes resulting from the 2012 regulation remain intact.
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\4\ https://www.gpo.gov/fdsys/pkg/FR-2012-01-26/pdf/2012-1010.pdf: ``Because of the complexity of factors that contribute both to overall food consumption and to obesity, we are not able to define a level of disease or cost reduction that is attributable to the changes in meals expected to result from implementation of the rule. As the rule is projected to make substantial improvements in meals served to more than half of all school-aged children on an average school day, we judge that the likelihood is reasonable that the benefits of the rule exceed the costs, and that the final rule thus represents a cost-effective means of conforming NSLP and SBP regulations to the statutory requirements for school meals.''
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The Secretary of Agriculture acknowledged the operational challenges in meeting the meal standards related to flavored milk, whole grain-rich products, and sodium targets in the May 1, 2017, Proclamation and committed to working with stakeholders to ensure that school meal requirements are practical and result in wholesome and appealing meals. The interim final rule Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements (82 FR 56703, November 30, 2017), established regulations that extend the school meal flexibilities through SY 2018-2019. For SY 2018-2019, the regulations provide NSLP and SBP operators the option to offer flavored low-fat (1 percent fat) milk with the meal and as a beverage for sale during the school day, and apply the flexibility in the SMP and CACFP for participants age 6 years and older; extend the State agencies' option to allow individual school food authorities to include grains that are not whole grain-rich in the weekly NSLP and SBP menus; and retain Sodium Target 1 in the NSLP and SBP.
This final rule makes specific modifications to the milk, grain, and sodium requirements beginning in SY 2019-2020. The purpose of this rule is to ease operational burden and provide school nutrition professionals the flexibility needed to successfully operate the Child Nutrition Programs. This final rule makes the following changes beginning in SY 2019-2020:
Allow NSLP and SBP operators the option to offer flavored low-fat milk and require that unflavored milk be offered at each meal service. For consistency, the flavored milk flexibility will be extended to beverages for sale during the school day, and will also apply in the SMP and CACFP for participants ages 6 years and older. This flexibility will not apply to the Summer Food Service Program as flavored low-fat milk is already allowed in that Program.
Require that at least half of the weekly grains offered in the NSLP and SBP be whole grain-rich.
Retain Sodium Target 1 through the end of SY 2023-2024 and require compliance with Sodium Target 2 in SY 2024-2025, which begins July 1, 2024.
USDA expects the health benefits of the meal standards, which are mainly left intact, to be similar to the overall benefits of improving the diets of children cited in the RIA for the 2012 meal standards rule. While the changes in this final rule provide flexibilities to the 2012 regulations, the targeted nature of the three specific changes addresses persistent Program operator and stakeholder challenges with milk, grain, and sodium requirements. Program operators may exceed these minimum requirements and must continue to meet the same caloric and fat limits specified in the 2012 rule. The nation's students will continue to benefit from the suite of changes in the 2012 regulations and the health benefits qualitatively described in the 2012 RIA still apply.
As explained above, this final rule eases the operational challenges associated with these three requirements while balancing the nutrition science, as stated in the Dietary Guidelines for Americans, and the Program operator's ability to comply with the overall standards and the importance of ensuring children receive wholesome and appealing meals. These challenges were cited during a period of decreased meal consumption and Program participation, and some Program operators reported offering meals that did not appeal to children. The USDA Special Nutrition Program Operations Studies for SYs 2012-2013 and 2013-2014 suggested that, as with any major change, there were some challenges. During the initial years of implementation of the 2012 school meal regulations, nearly one third of SFAs reported challenges finding products to meet the updated nutrition standards. For example, food costs, student acceptance, and the availability of products meeting the standards were the primary challenges anticipated in implementing the whole grain-rich requirement in full.\5\ According to USDA administrative data, the largest decrease in NSLP lunch participation occurred in FY 2013 (-3%) which was the first fiscal year the standards went into effect. This decrease was driven by a substantial decrease in the paid lunch category. While paid lunch participation had decreased since 2008, the drop in 2013 was the largest decrease in over 20 years. There were other changes implemented during this timeframe, most notably the requirement to incrementally increase paid lunch prices; however some of the drop may have been due to students choosing not to participate due to the new meal standards. Paid lunch participation continues to decline but at a slower rate in recent years. Total participation has remained relatively stable for the past 3 years. While there have been many successes in the implementation of the 2012 standards,\6\ some Program operators still face challenges with fully implementing the suite of changes. The flexibilities in this rule provide relief to these Program operators allowing them to successfully offer wholesome and appealing meals to students.
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\5\ 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; J. Murdoch et al. (2016). Special Nutrition Program Operations Study, SY 2013-
14 Report. Prepared by 2M Research Services, LLC. Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition Service. Project Officers: Toija Riggins and John Endahl.
\6\ Robert Wood Johnson Foundation's Bridging the Gap Release on School Meals Perceptions in Childhood Obesity. September 2013. http://www.rwjf.org/en/library/research/2014/06/bridging-the-gap-s-work-on-childhood-obesity.html.
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USDA is committed to nutrition science but also understands the importance of practical requirements for Program operators to successfully operate the Child Nutrition Programs. The changes set forth in this rule still show progress in school meal nutrition, and children will continue to be offered and exposed to wholesome school meals to facilitate nutritious choices in the future. Further, we do not anticipate
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this final rule will deter the significant progress made to date \7\ by State and local operators, USDA, and industry manufacturers to achieve healthy, palatable meals for students. The certainty this rule provides around the changes to the standards will provide industry the ability to commit to reformulating products and work towards innovative solutions. These changes also provide relief to Program operators who may be meeting the standards but still facing the sustained challenges addressed in this final rule.
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\7\ FNS National Data Bank Administrative Data: 99.8% of lunches served in fiscal year (FY) 2017 received the performance based reimbursement for compliance with the meal standards. This includes lunches served in SFAs granted whole grain exemptions.
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Cost Impact
Similar to the interim final rule, USDA anticipates minimal if any costs associated with the changes to the nutrition standards for milk, grains, and sodium. The overall meal components, macro nutrient, and calorie requirements for the lunch and breakfast programs remain unchanged, and it is the Program operators' option to use the milk flexibility or exceed the minimum whole grain-rich and sodium standards established in this final rule. These changes are also promulgated in the context of significant progress made to date by State and local operators, USDA, and food manufacturers to achieve healthy, appealing meals for students.
Local operators struggling with one or all of these requirements are expected to benefit from the more flexible nutrition standards and be better able to balance the service of wholesome meals with availability of current and future resources for preparing appealing meals. The added flexibility for the milk and grain requirements and the additional time to implement sodium Target 2 are expected to provide certainty for Program operators to effectively procure food to develop wholesome and appealing menus.
Milk Flexibility
As stated in the interim final rule, there may be some cases in which flavored, low-fat milk is slightly more expensive and for some it might be slightly less expensive than the varieties currently permitted in the 2012 meal standards rule, but any overall difference in cost is likely to be minimal. The requirement that unflavored milk be offered at each school meal service is not expected to impact cost. Unflavored milk was a popular offering prior to the updated meal standards. In SY 2009-2010, the most commonly offered milks were unflavored, low-fat (73 percent of all daily NSLP menus) and flavored, low-fat (63 percent).Whole milk was offered in fewer than five percent of all daily menus.\8\ Given that unflavored milk was already a part of the majority of school meal menus prior to the new standards, the requirement to offer unflavored along with flavored milk is not anticipated to be an additional burden to Program operators and is likely a practice Program operators have already incorporated to satisfy the variety requirement.
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\8\ U.S. Department of Agriculture, Food and Nutrition Service, Office of Research and Analysis, School Nutrition Dietary Assessment Study IV, Vol. I: School Foodservice Operations, School Environments, and Meals Offered and Served, by Mary Kay Fox, Elizabeth Condon, Mary Kay Crepinsek, et al. Project Officer, Fred Lesnett Alexandria, VA: November 2012.
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Whole Grain-Rich Flexibility
The changes in this final rule provide Program operators the flexibility to offer some non-whole grain-rich products that are appealing to students without the administrative burden of the exemption process. The requirement that at least half of the weekly grains offered in NSLP and SBP be whole grain-rich may provide savings for some Program operators facing challenges procuring certain whole grain-rich products; however, we expect that as more products become available, any differential costs associated with whole grain-rich and non-whole grain-rich products will normalize in the market. The availability of whole grain-rich products through USDA Foods and the commercial market has increased significantly since the implementation of the 2012 meal standards and continues to progress, providing new and affordable options for local operators to integrate into menus. Finally, due to the wide variation in local adoption of this flexibility, any overall savings are likely minimal.
Sodium Flexibility
This final rule extends Sodium Target 1 through school year 2023-
2024 and requires compliance with Sodium Target 2 in school year 2024-
2025. This decision allows more time to develop products that meet the rule's standards and provides industry with the certainty needed to continue to develop new appealing products. This sodium reduction timeline allows for the opportunity for any potential impacts to the school meal programs from the updated DRI report and the 2020 Dietary Guidelines for Americans to be considered. The extension of Target 1 and the resulting delay of the implementation of Target 2 to SY 2024-
2025 provide adequate time to accommodate any potential changes, including regulatory adjustments to incorporate updated scientific recommendations. USDA recognizes the need for sodium reduction in school meals and is still retaining Target 2. USDA anticipates that Program operators will continue their efforts to reduce sodium in school meals while industry will continue to work towards lower sodium formulations. We do not anticipate any additional costs associated with this change as it allows additional time for Program operators and industry to reduce sodium levels in meals.\9\
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\9\ In the RIA for the final rule, Nutrition Standards in the National School Lunch and School Breakfast Programs (77 FR 4088), meeting the first sodium target was not estimated as a separate cost due to the fact that the first target was meant to be met using food currently available when the target went into effect in SY 2014-2015 (or by making minimal changes to the foods offered). While the regulatory impact analyses did not estimate a separate cost to implement Sodium Target 1, it did factor in higher labor costs for producing meals that meet all the meal standards at full implementation to factor in the costs of schools replacing packaged goods to food prepared from scratch. Over 5 years, the final rule estimated that total SFAs costs would increase by $1.6 billion to meet all standards. The cost estimate extended only through FY 2016, two years before the final rule's second sodium target would have taken effect. The second sodium target was designed to be met with the help of industry changing food processing technology.
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Overview of Public Comments and USDA Response
There were about 20 comment submissions that provided input on risks or benefits of the interim final rule. The American Public Health Association submitted a form letter representing 15 individuals who claimed the USDA underestimated the reduced health benefits. They expressed concern that the flexibilities could lower the estimated health benefits over time. They indicated that the Economic Summary does not provide a sufficiently thorough assessment of lost benefits and concluded that, in the final rule, USDA must calculate the reduced benefit to children for any changes it makes to the school nutrition standards related to sodium, whole grains, or flavored milk.
Similarly, the American Heart Association said USDA states in the interim final rule that the benefits would be similar as the original RIA conducted on the 2012 rule. They questioned how the impact could remain the same when children are served more sodium, fewer whole grain-rich foods, and milk with higher calories and saturated fat. They stated
Page 63786
that USDA should recalculate the RIA and indicate the reduced health benefit caused by these changes to the school nutrition standards.
USDA Response
The following sections review the changes and provide additional information regarding potential nutritional impacts.
Milk Flexibility
In this final rule, USDA will allow NSLP and SBP operators the option to offer flavored, low-fat milk and require that unflavored milk be offered at each meal service. The flavored milk flexibility will be extended to beverages for sale during the school day, and will also apply in the SMP and CACFP for participants ages 6 years and older.
As noted in the interim final rule, the regulatory impact analyses for the final rule, Nutrition Standards in the National School Lunch and School Breakfast Programs (77 FR 4088), did not estimate the health benefits associated with specific changes in meal components such as the exclusion of flavored, low-fat milk. USDA's decision to allow flavored low-fat milk reflects the concerns of declining milk consumption and the importance of the key nutrients provided by milk.\10\ Menu planners must make necessary adjustments in the weekly menu to account for the additional calories and fat content associated with offering flavored low-fat milk because this final rule does not change the upper caloric and fat limits specified in the 2012 regulations. In addition, the requirement to offer unflavored milk at each meal service ensures students will have access to a choice in milk types and also prevents schools from only offering different flavored milk types to satisfy the milk variety requirement. USDA estimates the nutritional impact of allowing flavored, low-fat milk to be minimal with the added calories and fat to be managed within the upper caloric and fat limits. Further, student intake of key nutrients provided through milk will increase if milk consumption increases.
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\10\ https://www.gpo.gov/fdsys/pkg/FR-2017-11-30/pdf/2017-25799.pdf.
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Whole Grain-Rich Flexibility
The interim final rule retains through SY 2018-2019 the State agency's discretion to grant whole grain-rich exemptions to school food authorities that demonstrate hardship. School food authorities receiving an exemption must offer at least half of the weekly grains as whole grain-rich.
Starting in SY 2019-2020, this final rule will require that at least half of the weekly grains offered in the NSLP and SBP meet the whole grain-rich criteria specified in FNS guidance, and the remaining grain items offered must be enriched. This decision was made to reduce Program operator burden while still providing children access to whole grain-rich items. The requirement to offer all whole grain-rich items was never fully implemented due to the exemption process, and about 20 percent of school food authorities still face challenges and apply for exemptions (over 4,000 school food authorities for SY 2017-2018).\11\ The most commonly requested items for exemption were pasta, tortillas, biscuits, and grits. While it is important to recognize the existing challenges with some whole grain-rich items, the vast majority (80 percent) of school food authorities strived to meet the requirement and did not request exemptions in SY 2017-2018. The impact of reducing the requirement from all grains offered to half the grains offered as whole grain-rich recognizes the importance of including whole grains in children's diets without increasing operational burden.
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\11\ USDA informal State reported data.
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The exemption process has been in place since the requirement for all grains to be whole grain-rich went into effect in SY 2014-2015. This exemption process placed a burden on Program operators and created uncertainty for stakeholders. As noted above, the majority of the exemption requests were for a few items and the process to apply for an exemption varied by State. Retaining the requirement that at least half the grains are whole grain-rich is a familiar requirement for Program operators as it was in place for two years before the requirement shifted to all grains offered be whole grain-rich. USDA believes that the requirement for half the grains to be whole grain-rich is to be viewed as a minimum amount and Program operators will likely continue to serve whole grain-rich items that have been successfully integrated into menus while allowing for the few items that are not as successful to still be offered.
USDA does not anticipate Program operators will reduce the amount of whole grain-rich offerings if they already exceed the retained standard, although that is a possibility. Rather, USDA believes that this change will allow the time necessary for more palatable and widely available whole grain-rich items to continue to be integrated into menus. USDA does not have evidence that setting the whole grain-rich requirement to a percentage greater than half and less than all grains will successfully address Program operator concerns. Reinstating the requirement that half of grains must be whole grain-rich is familiar to Program operators and provides the flexibility for some Program operators to integrate palatable whole grain-rich items into their menus while still serving items that are appealing to the students.
USDA recognizes that re-implementing the whole grain-rich requirement in place from SY 2012-2013 through SY 2013-2014 will result in some offered grain items not transitioning to whole grain-rich, and that children may not receive some key nutrients associated with whole grain-rich items. However, this rule will retain the requirement that the grains that are not whole must be enriched.
As discussed above, the vast majority of schools are expected to meet the whole-grain-rich requirements in SY 2017-2018 and did not request exemptions, demonstrating that the majority of schools are moving toward meeting the whole grain-rich standard. This rule, by continuing to require that at least half of the offered grains items be whole grain-rich, will continue to ensure that children receive whole grain-rich products as part of their school meals. The specific flexibilities in this final rule will ease Program operator burden while ensuring the majority of the changes resulting from the 2012 regulation remain intact. There are select products that are difficult to prepare, procure, or do not appeal to students that make it challenging to meet the requirement that all weekly grains offered must be whole grain-rich. Industry has worked and continues to work diligently to increase the number of products reformulated to be whole grain-rich while still appealing to students. While this shows significant progress, the continued use of waivers and challenges faced by Program operators to serve all whole grain-rich items persisted. Moving back to the requirement that at least half of the grains offered be whole grain-rich provides the stability for Program operators to add slowly and successfully more whole grain-rich items into menus without undergoing a burdensome exemption process. The requirement for at least half of the grain offered to be whole grain rich is familiar to Program operators and USDA does not have any evidence that setting the standard at a higher percentage would successfully alleviate the challenges. Finally, this requirement is the minimum limit, providing Program operators the choice
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to exceed this and offer more whole grain-rich items as they develop wholesome and appealing menus.
USDA believes this change will allow more time for industry to develop appealing whole grain-rich items as well as provide more opportunities for training and technical assistance to better incorporate whole grain-rich items. Additionally, USDA Foods, which makes up about 15 to 20 percent of the food items offered on an average school day, continues to develop new whole grain-rich products each year.
Re-instating the requirement that at least half of the grains offered be whole grain-rich will provide Program operators the local control necessary to continue to serve items that meet local preferences while still exposing students to nutritious whole grain-
rich products.
Sodium Flexibility
The interim final rule retained Sodium Target 1 in the NSLP and SBP through SY 2018-2019 (7 CFR 210.10(f)(3) and 7 CFR 220.8(f), respectively), and requested comments on the long-term availability of this flexibility. It also retained Target 2 and the final target as part of the sodium reduction timeline. This final rule will extend Target 1 through the end of SY 2023-2024, require compliance with Sodium Target 2 starting in SY 2024-2025, and eliminate the Final Target that would have gone into effect in SY 2022-2023. USDA is responding to the challenges associated with reducing the sodium level in school meals.
The impact of extending Sodium Target 1 through SY 2023-2024 increases the average daily sodium level permitted by about 55-70mg for breakfast and 300-340mg for lunch depending on the age/grade group compared to Sodium Target 2. Sodium Target 1 is about 90 to 93 percent of the daily upper intake level for both lunch and breakfast.
Table 1--Baseline Sodium and Target Levels for SBP and NSLP Combined Compared to Recommended Daily Intake Level
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Baseline average Total school meals (breakfast + lunch sodium target) Recommended daily sodium intake
sodium level as (mg) level (mg)
Age/grade group offered before ----------------------------------------------------------------------------------------------
2012 regulations Tolerable upper
(mg) Target 1 Target 2 Final target \1\ Child age level
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K-5................................... 1,950 1,770 1,420 1,070 4 to 8 1,900
6-8................................... 2,149 1,960 1,570 1,180 9 to 13 2,200
9-12.................................. 2,274 2,060 1,650 1,240 14-18 2,300
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Percent of Daily Tolerable Upper Level
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K-5................................... 102.6% 93.2% 74.7% 56.3%
6-8................................... 97.7% 89.1% 71.4% 53.6%
9-12.................................. 98.9% 89.6% 71.7% 53.9%
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\1\ The Final Target is presented for analysis purposes only as this rule will remove the Final Target that would have gone into effect in school year
2022-2023.
The average baseline sodium levels for school meals prior to the updated standards made up 98 percent to over 100 percent of the tolerable upper level of daily sodium intake. This extension of Target 1 and delay in Target 2 provides time for the DRI report and the 2020 Dietary Guidelines to be published, and for USDA to consider the updated information and potential impact on school meals. This timeline allows for any adjustments to be made, including regulatory changes, if needed, to incorporate any updated scientific information regarding sodium. USDA is retaining Target 2 recognizing the need for further sodium reduction beyond Target 1. The additional time also allows for Program operators to slowly introduce lower sodium foods to students and for industry to develop consistent lower sodium products that are palatable for students.
School children are consuming a considerable amount of sodium, and school meals contribute to their daily total. On average, most students consume 14 percent of their daily sodium intake at breakfast, 31 percent at lunch, 39 percent at dinner, and the remaining 16 percent through snacks. More than 9 in 10 U.S. school children eat more sodium than the age-specific Tolerable Upper Intake Level established by the Food and Nutrition Board, NASEM (over 130 to 150 percent of the daily recommended amount).\12\
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\12\ Sodium Intake among US School-Aged Children: National Health and Nutrition Examination Survey, 2011-2012 Quader, Zerleen S. et al. Journal of the Academy of Nutrition and Dietetics, Volume 117, Issue 1, 39-47.e5.
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It is important that the sodium level in school meals is gradually reduced to assist in introducing children to lower sodium foods. Delaying the implementation of Sodium Target 1 provides the certainty for industry members to continue to develop and test lower sodium foods for both the school meal programs and the general public.
Sodium Target 2 makes up about 71 to 75 percent of total upper intake level. This continued reduction balances the need for strong nutrition standards with the operational concerns and student acceptance of school meals. The elimination of the Final Target will allow 55-70mg more sodium for breakfast and 300-340mg for lunch. The Final Target would have made up about 54 to 56 percent of the total upper intake level.
The extension of Target 1 and delay in Target 2 provide the additional time needed for USDA to assess the DRI report and the 2020 Dietary Guidelines for Americans, which are scheduled for release at the end for 2020. Extending the Sodium Target 1 through SY 2023-2024 allows USDA to incorporate the latest scientific evidence into the school meal standards, including time needed for potential regulatory changes.
As noted earlier, we understand that there has been significant progress to date with sodium reduction in school meals. The additional time this rule provides will also enable Program operators to continue to progress, while allowing industry partners to continue to develop innovative solutions to lower sodium foods that can be served in the school meal programs.
Other Comments
An individual commenter said strict nutrition standards without reimbursement from the USDA impose high costs to feed children healthy
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meals in small schools, and some participating schools are considering leaving the program due to a low frequency of low-income children buying school lunch, resulting in a significant loss of revenue. The commenter concluded that this rule will increase student participation in purchasing school meals and thus help schools compensate for loss of revenue and high cost expenditures.
USDA believes that adding flexibility to the nutrition standards will allow Program operators additional time to work with available products to provide wholesome and appealing meals to students within available resources. This will help increase student consumption of meals and reduce waste and revenue loss. While the changes resulting from the 2012 regulations may not have resulted in long-term impacts for participation in some schools,\13\ USDA understands there is a wide variation in school food authorities and challenges encountered by Program operators. The changes in this final rule will provide the local level control necessary to successfully operate the school meal programs.
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\13\ Impact of the 2010 U.S. Healthy, Hunger-Free Kids Act on School Breakfast and Lunch Participation Rates Between 2008 and 2015 Nicole Vaudrin MS, RD, Kristen Lloyd MPH, Michael J. Yedidia Ph.D., MPH, Michael Todd Ph.D., and Punam Ohri-Vachaspati Ph.D., RD.
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Executive Order 13771
This final rule is an E.O. 13771 deregulatory action. It alleviates the milk, whole grain-rich, and sodium requirements in the Child Nutrition Program and provides flexibilities similar to those currently available as a result only of appropriations legislation in effect for SY 2017-2018 and administrative actions.
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. Because this final rule adds flexibility to current Child Nutrition Program regulations, the changes implemented through this final rule are expected to benefit small entities operating meal programs under 7 CFR parts 210, 215, 220, and 226. The impacts are not expected to be significant.
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 $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.
This final rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and Tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 12372
The NSLP, SMP, SBP, and the CACFP are listed in the Catalog of Federal Domestic Assistance under NSLP No. 10.555, SMP No. 10.556, SBP No. 10.553, and CACFP No. 10.558, respectively, and are subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. Since the Child Nutrition Programs are State-administered, USDA's FNS Regional Offices have formal and informal discussions with State and local officials, including representatives of Indian Tribal Organizations, on an ongoing basis regarding program requirements and operations. This provides FNS with the opportunity to receive regular input from program administrators and contributes to the development of feasible program requirements.
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132.
The Department has considered the impact of this final rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.
Executive Order 12988, Civil Justice Reform
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.
Civil Rights Impact Analysis
FNS has reviewed this final rule in accordance with USDA Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After a careful review of the rule's intent and provisions, FNS has determined that this rule is not expected to limit or reduce the ability of protected classes of individuals to participate in the NSLP, SMP, SBP, and CACFP or have a disproportionate adverse impact on the protected classes. The Civil Rights Impact Analysis is available for public inspection under the Supporting Documentation tab in docket FNS-2017-
0021.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of Executive Order 13175, ``Consultation and Coordination with Indian Tribal Governments.'' Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
FNS has assessed the impact of this final rule on Indian tribes and determined that this rule does not, to the best of its knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, FNS will work with the Office of Tribal Relations to ensure meaningful consultation is
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provided where changes, additions, and modifications identified herein are not expressly mandated by Congress. Tribal representatives were informed about this rulemaking on March 14, 2018.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 1320) requires the Office of Management and Budget (OMB) to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. The provisions of this final rule do not impose new information collection requirements subject to approval by the OMB under the Paperwork Reduction Act of 1994.
E-Government Act Compliance
The Department is committed to complying with the E-Government Act 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.
Grant programs--education, Grant programs--health, Infants and children, Nutrition, Reporting and recordkeeping requirements, School breakfast and lunch programs.
Accounting, Aged, Day care, Food assistance programs, Grant programs, Grant programs--health, American Indians, Individuals with disabilities, Infants and children, Intergovernmental relations, Loan programs, Reporting and recordkeeping requirements, Surplus agricultural commodities.
Accordingly, 7 CFR parts 210, 215, 220, and 226 are amended 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. In Sec. 210.10:
0
-
In paragraph (c) introductory text, revise the table;
0
-
In paragraph (c)(2)(i)(A), second sentence, remove ``ppendix A'' and add in its place ``appendix A''; and
0
-
Revise paragraphs (c)(2)(iv)(B), (d)(1)(i), and (f)(3).
The revisions read as follows:
Sec. 210.10 Meal requirements for lunches and requirements for afterschool snacks.
* * * * *
(c) * * *
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Lunch meal pattern
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Grades K-5 Grades 6-8 Grades 9-12
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Food Components................................................. Amount of Food \a\ per Week
(minimum per day)
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Fruits (cups) \b\............................................... 2\1/2\ ( \1/2\ 2\1/2\ ( \1/2\ 5 (1)\1/2\
) )
Vegetables (cups) \b\........................................... 3\3/4\ ( \3/4\ 3\3/4\ ( \3/4\ 5 (1)
) )
Dark green \c\.............................................. \1/2\ \1/2\ \1/2\
Red/Orange \c\.............................................. \3/4\ \3/4\ 1\1/4\
Beans and peas (legumes) \c\................................ \1/2\ \1/2\ \1/2\
Starchy \c\................................................. \1/2\ \1/2\ \1/2\
Other c d................................................... \1/2\ \1/2\ \3/4\
Additional Vegetables to Reach Total \e\........................ 1 1 1\1/2\
Grains (oz eq) \f\.............................................. 8-9 (1) 8-10 (1) 10-12 (2)
Meats/Meat Alternates (oz eq)................................... 8-10 (1) 9-10 (1) 10-12 (2)
Fluid milk (cups) \g\........................................... 5 (1) 5 (1) 5 (1)
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Other Specifications: Daily Amount Based on the Average for a 5-Day Week
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Min-max calories (kcal) \h\..................................... 550-650 600-700 750-850
Saturated fat (% of total calories) \h\.........................
-
