# Nutrition Standards in the National School Lunch and School Breakfast Programs > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-1010 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 26, 2012 - **Citation:** 77 FR 4088 ## Text DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 210 and 220 [FNS-2007-0038] RIN 0584-AD59 Nutrition Standards in the National School Lunch and School Breakfast Programs AGENCY: Food and Nutrition Service (FNS), USDA. ACTION: Final rule. SUMMARY: This final rule updates the meal patterns and nutrition standards for the National School Lunch and School Breakfast Programs to align them with the Dietary Guidelines for Americans. This rule requires most schools to increase the availability of fruits, vegetables, whole grains, and fat-free and low-fat fluid milk in school meals; reduce the levels of sodium, saturated fat and trans fat in meals; and meet the nutrition needs of school children within their calorie requirements. These improvements to the school meal programs, largely based on recommendations made by the Institute of Medicine of the National Academies, are expected to enhance the diet and health of school children, and help mitigate the childhood obesity trend. DATES: Effective date: This rule is effective March 26, 2012. Compliance date: Compliance with the provisions of this rule must begin July 1, 2012, except as otherwise noted on the implementation table provided in the preamble under SUPPLEMENTARY INFORMATION . FOR FURTHER INFORMATION CONTACT: William Wagoner or Marisol Aldahondo-Aponte, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service at (703) 305-2590. SUPPLEMENTARY INFORMATION: Executive Summary This final rule modifies several key proposed requirements to respond to commenter concerns and facilitate successful implementation of the requirements at the State and local levels. The rule phases in many of the changes to help ensure that all stakeholders—the children, the schools, and their supply chains—have time to adapt. Most notably, this final rule provides additional time for implementation of the breakfast requirements and modifies those requirements in a manner that reduces the estimated costs of breakfast changes, as compared to the proposed rule. As a result, the final rule is estimated to add $3.2 billion to school meal costs over 5 years, considerably less than the estimated cost of the proposed rule. When considered in the context of other related provisions of the Healthy Hunger-Free Kids Act (HHFKA) of 2010, sufficient resources are expected to be available to school food authorities to cover the additional costs of updated meal offerings to meet the new standards. Specifically, in addition to improving nutritional quality, the HHFKA mandated that beginning July 1, 2011, revenue streams for a la carte foods relative to their costs be at least as high as the revenue streams for Program meals compared to their costs. Consequently schools should receive over $1 billion a year in new food revenues beginning in School Year 2011-2012. That will help schools work toward implementing the new standards effective the following year, i.e., July 1, 2012. In addition, USDA estimates that the “School Food Authorities revenues” rule will increase participation in school meal programs by 800,000 children. In addition, the six-cent per lunch performance-based reimbursement increase included in the HHFKA will provide additional revenue beginning October 1, 2012. The Congressional Budget Office estimated about $1.5 billion over 5 years will be provided in performance-based funding. I. Background The Richard B. Russell National School Lunch Act (NSLA) in Section 9(a)(4), 42 U.S.C. 1758(a)(4), requires that school meals reflect the latest “Dietary Guidelines for Americans” (Dietary Guidelines). In addition, section 201 of the Healthy, Hunger-Free Kids Act of 2010 (Pub. L. 111-296, HHFKA) amended Section 4(b) of the NSLA, 42 U.S.C. 1753(b), to require the Department of Agriculture (USDA) to issue regulations to update the meal patterns and nutrition standards for school lunches and breakfasts based on the recommendations issued by the Food and Nutrition Board of the National Research Council of the National Academies of Science, part of the Institute of Medicine (IOM). On January 13, 2011, USDA published a proposed rule in the Federal Register (76 FR 2494) to update the meal patterns and nutrition standards for the National School Lunch Program (NSLP) and the School Breakfast Program (SBP) to align them with the 2005 Dietary Guidelines. The proposed rule sought to increase the availability of fruits, vegetables, whole grains, and fat-free and low-fat fluid milk in the school menu; reduce the levels of sodium, saturated fat and trans fat in school meals; and meet the nutrition needs of school children within their calorie requirements. The intent of the proposed rule was to provide nutrient-dense meals (high in nutrients and low in calories) that better meet the dietary needs of school children and protect their health. The proposed changes, designed for meals offered to school children in grades Kindergarten (K) to 12, were largely based on the IOM recommendations set forth in the report “School Meals: Building Blocks for Healthy Children” (October 2009). In summary, the January 2011 proposed rule sought to improve lunches and breakfasts by requiring schools to: • Offer fruits and vegetables as two separate meal components; • Offer fruit daily at breakfast and lunch; • Offer vegetables daily at lunch, including specific vegetable subgroups weekly (dark green, orange, legumes, and other as defined in the 2005 Dietary Guidelines) and a limited quantity of starchy vegetables throughout the week; • Offer whole grains: half of the grains would be whole grain-rich upon implementation of the rule and all grains would be whole-grain rich two years post implementation; • Offer a daily meat/meat alternate at breakfast; • Offer fluid milk that is fat-free (unflavored and flavored) and low-fat (unflavored only); • Offer meals that meet specific calorie ranges for each age/grade group; • Reduce the sodium content of meals gradually over a 10-year period through two intermediate sodium targets at two and four years post implementation; • Prepare meals using food products or ingredients that contain zero grams of trans fat per serving; • Require students to select a fruit or a vegetable as part of the reimbursable meal; • Use a single food-based menu planning approach; and • Use narrower age/grade groups for menu planning. In addition, the proposed rule sought to improve school meals by requiring State agencies (SAs) to: • Conduct a nutritional review of school lunches and breakfasts as part of the administrative review process; • Determine compliance with the meal patterns and dietary specifications based on a review of menu and production records for a two-week period; and • Review school lunches and breakfasts every 3 years, consistent with the HHFKA. The 2010 Dietary Guidelines were released on January 31, 2011, after USDA published the proposed rule. On March 21, 2011 USDA issued a Notice in the Federal Register (76 FR 15225) seeking public comment on the need to modify the proposed rule to reflect the 2010 Dietary Guidelines recommendations to consume red-orange vegetables and protein subgroups: (1) Seafood; (2) meat, poultry and eggs, and (3) nuts, seeds, and soy products. The public comments to the Notice (76 FR 15225) were added to the proposed rule docket and all comments associated with the proposed rule were considered in preparing this final rule. USDA received a total of 133,268 public comments during the comment period January 13-April 13, 2011. This total included several single submissions with thousands of comments. The types of comments received included 7,107 unique letters, 122,715 form letters from 159 mass mail campaigns, 3,353 non-germane letters, and 93 duplicates. Comments were analyzed using computer software that facilitated the identification of the key issues addressed by the commenters, as well as by USDA policy officials. Although USDA considered all comments, the description and analysis in this final rule preamble focuses on the most frequent comments and those that influenced revisions to the proposed rule, and discusses modifications made to the proposed rule in response to public input. USDA greatly appreciates the public comments as they have been essential in developing a final rule that is expected to improve school meals in a sound and practical manner. To view all public comments on the proposed rule go to www.regulations.gov and search for public submissions under docket number FNS-2007-0038. A Summary of Public Comments is available as supporting material under the docket folder summary. Note: This final rule does not update the Pre-K school meal patterns. These are under review and will be updated in a future rulemaking amending regulations implementing the USDA's Child and Adult Care Food Program. However, two provisions in this final rule, menu planning approach and fluid milk requirements, impact Pre-K meals as discussed later in this preamble. II. Public Comments and USDA Response USDA received comments from nutrition, health, and child advocates at the national, state and local levels; SAs that administer the school meal programs; school districts/boards; schools; school food service staff; superintendents, principals, and teachers; food manufacturers and distributors; food industry representatives; food service management companies; academia; nutritionists/dietitians; community organizations; parents and students; and many other interested groups and individuals. Overall, the comments provided were generally more supportive of the proposed rule than opposed. Comments from nutrition, health and child advocates; community organizations; academia; and parents favor the proposed rule, citing concern about the national childhood obesity problem and the increased likelihood of preventable diseases such as cardiovascular disease, high blood pressure, high cholesterol, stroke, and type 2 diabetes, all of which increase the cost of healthcare nationally. Many comments enthusiastically supported the increase in fruits, vegetables, whole grains, fat-free milk/low-fat milk in the school menus, and most other proposed changes designed to improve the nutritional quality of school meals. Comments from SAs and school food authorities (SFAs), food industry, industry representatives, food service management companies, and others in the public and private sectors associated with the operation of the school meals programs also supported improving school meals but voiced strong concerns about some aspects of the proposed rule. The proposed food quantities, meat/meat alternate component at breakfast, weekly vegetable subgroup requirement at lunch, starchy vegetables limit, sodium reductions, whole grains requirement, and frequency of administrative review were the parts of the proposal that prompted most of their concerns. Program operators also raised concerns about the rule cost and implementation timeline, the impact of the proposed changes on student participation in the meal programs, and the potential for increased plate waste if meals are not acceptable to students. A number of commenters suggested that USDA conduct additional research or pilot test the proposed changes before implementation. All of the above concerns are more prevalent in the SBP than the NSLP. Schools that operate the SBP voiced significant concern about the estimated 50 cents increase in food and labor costs for each reimbursable breakfast in FY 2015, when all the requirements will be in place as stated in the proposed rule. USDA has taken into consideration the different views expressed by commenters and seeks to be responsive to the concerns raised by stakeholders, especially those responsible for the management and day to day operation of the school meal programs. At the same time, we are mindful that the overweight and obesity epidemic affecting many children in America requires that all sectors of our society, including schools, help children make significant changes in their diet to improve their overall health and become productive adults. This final rule makes significant improvements to the NSLP and SBP to facilitate successful implementation of the requirements at the State and local levels. This final rule modifies several key proposed requirements to respond to commenter concerns as well as to address requirements of the Consolidated and Further Continuing Appropriations Act, 2012, Public Law 112-55. Most notably, this final rule provides additional time for implementation of the SBP requirements and modifies those requirements in a manner that reduces the estimated costs of breakfast changes, as compared to the proposed rule. No changes to the SBP meal pattern take effect immediately upon publication of this final rule, except limiting flavor to fat-free milk, and requiring the service of only fat-free and low-fat milk (the latter is a statutory requirement codified in the NSLA in the HHFKA. See the discussion on “Milk” for further details). Furthermore, this rule introduces selected requirements into the SBP beginning SY 2013-2014 (the second year of implementation) to ease the estimated increase in breakfast costs and minimize impact on SBP operations. This approach is intended to enable program operators to concentrate on improving school lunches first and then focus on the breakfast changes. It also allows USDA to meet the statutory requirement to offer meals that reflect the Dietary Guidelines while being responsive to the concerns raised by program operators and other stakeholders. However, SFAs that are able to implement the new meal requirements concurrently in the SBP and NSLP are encouraged to do so with SA approval. Section G of the Regulatory Impact Analysis discusses in greater detail the key differences between the proposed and final rules. Most of the estimated reduction in cost is due to the policy changes discussed above, including the phased in breakfast meal pattern requirements and the elimination of a separate meat component at breakfast, as well as more modest changes to the lunch meal pattern requirements' grain and vegetable components. In addition to these policy changes, lower food inflation since preparation of the proposed rule cost estimate contributes to the reduction in the cost of the final rule compared to the proposed rule. The following is a summary of the key public comments on the proposed rule and USDA's response. Public comments unrelated to the specific provisions of the rule ( e.g., standards for cholesterol, dietary fiber, artificial sweeteners, caffeine) are not discussed here but are addressed in the Summary of Public Comments. For a more detailed discussion of the public comments see the Summary of Public Comments posted online at www.Regulations.gov . Menu Planning Approach Proposed Rule: Follow a single Food-Based Menu Planning (FBMP) approach. Comments: Nutrition, health and child advocates; community organizations; academia; parents; and SAs support the FBMP approach because it helps children easily identify the key food groups necessary for a well-balanced meal. According to a health advocate, FBMP also minimizes the opportunity to offer unhealthy foods that have been fortified to meet the nutrient requirements. SAs support a single menu planning approach as it supports a more cost effective delivery of training and technical assistance resources. However, a number of SFAs that currently use the Nutrient Standard Menu Planning (NSMP) and some school advocacy organizations, trade associations, food manufacturers, nutritionists, and other commenters suggested that NSMP be allowed as an option. SFAs that use NSMP claimed that they would still have to conduct a nutrient analysis to assess if they are meeting the new dietary specifications (calories, sodium, and saturated fat levels). Several commenters also claimed that NSMP schools are better able to control costs and that changing to FBMP would result in increased training costs. Some stated that eliminating NSMP decreases menu planning flexibility and menu variety. USDA Response: To ensure that school meals reflect the key food groups recommended by the Dietary Guidelines, this final rule establishes FBMP as the single menu planning approach for the NSLP (including for Pre-K meals) in SY 2012-2013. A single food-based menu planning approach simplifies menu planning, serves as a teaching tool to help children choose a balanced meal, and assures that students nationwide have access to key food groups recommended by the Dietary Guidelines. It also makes it easier for schools to communicate the meal improvements to parents and the community-at-large. Simplifying program management, training and monitoring is expected to result in program savings. Over 70 percent of the program operators currently use FBMP, and training and technical assistance resources will be available to help all schools successfully transition to the new meal patterns. In response to commenters' concerns about the estimated cost increase of the breakfast meal, this final rule gives those SBP program operators not currently using FBMP additional time to convert to this planning approach. SBP operators who are not currently using FBMP may continue with their current menu planning approach through SY 2012-2013. However, all SBP operators must use a single FBMP approach beginning SY 2013-2014 (the second year of implementation). This final rule sets forth the new food-based meal patterns in 7 CFR 210.10 for lunches and § 220.8 for breakfasts. In order to accommodate the extended implementation for non-FBMP operators, this final rule creates a new § 220.23 that restates the nutrition standards and menu planning approaches that apply to all SBP operators in SY 2012-2013 only. Individual SFAs wishing to adopt the provisions of § 220.8 prior to the required implementation date specified therein may do so with the approval of the SA. Accordingly, this final rule implements the proposed FBMP approach and codifies the proposal under § 210.10(a)(1)(i) of the regulatory text for the NSLP and § 220.8(a)(1) for the SBP. Menu planning approaches applicable to the SBP in SY 2012-2013 are under § 220.23(a)(5). Age/Grade Groups Proposed Rule: Plan lunches and breakfasts using age/grade groups K-5, 6-8, and 9-12. Comments: A number of nutrition, health and child advocates; and dietitians agreed that the proposed age/grade groups would result in more age-appropriate school meals. They also supported the provision allowing schools to serve the same breakfast and lunch meal patterns for students in grades K through 8, provided that the meals meet the calorie, saturated fat, and sodium standards for each the of the age/grade groups. Several commenters argued the proposed meal patterns offer too much food, especially for young children. Some commenters recommended different age/grade groups, and an SA recommended that USDA retain the current age/grade groups. Some SFAs requested flexibility in the use of the age/grade groups ( e.g., a one-grade level leeway). A number of commenters expressed concerns regarding use of the age/grade groups in the SBP, as schools generally serve K-12 students in the same line. USDA Response: This final rule requires schools to use the age/grade groups K-5, 6-8, and 9-12 to plan menus in the NSLP upon implementation of this rule in SY 2012-2013. These age/grade groups reflect predominant school grade configurations and are consistent with the IOM's Dietary Reference Intake (DRI) groupings. This rule allows reasonable flexibility in the use of the age/grade groups and permits a school to use one meal pattern for students in grades K through 8 as food quantity requirements for groups K-5 and 6-8 overlap. In such a case, the school continues to be responsible for meeting the calorie, saturated fat, and sodium standards for each of the age/grade groups receiving the school meals. The following example illustrates this concept: Example: A school could offer all students in grade groups K-5 and 6-8 the same lunch choices for the fruit, vegetable, grains, meat/meat alternate, and milk components because the quantity requirements are the same or overlap. Similarly, the calorie requirements for grades K-5 (550-650 average calories per week) and grades 6-8 (600-700 average calories per week) overlap. Therefore, a school could offer both grade groups a range of 600-650 average calories per week to meet the requirement for each grade group. While the saturated fat and trans fat requirement are the same for both grade groups, the school must carefully consider the sodium requirements. The school would have to comply with the lower sodium standard that was developed for age/grades K-5 but would also meet the requirement for students in age/grades 6-8. In the SBP, the new age/grade groups take effect in SY 2013-2014 (the second year of implementation) to ease the burden on program operators. Until then, schools have the option to continue the age/grade group K-12 for planning breakfasts. Meals planned for the age/grade group K-12 must meet the nutrition standards developed for that age/grade group, which have been moved from § 220.8 to a new § 220.23 of the regulatory text. Accordingly, this final rule implements the proposed age/grade groups and codifies the proposal under § 210.10(c)(1) of the regulatory text for the NSLP and § 220.8(c)(1) for the SBP. Age/grade groups applicable to the SBP in SY 2012-2013 are under § 220.23(b) for nutrient standards menu planning, and under § 220.23(g) for food based menu planning. Meal Components Fruits Proposed Rule: Offer fruit as a separate food component at lunch daily. Increase the fruit and vegetable amounts at lunch and double the minimum required fruit quantity at breakfast. Allow schools to offer a non-starchy vegetable in place of fruit/fruit juice at breakfast. Allow frozen fruit without added sugar only. Comments: There is general support for the proposal to establish fruit as separate food component. Stakeholders such as nutrition, health and child advocates supported the proposal because they are concerned that children are not consuming the recommended intake of fruits. One major health advocate noted that it is possible to significantly increase the quantity of fruits and vegetables in the school menu in a cost effective way, stating that many schools already exceed the current NSLP meal requirements, and noting that of thousands of schools participating in the Alliance for a Healthier Generation's Healthy School Program, 85 percent provide at least one fruit (fresh, canned, or frozen in fruit juice or light syrup) at breakfast and 72 percent provide at least four non-fried, no-added-sugars fruit or vegetable options daily. However, many commenters opposed the proposed minimum required fruit quantities, and were particularly concerned about the fruit requirement for breakfast. A number of commenters stated that one cup of fruit at breakfast is too much for young children to consume at one time and will result in significant plate waste. Commenters also emphasized that students usually have very little time to eat breakfast at school and are concerned about the logistics of offering more food through alternative breakfast delivery methods such as Breakfast in the Classroom or on the bus. In general, these commenters argued that the proposal to double the amount of fruit at breakfast would contribute to higher costs for food, labor, equipment, and storage. Regarding the types of fruit to be offered, several commenters supported the proposed limitation on added sugar in frozen fruit to limit the sources of discretionary calories. Some commenters recommended a prohibition on canned fruit in light syrup. Some program operators asked how to credit whole fresh fruit, and other commenters requested that the quantities in the meal patterns be changed from cups to servings to better account for fresh whole fruit. A few suggested that USDA adopt the HealthierUS School Challenge Gold Level requirement to serve fresh fruit twice per week with school meals. USDA Response: This final rule establishes fruits and vegetables as separate food components in the NSLP and adds a fruits requirement at lunch beginning SY 2012-2013. The intent of the new requirements is to promote the consumption of these fruits, as recommended by the Dietary Guidelines. Fruits (and vegetables) that are prepared without added solid fats, sugars, refined starches, and sodium are nutrient rich foods and supply important nutrients that are under-consumed by school children in the United States (including potassium and dietary fiber) with relatively little calories. This rule also gives program operators additional time to meet the required minimum fruit quantity increase in the SBP. Schools are required to offer 1 cup of fruit to all age/grade groups at breakfast beginning in SY 2014-2015 (the third year of implementation). This modification gives program operators more time to prepare for this important change to SBP menus. This rule also gives schools the option to offer vegetables in place of all or part of the required fruit component for menu flexibility and as a potential cost control measure. However, the first two cups per week of any such substitution must be from the dark green, red/orange, beans and peas (legumes) or other vegetable subgroups. These vegetable subgroups have been identified as being under-consumed by school children, according to the IOM report. Starchy vegetables may also be offered in substitution of fruits, once the first two cups offering of non-starchy vegetables have been met. This change to the proposed rule allows schools flexibility and the option to offer vegetables in place of fruit in accordance with the substitution protocol specified here. Although schools must offer the full amount of the required food component, to minimize the potential for food waste in the NSLP and SBP, all students are allowed to select 1/2 cup of fruit for a reimbursable meal under Offer versus Serve (OVS), instead of requiring them to take the full fruit component. This change in the application of OVS with regard to the fruits and vegetables components is further discussed in “Standards for Meals Selected by the Student (Offer versus Serve).” Schools may meet the fruit component at lunch and breakfast by offering fruit that is fresh; canned in fruit juice, water, or light syrup; frozen without added sugar, or dried. Through its USDA Foods Programs, USDA offers schools a range of fresh, frozen without added sugar, dried and canned fruits. Although 100 percent juice can be offered, no more than half of the per-meal fruit component may be juice because it lacks dietary fiber and when consumed in excess can contribute extra calories. Schools should offer fresh fruit whenever possible. Although some commenters suggested that the meal patterns set the fruit and other food requirements as servings rather than cups, this final rule does not adopt this suggestion, as a serving can be any amount of food determined by the menu planner and does not ensure uniformity. The 2005 Dietary Guidelines recommended amounts were given in cups and ounce equivalents (oz. eq.), which are standard defined amounts. Menu planners must continue to use the Food Buying Guide for Child Nutrition Programs to determine how to credit whole fruit. USDA will update the Food Buying Guide as soon as possible, and will also develop other technical assistance resources as needed. Accordingly, this final rule implements the proposed fruit requirements, with modifications, and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Fruit requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g). Vegetables Proposed Rule: Offer vegetables as a separate food component at lunch daily. Increase the variety of vegetables over the week to include the following subgroups: dark green, orange, legumes, and other as defined in the Dietary Guidelines. Limit starchy vegetables at lunch to 1 cup per week for all age/grade groups. Allow non-starchy vegetables in place of fruit at breakfast. Comments: Nutrition, health and child advocates; community organizations; academia; and parents welcomed the proposal to divide fruits and vegetables into two separate components and expressed support for the proposed weekly vegetable requirements. Some of these commenters stated the proposed increase in vegetable variety and quantity should positively impact overall consumption. State and local program operators, however, suggested that the vegetable subgroups be encouraged, rather than required (similar to the approach in the HealthierUS School Challenge guidelines). Some commenters stated that the vegetable subgroup requirements are too complicated. Others argued that children will not eat vegetables they are not familiar with and, therefore, the vegetable subgroup requirements will result in plate waste. Several commenters expressed concern that procuring some vegetable subgroups will be difficult and costly during specific times of the year in certain parts of the country. Others requested clarification regarding when beans should be considered a legume versus a meat alternate. Many State and local program operators opposed the starchy vegetable limit. They argued that all vegetables should be encouraged, and that a limit on starchy vegetables will lead to a decrease in vegetable consumption, or a decrease in participation in the NSLP. Some suggested that the weekly limit only apply to potatoes. Several suggested that instead of limiting starchy vegetables, USDA should prohibit French fries or deep-fried preparation methods for all vegetables. Others requested gradual introduction of the weekly limit on starchy vegetables. Many program operators argued that white potatoes are inexpensive and would need to be replaced by more expensive fruits and vegetables, which will be a costly strain on school/state budgets. A few asked that starchy vegetables in mixed dishes, such as soups, not count towards the weekly starchy vegetable limit. Nutrition and health advocates favored allowing non-starchy vegetables in place of fruit in the SBP. However, numerous commenters opposed disallowing starchy vegetables at breakfast. These commenters, including SFAs, food industry, and some parents, stated that starchy vegetables such as potatoes are affordable and popular, and complement many breakfast dishes. They also noted that potatoes supply potassium and other minerals, vitamins and fiber, and are naturally low in fat and sodium. Many stakeholders suggested that USDA ease the proposed restrictions on starchy vegetables. Program operators also addressed the use of salad bars to meet the vegetable requirement. They stated that salad bars are good ways to serve a wide variety of fruits and vegetables and are an effective strategy to increase children's consumption of these food groups. However, they expressed concern that the proposed vegetable requirements increase challenges with or could discourage the use of self-serve salad bars. Schools asked how to determine if the required foods/portions are being served. USDA Response: This final rule establishes vegetables as a separate food component in the NSLP, and requires schools to offer all the vegetable subgroups identified by the 2010 Dietary Guidelines (dark green, red/orange, beans and peas (legumes), starchy, and other) over the course of the week at minimum required quantities as part of the lunch menus in SY 2012-2013. As required by the Consolidated and Further Continuing Appropriations Act, 2012, Public Law 112-55 (FY 2012 Agriculture Appropriations Act), we are removing the proposed rule limit on starchy vegetables, and instead requiring schools to offer at least minimum quantities of all vegetable subgroups in the NSLP over the course of the week. This change encourages consumption from all vegetable subgroups, and is consistent with the Dietary Guidelines' recommendation to increase variety in vegetable consumption. In addition, to be consistent with the 2010 Dietary Guidelines classification of vegetable subgroups, this final rule expands the proposed orange vegetable subgroup to include red/orange vegetables. USDA asked commenters about this change in the vegetable subgroups in the Notice published by USDA in the Federal Register (76 CFR 15225) on March 21, 2011 and there was no public opposition. This final rule also allows schools the option to offer vegetables in place of all or part of the fruits requirement at breakfast beginning July 1, 2014. This is consistent with the Dietary Guidelines' recommendation to eat a variety of vegetables, especially dark green, red and orange vegetables, and beans and peas (legumes). This recommendation is applicable to the school meals because most vegetables and fruits are major contributors of nutrients that are under-consumed in the United States, including potassium and dietary fiber. Consumption of vegetables and fruits is also associated with reduced risk of many chronic diseases, including obesity, heart attack, stroke, and cancer. By providing more and a variety of vegetables in a nutrient-dense form (without added solid fats, sugars, refined starches, and sodium), schools help students obtain important nutrients and maintain a healthy weight. This final rule does not implement the proposed rule limitation on servings of starchy vegetables offered as part of the lunch and breakfast reimbursable meals. This change is in response to commenters' concerns and the requirements of the FY 2012 Agriculture Appropriations Act, which specifically prevented USDA from adopting the IOM recommendation for setting maximum limits on starchy vegetables, providing for fiscal year 2012 USDA appropriations. Therefore, schools are allowed to offer any vegetable subgroup identified by the 2010 Dietary Guidelines to meet the vegetables component required for each reimbursable school meal. The vegetable quantities in the lunch meal pattern have been modified to reflect this change to the proposal while remaining consistent with the Dietary Guidelines' focus on increasing the intake of vegetables that are under-consumed. Commenters asked USDA to clarify when to credit beans and peas (legumes) toward the vegetable component. Local menu planners decide how to incorporate beans and peas (legumes) into the school meal but may not offer one serving of beans and peas (legumes) to meet the requirements for both vegetables and meat/meat alternate components. Beans and peas (legumes) can be credited toward the vegetable component because they are excellent sources of dietary fiber and nutrients such as folate and potassium. These nutrients are often low in the diets of many Americans. Because of their high nutrient content and low cost, USDA encourages menu planners to include beans and peas (legumes) in the school menu regularly, either as a vegetable or as a meat alternate (as discussed later). Some foods commonly referred to as beans and peas ( e.g., green peas, green lima beans, and green (string) beans) are not considered part of the beans and peas subgroup because their nutrient profile is dissimilar. More information on the use and categorization of beans and peas (legumes) is available online at http://www.choosemyplate.gov/foodgroups/proteinfoods_beanspeas.html . In response to commenter questions about how to use salad bars to meet the new meal requirements, the Department would like to emphasize that schools may continue to use salad bars to enhance the variety of vegetables in the school menu. See FNS memorandum SP 02-2010—Revised (January 21, 2011) for more information on how salad bars can be used effectively as part of the reimbursable meals. The memorandum is available online at http://www.fns.usda.gov/cnd/governance/ Policy-Memos/2011/SP02-2011revised_os.pdf . As with the proposed rule, this final rule allows schools to use fresh, frozen, and canned products to meet the vegetable requirement. Schools have access to nutritious vegetable choices through USDA Foods. For example, USDA Foods offers only reduced sodium canned vegetables at no more than 140 mg of sodium per half-cup serving, which is in line with the 2010 Dietary Guidelines. Schools also have the option to order frozen vegetables with no added salt, including green beans, carrots, corn, peas, and sweet potatoes. Accordingly, this final rule implements the proposed vegetables requirements, with modifications, and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Vegetable requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g). Grains Proposed Rule: Offer at least a daily serving of grains at breakfast and lunch. When this rule is initially implemented, at least half of the grains offered during the week must be whole grain-rich. Two years after implementation, all grains offered during the week must be whole grain-rich. In addition, allow schools the option to offer up to one serving of a grain-based dessert daily to meet part of the weekly grains requirement. Comments: Many commenters, primarily nutrition and health advocates, and parents, favored introducing a whole grains requirement in the NSLP and SBP. A number of program operators, however, objected to the final whole grains requirement (that all grains offered must be whole grain-rich), and stated that the initial requirement (at least half of grains offered must be whole grain-rich) is sufficient. These commenters asserted that prohibiting all refined grains would restrict many grains that children and adolescents enjoy such as white rice and white bread. Other program operators that objected to the final whole grains requirement expressed concern with the timeline and the higher food costs associated with using only whole grain-rich products, which they argued are generally more expensive than refined grain products. Many commenters asked that USDA clarify the criteria schools must use to identify whole grain-rich products. USDA Response: While children generally eat enough total grains, most of the grains they consume are refined grains rather than whole grains. Whole grains ( e.g., whole-wheat flour, oatmeal, whole cornmeal, and brown rice) are a source of nutrients such as iron, magnesium, selenium, B vitamins, and dietary fiber. Evidence suggests that eating whole grains in nutrient dense forms may lower body weight and reduce the risk of cardiovascular disease. Currently, schools may offer enriched or whole grains, and are allowed to offer enriched, refined grains only. Therefore, this final rule establishes a minimum whole grain-rich requirement in the NSLP and SBP to help children increase their intake of whole grains and benefit from the important nutrients they provide. For the NSLP, the whole grain requirement takes effect upon implementation of the rule. Therefore, in SY 2012-2013 and SY 2013-2014 (the first two years of implementation) whole grain-rich products must make up half of all grain products offered to students. During this time only, refined-grain foods that are enriched may be included in the lunch menu. In SY 2014-2015 (the third year of implementation) and beyond, schools must offer only whole grain-rich products. In the SBP, this final rule provides that schools must offer the weekly grain ranges and half of the grains as whole grain-rich beginning July 1, 2013 (SY 2013-2014, the second year of implementation). All grains offered in the SBP must be whole grain-rich in SY 2014-2015 (the third year of implementation) and beyond. Once schools meet the daily minimum grain quantity required (1 oz. eq. for all age-grade groups) for breakfast, they are allowed to offer a meat/meat alternate in place of grains. The meat/meat alternate can count toward the weekly grains requirement (credited as 1 oz. eq. of meat/meat alternate is equivalent to 1 oz. eq. of grain). This modification is intended to retain the flexibility that menu planners currently have to offer a combination of grains and meats/meat alternates at breakfast. This final rule eliminates the proposed provision to require a meat/meat alternate daily at breakfast due to the cost concerns voiced by program operators. (For more details, please see the discussion on meat/meat alternate.) In this final rule, to receive credit in the meal programs, a whole grain-rich food must contain at least 51 percent whole grains and the remaining grain content of the product must be enriched. Because current labeling regulations and practices may limit the school's ability to determine the actual whole grain content of many grain products, schools would use both elements of the following criterion to identify whole grain-rich foods. This is consistent with USDA's approach on whole grains in the HealthierUS School Challenge (HealthierUS School Challenge Whole-Grains Resource, http://teamnutrition.usda.gov/healthierUS/NFSMI/lesson2handouts.pdf ). Therefore, until the whole grain content of food products is required on a product label by the Food and Drug Administration (FDA), schools must evaluate a grain product according to forthcoming FNS guidance as follows: Element #1. A serving of the food item must meet portion size requirements for the Grains/Breads component as defined in FNS guidance. And Element #2. The food must meet at least one of the following: a. The whole grains per serving (based on minimum serving sizes specified for grains/breads in FNS guidance) must be ≥ 8 grams. This may be determined from information provided on the product packaging or by the manufacturer, if available. Also, manufacturers currently may apply for a Child Nutrition Label for qualifying products to indicate the number of grains/breads servings that are whole grain-rich. b. The product includes the following Food and Drug Administration (FDA)-approved whole grain health claim on its packaging. “Diets rich in whole grain foods and other plant foods and low in total fat, saturated fat and cholesterol may reduce the risk of heart disease and some cancers.” c. Product ingredient listing lists whole grain first, specifically: I. Non-mixed dishes (e.g., breads, cereals): Whole grains must be the primary ingredient by weight (a whole grain is the first ingredient in the list). II. Mixed dishes (e.g., pizza, corn dogs): Whole grains must be the primary grain ingredient by weight (a whole grain is the first grain ingredient in the list). For foods prepared by the school food service, the recipe is used as the basis for a calculation to determine whether the total weight of whole grain ingredients exceeds the total weight of non-whole grain ingredients. Several commenters noted that the industry standard of identity for whole grain products is 14.75 grams, while the IOM recommendations for school meals were based on 16 grams per serving. They suggested that schools be permitted to round up to the nearest quarter on gram equivalents in products. USDA will continue to provide SAs and schools guidance on this subject. Many program operators expressed concern about the increased quantity of food offered to children. The weekly grains quantity for the NSLP is reduced to 8-9 oz. eq. for age/grade group K-5, to 8-10 oz. eq. for age/grade group 6-8, and to 10-12 oz. eq. for age/grade group 9-12. This grains requirement still reflects the Dietary Guidelines' recommendation to increase consumption of whole grains as half of all grains offered must be whole grain-rich during the first two years of implementation, and all grains must be whole grain-rich thereafter. Commenters also expressed concerns regarding the cost and availability of whole grain-rich products. USDA would like to emphasize that such products are now available through USDA Foods, including: brown rice; parboiled brown rice; rolled oats; whole-wheat flour; whole-grain kernel corn; and whole-grain rotini, spaghetti, and macaroni. This final rule modifies the provision in the proposed rule to allow schools the option to meet part of the weekly grains requirement with grain-based desserts. USDA had proposed to allow up to one serving of grain-based dessert per day to allow additional opportunities to incorporate whole grains in the lunch menu. However, the 2010 Dietary Guidelines cite grain-based desserts as a significant source of solid fats and added sugars in Americans' diets. Therefore, this final rule reduces the number of allowable grain-based desserts from five to two per school week, as recommended by several commenters. Accordingly, this final rule implements the proposed grains requirements and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Grains requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g). Meats/Meat Alternates Proposed Rule: Offer a meat/meat alternate at lunch and breakfast daily to meet weekly requirements. Solicit comments on whether or not the meat/meat alternate component should include the three protein food subgroups recommended by the 2010 Dietary Guidelines: (1) Seafood; (2) meat, poultry, and eggs; and (3) nuts, seeds, and soy products. Solicit comments on whether or not tofu should be an allowable meat alternate and a methodology for crediting commercially prepared tofu. Comments: A few commenters, primarily health advocates, expressed support for the overall meat/meat alternate requirement. They supported the proposed rule's emphasis on lean sources of protein and on lower-sodium meats/meat alternates. Several commenters, however, indicated that applying a weekly meat/meat alternate requirement, rather than a daily source of protein, might decrease the estimated meal cost and increase menu planning flexibility. Many of the public comments focused on the proposed requirement to offer a meat/meat alternate daily at breakfast. Commenters who favored the proposal stated that a breakfast with a meat/meat alternate would provide greater satiety and help increase the protein intake for children that do not drink milk. They said the protein requirement would result in a more nutritious and balanced breakfast. However, many school districts expressed concerns about offering a daily meat/meat alternate at breakfast. Several of these commenters argued that there is insufficient scientific support for the proposed meat/meat alternate requirement at breakfast. Others asserted that the daily requirement would be costly, create logistical difficulties and food safety challenges for schools, make it difficult for schools to achieve the new sodium limits, and discourage new breakfast modalities and school participation in the SBP. Some also noted that children in most schools have very limited time to eat breakfast and offering more food would result in increased plate waste. A few commenters also expressed concerns about the availability of meat/meat alternate products that will enable schools to offer meals that meet the dietary specifications for sodium, saturated fat, and trans fat. A commenter asked whether USDA Foods is able to provide low-sodium processed meats, cheeses, and other meat/meat alternate products. Commenters had different opinions on whether or not the meal pattern should require that schools offer the specific protein food subgroups identified in the 2010 Dietary Guidelines. Those in favor stated that it would diversify students' diet and provide health benefits. Those against it said that requiring protein food subgroups would be cost-prohibitive to many schools and that it might not be feasible in certain geographical areas. They also indicated that many parents do not recognize nuts, seeds, and soy products as a substitute for meats. Many commenters suggested that USDA allow schools to offer tofu as a meat/meat alternate. A range of stakeholders, including SAs, nutrition professionals, advocacy organizations, and individual commenters, expressed support for allowing commercially prepared tofu in the school meal programs. Some commenters suggested a methodology for crediting commercially prepared tofu as a meat alternate. The predominant approach suggested is that USDA credit tofu based on the grams of protein per ounce equivalent. USDA Response: This final rule implements the meat/meat alternate requirements for the NSLP as proposed. Schools must offer at least a minimum amount of meat/meat alternate daily (2 oz eq. for students in grades 9-12, and 1 oz eq. for younger students), and provide a weekly required amount for each age/grade group. Offering a meat/meat alternate daily as part of the school lunch supplies protein, B vitamins, vitamin E, iron, zinc, and magnesium to the diet of children, and also teaches them to recognize the components of a balanced meal. Menu planners are encouraged to offer a variety of protein foods ( e.g., lean or extra lean meats, seafood, and poultry; beans and peas; fat-free and low-fat milk products; and unsalted nuts and seeds) to meet the meat/meat alternate requirement. The Department is mindful of the cost and operational concerns expressed by schools and other stakeholders regarding the proposed meat/meat alternate component in the SBP. Previously, schools have had the flexibility to offer one serving each of grains and meat/meat alternate, or two servings of either one at breakfast. We have seen a steady increase in the number of schools participating in the SBP and more schools are offering breakfast in the classroom and other creative delivery options. Therefore, this final rule retains some flexibility offered by the grains and meat/meat alternate combination available in the current SBP meal pattern, and does not require a daily meat/meat alternate in the SBP. Menu planners may offer a meat/meat alternate in place of grains after the minimum daily grains requirement is met. For example, for the K-5 age-grade group, the SBP minimum daily grain requirement is 1 oz. eq. As long as at least 1 oz. eq. of grain is served as part of the breakfast menu, a meat/meat alternate may also be served. The meat/meat alternate may count toward meeting the weekly grains requirement. For crediting, 1 oz. eq. of meat/meat alternate is equivalent to 1 oz. eq. of grains. As suggested by many stakeholders, this final rule gives schools the option to offer commercially prepared tofu as a meat alternate in the NSLP and SBP. This provision, which is codified under § 210.10(c)(2)(i)(D) of the regulatory text for the NSLP, allows schools to diversify the sources of protein available to students and better meet the dietary needs of vegetarians and culturally diverse groups in schools. Although tofu does not have an FDA standard of identity, the Dietary Guidelines recognize plant-based sources of protein such as tofu. USDA will continue to provide SAs and schools guidance on this issue. USDA wishes to clarify that schools have the option to offer mature beans and dry peas ( e.g., kidney beans, pinto beans, black beans, garbanzo beans/chickpeas, black-eyed peas, split peas and lentils) as meat alternates. Mature beans and peas dry longer on the plant, fix more nitrogen, and have a higher protein content, which makes them nutritionally comparable to protein foods. They are also excellent sources of other nutrients such as iron and zinc. Because beans and peas are similar to meats, poultry, and fish in their contribution of these nutrients, they can be credited as a meat alternate. Note that a serving of beans and peas must not be offered as a meat alternate and as a vegetable in the same meal. Some foods commonly referred to as beans and peas ( e.g., green peas, green lima beans, and green (string) beans) are not considered part of the beans and peas subgroup because their nutrient profile is dissimilar. For more information about the use and categorization of beans and peas see http://www.choosemyplate.gov/foodgroups/proteinfoods_beanspeas.html. Schools also have discretion to offer ready-to-eat foods such as cold cuts, cheese, and yogurt to meet the meat/meat alternate component. Regardless of the protein foods offered, schools must plan all meals with the goal to meet the dietary specifications for sodium, saturated fat, trans fat, and calories. When selecting protein foods that are affordable and easy to prepare, we strongly encourage menu planners to use low-fat and low-sodium products that contribute to improved nutrient intake and health benefits ( e.g., fat-free/low-fat yogurt and unsalted nuts and seeds). To support school meal improvements, USDA Foods has reduced the upper salt limit on mozzarella cheese from 2 percent to 1.6 percent. The current range for mozzarella is 130-175 mg of sodium per 28 g (1 oz.) serving. The sodium in processed and blended cheeses has been reduced from 450 milligrams or more, to between 200 and 300 milligrams per 28 g (1 oz.) serving, which is closer to the sodium levels found in natural cheeses. USDA had solicited comments on whether schools should be required to offer the protein food subgroups recommended by the 2010 Dietary Guidelines. In response to program operators' concerns, this final rule does not require the three protein food subgroups recommended by the 2010 Dietary Guidelines. However, USDA is developing technical assistance to assist schools in offering students a variety of protein foods consistent with the Dietary Guidelines. Accordingly, this final rule implements the proposed meat/meat alternate requirements, with modifications, and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Meat/meat alternate requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g). Fluid Milk Proposed Rule: Offer plain or flavored fat-free milk and unflavored low-fat milk (1 percent milk fat or less), and include variety that is consistent with Dietary Guidelines recommendations. Comments: Many parents and nutrition and health advocates favored the proposed requirement to limit flavor to fat-free milk. They believe that saturated fat and sugar in children's diets can be reduced by restricting milk choices to fat-free and low-fat, and by limiting flavor to fat-free milk. Several commenters stated that schools have already limited flavor to fat-free milk and student acceptability has been good. Some commenters recommended a total ban on flavored milk and argued that several states are in the process of banning flavored milk. However, more commenters stated that flavored low-fat (1 percent or 1/2 percent) milk should be allowed. Many of these cited a lack of availability of flavored fat-free milk. Others were concerned that poor student acceptability of flavored fat-free milk could result in lower milk consumption or participation in the school meal programs. Some commenters said that the amount of extra calories and fat in low-fat flavored milk is not significant enough to warrant allowing only flavored fat-free milk. A few asked that USDA phase in the limit on flavored milk, and others suggested that USDA set a maximum level of added sugar in flavored milk instead of allowing flavor only in fat-free milk. Several commenters addressed the need to accommodate lactose-intolerant students and, others requested USDA to clarify milk variety in school meals. Also, although the proposed rule did not address meal variations for special dietary reasons, some commenters discussed the nutrition standards for non-dairy milk substitutes ( e.g., soy drinks) and other miscellaneous topics related to the milk component, including OVS. USDA Response: This final rule allows flavor in fat-free milk only, and fat-free and low-fat choices only (consistent with Dietary Guidelines recommendations and the NSLA as amended by the HHFKA). Flavored low-fat (1 percent or 1/2 percent) milk is not allowed in the NSLP or the SBP upon implementation of the rule in SY 2012-2013 because it contributes added sugars and fat to the meal and would make it more difficult for schools to offer meals that meet the limits on calories and saturated fat. We anticipate that the new calorie limits will lead menu planners to select milk with the lowest levels of added sugar. Implementing calorie maximums gives menu planners more flexibility than limiting added sugar. Schools already have the option to offer lactose-free and reduced-lactose milk (fat-free and/or low-fat) as part of the reimbursable meal. Offering lactose free/reduced milk (fat-free or low-fat) is allowed and counts toward the milk variety requirement established by in the NSLA by the HHFKA. For the NSLP and SBP, variety (at least two choices of milk) can be accomplished by offering different allowable fat levels (fat-free and low-fat) and milk flavor in fat-free milk only. For additional guidance on milk variety, please see the FNS memorandum SP-29-2011, Child Nutrition Reauthorization: Nutrition Requirements for Fluid Milk, dated April 14, 2011.) The milk fat restriction established by this final rule also applies to the meals for children in the age group 3-4 even though the meal patterns for preschoolers will be updated later through a separate rule. The amendments made to the NSLA by the HHFKA require fat-free and low-fat milk for all school lunches. Although this change was not addressed in the proposed rule due to the timing of publication, USDA notified program operators of this requirement for all school meals through implementation memorandum SP-29-2011. The milk flavor restriction also extends to the milk offered to children in age group 3-4. As requested by commenters, we wish to clarify that this final rule does not change the nutrition standards for the optional non-dairy drinks offered to students with special dietary needs (not disabilities) in place of milk at the request from parents. Those products ( e.g., soy, rice and almond drinks) are offered as meal exceptions on a case by case basis and are not intended for general consumption with the school meal. The nutrition standards for non-dairy milk substitutes for children without disabilities were established through a separate final rule “Fluid Milk Substitutions in the School Nutrition Program,” which was published in the Federal Register (73 FR 52903) on September 12, 2008. Those standards do not include fat or flavor/sugar restrictions. We also wish to clarify that although fluid milk must be offered with every school meal, students may decline milk under OVS. In addition, water may not be offered in place of fluid milk as part of the reimbursable meal, but must be available in the food service area for students who wish to drink it in accordance with the NSLA as amended by the HHFKA and as discussed in the memorandum “SP-28-2011 Revised Child Nutrition Reauthorization 2010: Water Availability During National School Lunch Program Meal Service” dated July 12, 2011. Accordingly, this final rule implements the proposed milk requirements and codifies them under § 210.10(d) for the NSLP and under § 220.8(d) for the SBP. Dietary Specifications Calories Proposed Rule: Offer lunches and breakfasts that supply, on average over the school week, a number of calories that is within the established minimum and maximum levels for each age/grade group. Comments: Many commenters agreed in general with the proposal to establish minimum and maximum calorie levels, and were particularly supportive of the maximum calorie levels. These commenters included advocacy organizations, food banks, a health department, a professional association, and an industry association. Many stated that setting minimum and maximum calorie levels along with providing nutrient dense meals will help address food insecurity and obesity concerns. A few commenters said many students are not active enough and recommended lower calorie limits. Others, however, indicated that the proposed maximum calorie limits for school lunch might not be adequate to meet the dietary needs of taller and active students. Several commenters asserted that the calorie levels must be adequate enough to support the dietary needs of children who may not have access to sufficient food outside of school. There is also a concern among commenters about the ability of schools to adhere to the minimum and maximum calorie limits in the absence of a nutritional analysis. In order to control calorie intake, some commenters suggested that USDA establish limits on added sugars for products such as such ready-to-eat cereal, grain-based desserts, and dairy-based desserts to improve the diet of school children. A few commenters, including an advocacy organization, suggested adopting the World Health Organization's recommendation to limit added sugars to “no more than 10 percent of a person's daily caloric intake.” An advocacy organization and a professional association of health nutrition directors suggested adopting the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) breakfast standard, which sets the added sugars limit to no more than 6 grams of sugars per ounce of dry cereal. USDA Response: This final rule is intended to respond to serious concerns about childhood obesity, and the importance for children to consume nutritious school meals within their calorie needs. Therefore, this rule implements the proposed minimum and maximum calorie levels for each grade group. In the NSLP, the calorie limits for each age/grade group take effect upon implementation of this final rule. In the SBP, however, calorie limits are not implemented until the SY 2013-2014 (the second year of implementation). This modification from the proposed rule is intended to give program operators additional time to implement the new meal requirements in the SBP. USDA acknowledges the school meal programs provide a nutrition safety net for food-insecure children and agrees with commenters that meals must supply adequate calories for growth and development. IOM considered this aspect of the Child Nutrition Program missions when developing the minimum and maximum calorie levels for various age/grade groups in the NSLP and SBP. They also took into consideration other opportunities for food intake available to most children outside of school, and the role of community organizations and other groups in supporting the nutritional needs of low-income children. Although some commenters suggested setting a limit on added sugars for products such as flavored milk, USDA, consistent with the Institute of Medicine recommendations, does not believe a standard is necessary and would unnecessarily restrict menu planning flexibility. The required maximum calorie levels are expected to drive menu planners to select nutrient dense foods and ingredients to prepare meals, and avoid products that are high in fats and added sugars. In addition, this final rule includes other provisions that limit the sources of discretionary calories. We also wish to clarify that the calorie standards established for each age/grade group are to be met on average over the course of the week. On any given school day, the calorie level for the meal may fall outside of the minimum and maximum levels as long as the average number of calories for the week is within the required range. This provides some flexibility to menu planners, but careful procurement, planning and preparation are important to stay within the calorie ranges. Accordingly, this final rule implements the proposed calorie requirements and codifies them under § 210.10(f) for the NSLP and under § 220.8(f) for the SBP. Calorie requirements applicable to the SBP in SY 2012-2013 are under § 220.23(b) and § 220.23(c). Saturated Fat Proposed Rule: Offer lunches and breakfasts that supply, on average over the school week, less than 10 percent of total calories from saturated fat. Comments: Most commenters concerned about childhood obesity also expressed general support for limiting saturated fat in school meals at less than 10 percent of total calories. This is the same as the current saturated fat restriction and the 2010 Dietary Guidelines did not change this recommendation. A small number of commenters (a health care professional, a member of academia, and an advocacy organization) suggested a more restrictive standard, recommending that USDA require less than 7 percent of total calories from saturated fat. This limit is listed in the Dietary Guidelines Advisory Committee report but was not adopted as a recommendation in the 2010 Dietary Guidelines. USDA Response: This final rule implements the proposed saturated fat standard, which is the same as the restriction currently in place in the NSLP and SBP. Schools must continue to limit saturated fat in the school meals to help reduce childhood obesity and children's risk of cardiovascular disease later in life. Many schools are still having difficulty meeting this requirement in the NSLP. Several major sources of saturated fat in the American diet are popular items in the lunch menu. This final rule implements two new requirements set forth in the proposed rule and are anticipated to encourage schools to reduce the saturated fat in meals: allowing only fat-free and low-fat milk, and establishing maximum calorie limits. USDA's technical assistance will continue to emphasize the need to purchase and prepare foods in ways that help reduce the saturated fat level in school meals ( e.g., procuring skinless chicken or using meat from which fat has been trimmed, and using vegetable oils that are rich in monounsaturated and polyunsaturated fatty acids such as canola and corn oils). This rule does not require schools to meet a total fat standard under current regulations. The IOM report did not recommend that USDA require a total fat standard for school meals. The expectation is that the new meal requirements, including the dietary specifications for calories, saturated fat and trans fat, will enable schools to offer meals that are low in total fat. Accordingly, this final rule implements the proposed saturated requirement and codifies it under § 210.10(f) for the NSLP and under § 220.8(f) for the SBP. Sodium Proposed Rule: Offer lunches and breakfasts that supply, on average over the school week, no more than the maximum sodium levels set for each age/grade group. Meet the intermediate sodium targets (two and four years post implementation of the rule), and the final sodium targets (ten years post implementation of the rule; changes represent a sodium reduction of approximately 25-50 percent in breakfasts and lunches). The proposed targets aimed to help reduce students' sodium intakes to less than the Tolerable Upper Intake Levels established in the Dietary Reference Intakes, which range from 1,900-2,300 milligrams per day for children ages 4-18. Comments: Nutrition and health advocates, community-action groups, individuals, and some school districts expressed support for the proposed sodium restrictions and timeline. A medical association and an advocacy organization supported the proposed sodium restriction to help address the health risks associated with high sodium intake. A professional association recommended that USDA consider further reductions in sodium limits after progress has been assessed. An advocacy organization suggested that USDA base the proposed restrictions on the Dietary Guidelines recommendation of 1,500 mg of sodium per day for special population groups. The 2010 Dietary Guidelines recommend that persons who are 51 years and older, African American children and adults, and persons of any age that have hypertension, diabetes, or chronic kidney disease limit sodium intake to 1,500 mg per day (compared to the 2,300 mg per day recommended for the general population). However, many commenters were concerned that schools will likely struggle to meet the proposed intermediate sodium limits and fail to achieve the final target within 10 years. Some commenters asserted that the final targets for each age/grade group are lower than the therapeutic levels set for certain high-risk populations and should be increased. A school advocacy organization and school districts argued that it would be difficult for schools to prepare palatable foods at the proposed final sodium targets and, therefore, students would be motivated to drop from the meal program and pack lunches that contain high levels of sodium. Some commenters expressed concerns about the potential use of sodium substitutes in schools. Commenters also indicated that industry needs time for product development and testing, and schools need time for procurement changes, menu development, sampling, and to foster student acceptance. Two food manufacturers commented that pizza manufacturers would need to complete research in order to secure low sodium cheeses that adhere to the proposed final target and that children like. Some argued that many schools rely on canned and processed food items and have limited access to reduced-sodium products. School food service staff, a food manufacturer, a nutrition professional and individual commenters suggested that USDA lengthen the time to reach the intermediate sodium targets, and eliminate or reevaluate the final target. Commenters also encouraged USDA to monitor the progress of sodium reductions toward targets before moving forward. Some offered various alternatives to the proposed sodium limits and timeline ( e.g., a food manufacturer suggested 33 percent reduction over ten years and a school food service staff member suggested 30 percent over ten years). Several commenters suggested a 10-20 percent reduction over ten years to allow schools to continue purchasing affordable processed foods while working on recipe modification, in order to reduce food costs and potential loss of student participation. Others recommended establishing daily limits for each school meal ( e.g., 1,000-1,200 mg/day for lunch and 1,000 mg/day for breakfast). Some school districts and a child nutrition consultant stated that there is not enough scientific data linking sodium consumption with health issues in children, and did not agree with claims that children's early exposure to sodium leads them to develop a preference for salty foods. A child nutrition consultant, a school nutrition directors' association, a professional association, and a school district argued that further studies should be conducted so that the final target levels are science-based. USDA Response: Reducing the sodium content of school meals is a key objective of this final rule reflecting the Dietary Guidelines recommendation for children and adults to limit sodium intake to lower the risk of chronic diseases. USDA has encouraged schools to reduce sodium since the implementation of the School Meals Initiative in 1995. According to the SNDA-III study, the average sodium content of school lunches (for all schools) remains high: More than 1400 mg. Therefore, this final rule requires schools to make a gradual reduction in the sodium content of the meals, as recommended by IOM and consistent with the requirements of the FY 2012 Agriculture Appropriations Act. Schools will be required to meet the first intermediate sodium target for each age/grade group (target 1 in the chart) in the NSLP and SBP no later than July 1, 2014 (SY 2014-2015), two years post implementation of this final rule. To meet target 1, schools are expected to modify menus and recipes promptly to reduce the sodium content of school lunches by approximately 5-10 percent from their baseline. Prior to the implementation of the second (target 2) and final sodium targets contained in this rule, USDA will evaluate relevant studies on sodium intake and human health, as required by Section 743 of the FY 2012 Agriculture Appropriations Act. The scheduled compliance date for target 2 is no later than July 1, 2017 (SY 2017-2018), five years post implementation of the final rule for both meal programs. In response to stakeholders' concerns, and the provisions of Section 743 of the FY 2012 Agriculture Appropriations Act, this final rule lengthens the time to reach the second intermediate targets from 4 to 5 years. This modification to the sodium proposal is intended to allow food manufacturers additional time to reformulate products and schools more time to build student acceptance of lower sodium meals. To meet target 2, schools have to reduce sodium in school lunches by approximately 15-30 percent from their baseline. We anticipate schools will have to incorporate new low-sodium products and ingredients in meals offered in order to meet this target. The scheduled compliance date for the final sodium targets is no later than July 1, 2022 (SY 2022-2023), ten years post implementation of the final rule. To meet the final sodium target, schools will have to reduce the sodium content of the meals by approximately 25-50 percent from the school baseline. This will require innovation on the part of product manufacturers in the form of new technology and/or food products. As required by Section 743 of the FY 2012 Agriculture Appropriations Act, USDA will certify that it has evaluated relevant data on sodium intake and human health prior to requiring compliance with the second and final sodium targets. Meeting the final sodium targets will enable schools to offer meals that reflect the 2010 Dietary Guidelines' recommendation to limit sodium intake to less than 2,300 mg per day. Nearly all schools have to reduce the sodium content of school meals to meet final sodium targets, but the extent of the needed reduction varies by school/district as sodium limits for school meals do not currently exist. The following chart illustrates the sodium reduction in school meals: Age/grade group Baseline: Current average sodium levels as offered 1 (mg) Sodium reduction: Timeline and amount Target 1: meet by July 1, 2014 (SY 2014-2015) (mg) Target 2: meet by July 1, 2017 (SY 2017-2018) (mg) Final target: 2 Meet by July 1, 2022 (SY 2022-2023) (mg) Percent change (current levels vs. final targets) School Breakfast Program K-5 573 (elementary) ≤ 540 (28.4% of UL) ≤ 485 (25.5% of UL) ≤ 430 (22.6% of UL) −25 6-8 629 (middle) ≤ 600 (27.3% of UL) ≤ 535 (24.3% of UL) ≤ 470 (21.4% of UL) −25 9-12 686 (high) ≤ 640 (27.8% of UL) ≤ 570 (24.8% of UL) ≤ 500 (21.7% of UL) −27 National School Lunch Program K-5 1,377 (elementary) ≤ 1,230 (64.8% of UL) ≤ 935 (49.2% of UL) ≤ 640 (33.7% of UL) −54 6-8 1,520 (middle) ≤ 1,360 (61.8% of UL) ≤ 1,035 (47.0% of UL) ≤ 710 (32.3% of UL) −53 9-12 1,588 (high) ≤ 1,420 (61.7% of UL) ≤ 1,080 (47.0% of UL) ≤ 740 (32.2% of UL) −53 1 Current Average Sodium Levels as Offered are from the School Nutrition and Dietary Assessment Study-III. Data were collected in the 2004-05 school year. 2 The IOM final targets are based on the Tolerable Upper Intake Limits (ULs) for sodium, established in the Dietary Reference Intakes (DRI) (IOM, 2004). The sodium ULs for school-aged children are 2,300 mg (ages 14-18), 2,200 mg (ages 9-13), and 1,900 mg (ages 4-8). The final sodium targets represent the UL for each age/grade group multiplied by the percentage of nutrients supplied by each meal (approximately 21.5% for breakfast, 32% for lunch), as recommended by IOM. IOM's recommended final sodium targets for the K-5 age/grade group breakfasts and lunches are slightly higher than 21.5% and 32% 32%, respectively, of the UL because this proposed elementary school group spans part of two DRI age groups (ages 4-8 and 9-13 years). USDA is committed to helping program operators reduce sodium in school menus. USDA's Team Nutrition and the National School Food Service Management Institute have developed guidance for reducing sodium. USDA also continues to make low-sodium USDA Foods available to schools. For example, USDA offers only reduced sodium canned beans and vegetables at no more than 140 mg per half-cup serving, including spaghetti sauce, salsa, and tomato paste. Canned whole kernel corn, whole tomatoes, and diced tomatoes are being offered with no added salt. Frozen vegetables, including green beans, carrots, corn, peas, and sweet potatoes are available with no added salt. USDA has also reduced the upper salt limit on mozzarella cheese (current range is 130-175 mg of sodium per 1 oz. serving) and chicken fajita strips (220 mg per 2 oz serving). Accordingly, this final rule implements the proposed sodium limits, with modifications, and codifies them under § 210.10(f) for the NSLP and under § 220.8(f) for the SBP. Tracking Calories, Saturated Fat, and Sodium Proposed Rule: State agencies must monitor compliance with the dietary specifications (calories, saturated fat and sodium levels) by conducting a weighted nutrient analysis for the schools selected for administrative review every 3 years. The analysis must cover menu and production records for a 2-week period. Comments: Commenters did not specifically address the proposal to combine the nutritional assessment of school meals with the administrative review for stronger program accountability. Overall, health and child nutrition advocates welcomed the new SA requirement to conduct administrative reviews every 3 years, which is codified through this final rule. They also agreed in general that reviewing menu and production records for a 2-week period and conducting a weighted nutrient analysis offer a more accurate assessment of school meals than current regulations. However, State and local program operators expressed concern about the requirement to conduct administrative reviews every 3 years. Several commenters stated that SAs have limited time and resources to conduct more frequent administrative reviews and provide technical assistance to all SFAs. In addition, school districts, SAs, trade associations, advocacy organizations and others opposed removing responsibility to conduct a nutrient analysis from the SFAs, believing this change limit the SFAs' ability to assess their own efforts to reduce sodium and saturated fat, and comply with the calorie ranges. Other commenters also opposed the requirement for a weighted nutrient analysis because it would not identify issues in menu planning or reflect what students actually consume. Several commenters requested that a tool be developed for SAs to identify issues and help implement the new meal requirements for schools. USDA Response: The HHFKA amended the NSLA to require improvements to school meals and more frequent monitoring of school meals to facilitate transition to the new meal requirements. This rule requires SAs to begin the 3-year Coordinated Review Effort (CRE) cycle on July 1, 2013 (SY 2013-2014) for the NSLP and SBP. To help SAs meet this requirement, USDA will develop technical assistance tools to facilitate monitoring of school meals. This rule requires SAs to conduct the nutrient analysis of school lunches and breakfasts as part of the administrative review, but does not limit SFA discretion to conduct a nutrient analysis of the school meals to determine if they are in line with the dietary specifications. We understand that many SFAs currently have the ability to conduct a nutrient analysis. USDA is mindful of SA concerns about increased administrative burden. In response to concerns about the requirement to conduct a nutrient analysis of school meals using menus for a two-week period, this final rule reduces the time period to one-week, which is the current requirement. This modification to the proposed rule is expected to lessen the information collection burden on SAs without affecting their ability to assess the nutritional integrity of the meals offered and the general quality of the food service operation. Accordingly, this final rule implements the proposed monitoring requirements, with modifications, and codifies them under § 210.18(c), § 210.18(g)(2), § 210.18(i)(3), § 210.18(m), and § 210.19(c) for the NSLP and under § 220.8(h), § 220.8(i), and § 220.8(j) for the SBP. Tracking Trans Fat Proposed Rule: Food products and ingredients used to prepare school lunches and breakfasts must contain zero grams of trans fat per serving (less than 0.5 grams per serving) according to the nutrition labeling or manufacturer's specifications. Comments: Many commenters, including advocacy organizations, schools, health care professionals, community organizations and others expressed support for the proposal to restrict trans fat in school meals. Several of them asked that naturally-occurring trans fat be excluded from the trans fat limit. A few commenters suggested that the trans fat limit be greater than zero due to concerns over potential increased use of hydrogenated oils and saturated fats in school meals. No commenters opposed the proposal to restrict trans fat. USDA Response: A number of studies suggest an association between trans fatty acid intake and increased risk of cardiovascular disease. The Dietary Guidelines recommend that all persons keep trans fatty acid consumption as low as possible by limiting foods that contain synthetic sources of trans fats, such as partially hydrogenated oils, and by limiting other solid fats. Therefore, to safeguard children's health, this final rule requires that food products and ingredients used to prepare school meals contain zero grams of added trans fat per serving (less than 0.5 grams per serving as defined by FDA) according to the nutrition labeling or manufacturer's specifications. This requirement takes effect in the NSLP on July 1, 2012 (SY 2012-2013). In the SBP, the requirement is effective on July 1 2013 (SY 2013-2014, the second year of implementation). This requirement is intended to restrict synthetic trans fatty acids and does not apply to naturally occurring trans fats, which are present in meat and dairy products. Synthetic trans fatty acids are found in partially hydrogenated oils used in some margarines, snack foods, and prepared desserts. See USDA Foods guidance on trans fat at http://www.fns.usda.gov/fdd/facts/nutrition/TransFatFactSheet.pdf. Accordingly, this final rule implements the proposed trans fat restriction and codifies it under § 210.10(g) § 210.10(h) and § 210.10(j), for the NSLP and under § 220.8(g), § 220.8(h), and § 220.8(j) for the SBP. Standards for Meals Selected by the Student (Offer versus Serve (OVS) Proposed Rule: Under OVS, students may not decline more than two food items at lunch and one food item at breakfast, and must select a fruit or a vegetable at each meal. Comments: Many commenters expressed their views about this proposed requirement. Nutrition and health advocates, a professional association, a State department of health, some school districts and food service staff, and individuals expressed support for the proposed requirement to require a fruit or a vegetable as part of the reimbursable meal. They viewed this requirement as a means to encourage children to eat more fruits and vegetables. An advocacy group commented that requiring students to take a fruit or a vegetable should help increase actual fruit and vegetable consumption citing a pilot study in which more students consumed fruit when prompted to take a fruit item. However, many commenters expressed concerns about potential food waste and overall costs associated with this proposed requirement. The commenters that opposed this proposal included a State department of education, school districts, school food service staff, school advocacy organizations, a teachers union, students, a child nutrition industry consultant, a food manufacturer, food service industry firms, nutrition professionals, and individuals. Generally, these commenters argued the proposed requirement that a reimbursable meal include a fruit or a vegetable would result in increased plate waste and increased cost by requiring students to choose a food they do not intend to eat. School food service staff also argued that indirect costs such as more frequent trash collection would increase if the students throw away more food. These commenters asserted that this proposed requirement would negate the purpose of OVS. Commenters asked USDA to clarify the minimum amount of fruit or vegetable that a student must take for a reimbursable meal. Many commenters suggested that USDA allows students to select less than the full fruit or vegetable component under OVS. Suggestions included a minimum of 1/2 cup, 1/4 cup, and 1/8 cup of fruit or vegetable for a reimbursable meal. USDA Response: Increased vegetable and fruit intake is a key recommendation of the Dietary Guidelines. This recommendation applies to the NSLP and SBP because these programs are intended to nourish children but also help them develop healthy eating patterns. By requiring students to take a fruit or a vegetable, schools emphasize food choices that are high in nutrients and low in calories. Therefore, consistent with the Dietary Guidelines and the IOM recommendations, this final rule requires that the reimbursable lunch selected by the student includes a fruit or a vegetable beginning SY 2012-2013. In the SBP, this requirement is effective in SY 2014-2015 (the third year of implementation), when the fruit quantities for breakfast are required to increase. However, in response to the commenters' concerns about potential food waste and cost increases, this final rule allows students to take 1/2 cup of a fruit or a vegetable as suggested by several commenters, rather than the full component, to have a reimbursable meal under OVS. For example, if a school is offering 1/2 cup of fruit pieces and 1/2 cup fruit juice to meet the 1 cup fruit component at lunch, the student must select at least one of those two items to have a reimbursable lunch under OVS. This rule continues the current OVS practice under FBMP to allow students to decline up to two food components at lunch (preferred OVS option presented in the IOM report). Some commenters suggested that USDA implement the second OVS option identified in the IOM report to allow students to decline more food components and, thus, have greater control of the amount of food on their plate. USDA is not adopting this suggestion. Although the second option would give school districts greater flexibility, it could negatively affect the nutritional integrity of the meal. In the SBP, OVS applies to food items rather than food components because of the flexibility to substitute meats/meat alternates for grains (once the daily grain requirement is met). In SBP, schools must offer fruit, milk, and grains daily. On multiple days per week, schools will need to offer more than the minimum daily grains requirement of 1 oz. eq. per day to meet the weekly grain requirement. To accomplish this, schools will need to offer at least three or four food items on the breakfast menu. When a school offers four food items at breakfast, students may decline one food item. If only three food items are offered, students must take all the food items to preserve the nutritional integrity of the breakfast. More details about OVS will be provided in guidance. Schools that offer salad bars must follow the OVS requirements. To ensure that students actually take the minimum required portion size from a salad bar, foods may be pre-portioned to allow staff to quickly identify if the student has a reimbursable meal under OVS. If not pre-portioning, then the cashier must be trained to judge accurately the quantities of self-serve items on student trays, to determine if the food item can count toward a reimbursable meal. For more information, see FNS memorandum SP 02-2010—Revised, dated January 21, 2011. Accordingly, this final rule implements the proposed requirements, with modifications, and codifies them under § 210.10(e) for the NSLP and under § 220.8(e) for the SBP. The OVS requirements applicable to the SBP in SY 2012-2013 are under § 220.23(e)(2) and § 220.23(g)(4). Monitoring Procedures Proposed Rule: • State agencies must review school lunches and breakfasts every three years during scheduled administrative reviews to monitor compliance with the meal requirements (meal patterns and dietary specifications for calories, saturated fat, sodium and trans fats). • State agencies must conduct a weighted nutrient analysis for the schools selected for an administrative review to monitor compliance with the specifications for calories, saturated fat, and sodium. The analysis must cover menu and production records for a two-week meal period. • State agencies must take immediate fiscal action if a required food component is not offered. • For repeat violations of the vegetable subgroup and milk requirements, State agencies must take fiscal action if technical assistance and corrective action have not resolved these violations. • For repeat violations of the food quantity and whole grain requirements, and the dietary specifications (calorie, sodium, saturated fat and trans fat), State agencies have discretion to take fiscal action if technical assistance and corrective action have not resolved these violations. Comments: Various commenters, including a health care association, State department of education, trade association, nutrition professional, food service staff, and advocacy organizations supported the proposal to eliminate the School Meals Initiative (SMI) review and monitor the nutritional quality of school meals through the scheduled administrative review. Although a few commenters expressed concern with eliminating the SMI review, several commenters voiced support for a single monitoring system. However, numerous commenters said that this proposal would not simplify monitoring because it increases the frequency of the review cycle and the meal review period, and requires SAs to conduct a nutrient analysis for the SFAs to determine compliance with the dietary specifications. Some commenters argued that SFAs would still have to conduct their own nutrient analysis to plan meals that meet the calorie, saturated fat, and sodium restrictions. They expressed concern that many food-based SFAs do not have the specialized tools to ensure compliance with the dietary specifications, and that SAs do not have enough time or resources to provide technical assistance to all SFAs. Although some commenters supported establishing a 3-year review cycle, most commenters opposed increasing the frequency of the administrative reviews. Those in favor of the proposal (health and nutrition advocates and providers) stated that it would increase opportunities to provide technical assistance to the SFAs and result in improved meals. Those opposed included school districts, food service management companies, school food service staff, a school advocacy organization, State departments of education, and nutrition professionals. These commenters argued that retaining the 5-year review cycle would give SAs more time to provide training and technical assistance to the SFAs. They indicated that SAs would not have the staff to handle the increased workload of a 3-year review cycle and, therefore, the quality of the reviews could suffer. Regarding the proposal to review menu and production records for a two-week meal period, most commenters expressed opposition. These commenters, including State and local operators, school food service staff, school advocacy organizations, professional associations, trade associations, and other groups argued that reviewing menus for one week is a reasonable amount of time to determine if an SFA is meeting the meal requirements. Some commenters estimated that the increased paperwork of a 3-year review cycle and a 2-week review of menus would triple the cost of completing the administrative review. There was a mixed response to the proposal to include breakfast in the administrative reviews. Commenters that agreed school breakfasts should be included argued that these meals often contain less nutrient-dense foods than lunch. A similar number of commenters opposed the proposal because of cost concerns. The latter group stated that the reviews should only include lunch to offset the increased time and effort involved in conducting reviews every 3 years rather than every 5 years. There were few and mixed opinions about the use of fiscal action. School food service staff argued that fiscal penalties are counterproductive and create an adversarial relationship between the SA and the SFA. They recommended that more emphasis be placed on providing technical assistance, not fiscal action. Other commenters favored increasing accountability to improve meal quality. Commenters offered some suggestions regarding monitoring procedures, including that SAs monitoring report be made available on-line to the public. Another suggested that SAs target schools with prior non-compliance rather that assess a broad sample of schools. USDA Response: Section 207 of the HHFKA amended the NSLA to require USDA to establish a unified monitoring system. Accordingly, this final rule eliminates the SMI review and strengthens the administrative review to assess compliance with the new meal requirements. As required by this rule, SAs must monitor compliance with the meal patterns and the dietary specifications (calories, saturated fat, sodium and trans fat) under the administrative review responsibilities established in 7 CFR 210.18. This change is intended to focus more attention on the importance of providing lunches and breakfasts that reflect the science-based meal requirements, in accordance with § 9 of the NSLA and § 201 of the HHFKA. In addition to observing the serving line and the meals counted at point of service during the administrative review, the SAs must conduct a nutrient analysis to ensure that the average levels of calories, saturated fat, and sodium in the meals offered over the school week are within the values specified in this final rule. However, in response to commenters' concerns, this final rule requires SAs to review menu and production records for one week only within the review period, instead of the two weeks stated in the proposed rule. This modification reduces the information collection burden for SAs. USDA is reviewing potential alternative approaches to nutrient analysis and will provide further guidance to SAs. This final rule changes the administrative review cycle from 5 to 3 years in accordance with the NSLA, as amended by § 207 of the HHFKA. This change takes effect in SY 2013-2014, after the current 5-year review cycle ends. More frequent monitoring is intended to increase opportunities for the SAs to provide guidance and technical assistance to the SFAs during implementation of the new meal requirements. USDA is aware of program operators' concerns regarding increased monitoring and will provide technical assistance resources and guidance to SAs to facilitate transition to the 3-year review cycle. This final rule also makes several improvements to the SBP to bring those meals closer to the recommendations of the Dietary Guidelines. Therefore, and in accordance with the NSLA as amended by the HHFKA, beginning SY 2013-2014, SAs must monitor breakfasts under the administrative review. However, because the new meal requirements (other than limiting types of milk) are being implemented gradually in the SBP, part of the compliance assessment must be based on prior nutrition standards (which are now in § 220.23) until new requirements in the SBP regulations at § 220.8 take effect. The requirement to conduct a nutrient analysis of breakfast menu records for one-week period begins July 1, 2013 (SY 2013-2014). SAs must continue to use technical assistance and corrective action as the primary strategies to help schools comply with the meal requirements. However, this final rule gives SAs the ability to use fiscal action to enforce compliance with specific meal requirements. As currently done, SAs must apply immediate fiscal action if the meals offered are completely missing one of the required food components. SAs must also take fiscal action for repeated violations of the vegetable subgroup and milk type requirements when technical assistance efforts and required corrective action have not resolved these violations. However, SAs have discretion to take fiscal action for repeated violations of the food quantity and whole grain requirements, and for repeated violations of the dietary specifications (calories, saturated fat, sodium and trans fats). A commenter suggested public disclosure of the administrative review findings. The NSLA, as amended by the HHFKA, requires schools to post review final findings and make findings available to the public. Also, the NSLA requires local education agencies to report on the school nutrition environment to USDA and to the public, including information on food safety inspections, local wellness policies, school meal program participation, and nutritional quality of program meals. These statutory requirements will be implemented through a separate rule. Accordingly, this final rule implements the proposed monitoring requirements, with the modification discussed above, and codifies them under § 210.18(a), § 210.18(c), § 210.18(g) and § 210.18(m) for the NSLP and under § 220.8(h) and § 220.8(j) for the SBP. Identification of Reimbursable Meal Proposed Rule: Identify the foods that are part of the reimbursable meal(s) for the day at or near the beginning of the serving line(s). Comments: Most of the commenters that addressed this proposal supported it because they believe it helps students avoid unintentional purchase of food items not included in the reimbursable meal. A few commenters opposed the proposed requirement and argued that it will overtly identify students that receive free and reduced price meals. USDA Response: Beginning July 1, 2012 (SY 2012-2013), this final rule requires schools to identify the components of the reimbursable meal at or near the beginning of the serving line(s) as students and parents often are not aware of what is included in the school meal. Identifying the components of the reimbursable meal also reinforces nutrition education messages that emphasize selecting healthy choices for a balanced meal. Schools have discretion to determine the best way to present this information on the serving line. Implementing this requirement must not result in overt identification of any student participating in the NSLP or SBP through use of a separate serving line for the reimbursable meal or other segregation of certified students. Accordingly, this final rule implements the proposed requirement and codifies it under § 210.10(a)(2) for the NSLP, and under § 220.8(h) and § 220.8(j) for the SBP. Crediting Proposed Rule: • Disallow the crediting of any snack-type fruit or vegetable products (such as fruit strips and fruit drops), regardless of their nutrient content, toward the fruits component or the vegetables component. • Require that all fruits and vegetables (and their concentrates, purees, and pastes) be credited based on volume as served with two exceptions: (1) Dried whole fruit and dried whole fruit pieces would be credited for twice the volume served; and (2) leafy salad greens would be credited for half the volume served. Comments: Comments in favor of disallowing snack-type fruit or vegetable products exceeded the comments opposed. Those in favor stated that permitting such products sends the wrong nutrition message to children. Others said that children should be offered a variety of whole fruits and vegetables. However, some commenters opposed the requirement due to concerns over the cost of providing whole fruit. They suggested that USDA allow products made with 100 percent fruit. Many commenters opposed the proposal that all fruits and vegetables (and their concentrates, purees, and pastes) be credited based on volume as served. These commenters included school districts, school advocacy organizations, trade associations, food manufacturers, a food service management company, a State department of education and others. They expressed concern over the potential cost increase due to product reformulation and reduced product acceptability. Many commenters recommended that USDA keep the current practice to credit tomato paste and puree based on their whole-food equivalency using the percent natural tomato soluble solids in paste and puree. USDA Response: One of the goals of the School Meal Programs is to help children easily recognize the key food groups that contribute to a balanced meal, including fruits and vegetables. Effective July 1, 2012 (SY 2012-2013), reimbursable meals must not include snack-type fruit products that have been previously credited by calculating the whole-fruit equivalency of the processed fruit in the product using the FDA's standards of identity for canned fruit nectars (21 CFR 146.113). FDA revoked the standard of identity for canned fruit nectars through a final rule published in the Federal Register (60 FR 56513) on November 9, 1995; therefore, there is no regulatory basis for allowing the crediting of these snack-type fruit products. As a result of Section 743 of the FY 2012 Agriculture Appropriations Act, this final rule does not adopt the proposed crediting change for tomato paste and puree. USDA will credit tomato paste and puree as a calculated volume based on the whole food equivalency. Although this specific proposal was intended to promote consistency and improved nutrition by crediting all fruits and vegetables (and their concentrates, purees, and pastes) based on volume as served, this final rule must comply with the statutory provision. Accordingly, this final rule disallows the crediting of any snack-type fruit or vegetable products, and continues the crediting of tomato paste and puree as a calculated volume under § 210.10(c)(2)(iii) of the regulatory text. Fortification Proposed Rule: Disallow the use of formulated grain-fruit products as defined in Appendix A to 7 CFR part 220. Comments: Most commenters were in favor of removing formulated grain-fruit products from the School Meal Programs. They indicated that such products do not support the Dietary Guidelines' recommendation to consume fruits as a separate food group. However, some commenters opposed the removal of formulated grain-fruit products, and claimed that these products are cost-effective and convenient in new breakfast delivery systems such as Grab and Go and Breakfast in the Classroom. USDA Response: This final rule disallows the use of formulated grain-fruit products to meet the grain and fruit components in the SBP beginning July 1, 2012 (SY 2012-2013). Formulated grain-fruit products, as defined in Appendix A to 7 CFR part 220, are (1) grain-type products that have grain as the primary ingredient, and (2) grain-fruit type products that have fruit as the primary ingredient. Both types of products must have at least 25 percent of their weight derived from grain. These products typically contain high levels of fortification, rather than naturally occurring nutrients, and are high in sugar and fat. Furthermore, they no longer meet a need in the school meal programs because schools can procure more nutrient-dense breakfast options with a similar shelf-life. This rule does not prohibit the use of fortified cereals or cereals with fruit ( e.g., ready-to-eat cereals) which may provide good sources of whole grains, fiber, and other important nutrients. In most instances, however, the use of highly-fortified food products is inconsistent with the Dietary Guidelines. Accordingly, this final rule amends Appendix A to 7 CFR part 220 by removing Formulated Grain-Fruit Products in its entirety. It also makes a technical change to Appendix B to 7 CFR part 210 by removing the statement that affirms that Appendix B will be updated to exclude individual foods that have been determined to be exempted from the categories of Foods of Minimal Nutritional Value. Although USDA has published Federal Register Notices in the past to inform the public of exempted foods, Appendix B has not been amended subsequently to reflect these exemptions. A list of these exempted foods is maintained and available to all State agencies participating in the Programs. There have been no changes to the categories of exempted foods and USDA is maintaining the requirement to publish a Federal Register Notice and update the regulations to reflect any changes to the categories. Accordingly, this final rule implements the proposed change by removing the Formulated Grain-Fruit Products from Appendix A to 7 CFR part 220. III New Meal Patterns and Dietary Specifications The following meal patterns must be implemented in SY 2012-2013 for the NSLP, and phased-in the SBP as specified in the footnotes and regulatory text. Meal pattern Breakfast meal pattern Grades K-5 a Grades 6-8 a Grades 9-12 a Lunch meal pattern Grades K-5 Grades 6-8 Grades 9-12 Amount of food b per week (minimum per day) Fruits (cups) c d 5 (1) e 5 (1) e 5 (1) e 2 1/2 ( 1/2 ) 2 1/2 ( 1/2 ) 5 (1) Vegetables (cups) c d 0 0 0 3 3/4 ( 3/4 ) 3 3/4 ( 3/4 ) 5 (1) Dark green f 0 0 0 1/2 1/2 1/2 Red/Orange f 0 0 0 3/4 3/4 1 1/4 Beans/Peas (Legumes) f 0 0 0 1/2 1/2 1/2 Starchy f 0 0 0 1/2 1/2 1/2 Other f g 0 0 0 1/2 1/2 3/4 Additional Veg to Reach Total h 0 0 0 1 1 1 1/2 Grains (oz eq) i 7-10 (1) j 8-10 (1) j 9-10 (1) j 8-9 (1) 8-10 (1) 10-12 (2) Meats/Meat Alternates (oz eq) 0 k 0 k 0 k 8-10 (1) 9-10 (1) 10-12 (2) Fluid milk (cups) l 5 (1) 5 (1) 5 (1) 5 (1) 5 (1) 5 (1) Other Specifications: Daily Amount Based on the Average for a 5-Day Week Min-max calories (kcal) m n o 350-500 400-550 450-600 550-650 600-700 750-850 Saturated fat % of total calories) n o < 10 < 10 < 10 < 10 < 10 < 10 Sodium (mg) n p ≤ 430 ≤ 470 ≤ 500 ≤ 640 ≤ 710 ≤ 740 Trans fat n o Nutrition label or manufacturer specifications must indicate zero grams of trans fat per serving. a In the SBP, the above age-grade groups are required beginning July 1, 2013 (SY 2013-14). In SY 2012-2013 only, schools may continue to use the meal pattern for grades K-12 (see § 220.23). b Food items included in each food group and subgroup and amount equivalents. Minimum creditable serving is 1/8 cup. c One quarter-cup of dried fruit counts as 1/2 cup of fruit; 1 cup of leafy greens counts as 1/2 cup of vegetables. No more than half of the fruit or vegetable offerings may be in the form of juice. All juice must be 100% full-strength. d For breakfast, vegetables may be substituted for fruits, but the first two cups per week of any such substitution must be from the dark green, red/orange, beans and peas (legumes) or “Other vegetables” subgroups as defined in § 210.10(c)(2)(iii). e The fruit quantity requirement for the SBP (5 cups/week and a minimum of 1 cup/day) is effective July 1, 2014 (SY 2014-2015). f Larger amounts of these vegetables may be served. g This category consists of “Other vegetables” as defined in § 210.10(c)(2)(iii)(E). For the purposes of the NSLP, “Other vegetables” requirement may be met with any additional amounts from the dark green, red/orange, and beans/peas (legumes) vegetable subgroups as defined in § 210.10(c)(2)(iii). h Any vegetable subgroup may be offered to meet the total weekly vegetable requirement. i At least half of the grains offered must be whole grain-rich in the NSLP beginning July 1, 2012 (SY 2012-2013), and in the SBP beginning July 1, 2013 (SY 2013-2014). All grains must be whole grain-rich in both the NSLP and the SBP beginning July 1, 2014 (SY 2014-15). j In the SBP, the grain ranges must be offered beginning July 1, 2013 (SY 2013-2014). k There is no separate meat/meat alternate component in the SBP. Beginning July 1, 2013 (SY 2013-2014), schools may substitute 1 oz. eq. of meat/meat alternate for 1 oz. eq. of grains after the minimum daily grains requirement is met. l Fluid milk must be low-fat (1 percent milk fat or less, unflavored) or fat-free (unflavored or flavored). m The average daily amount of calories for a 5-day school week must be within the range (at least the minimum and no more than the maximum values). n Discretionary sources of calories (solid fats and added sugars) may be added to the meal pattern if within the specifications for calories, saturated fat, trans fat, and sodium. Foods of minimal nutritional value and fluid milk with fat content greater than 1 percent milk fat are not allowed. o In the SBP, calories and trans fat specifications take effect beginning July 1, 2013 (SY 2013-2014). p Final sodium specifications are to be reached by SY 2022-2023 or July 1, 2022. Intermediate sodium specifications are established for SY 2014-2015 and 2017-2018. See required intermediate specifications in § 210.10(f)(3) for lunches and § 220.8(f)(3) for breakfasts. IV Implementation Timeline The following chart provides a summary of the new requirements and the required implementation dates in the NSLP and SBP. Refer to the regulatory text for details. New requirements Implementation (school year) for NSLP (L) and SBP (B) 2012/13 2013/14 2014/15 2015/16 2016/17 2017/18 2022/23 Fruits Component: • Offer fruit daily L • Fruit quantity increase to 5 cups/week (minimum 1 cup/day) B Vegetables Component: • Offer vegetables subgroups weekly L Grains Component: • Half of grains must be whole grain-rich L B • All grains must be whole-grain rich L, B • Offer weekly grains ranges L B Meats/Meat Alternates Component: • Offer weekly meats/meat alternates ranges (daily min.) L Milk Component: • Offer only fat-free (unflavored or flavored) and low-fat (unflavored) milk L, B Dietary Specifications (to be met on average over a week): • Calorie ranges L B • Saturated fat limit (no change) L, B • Sodium Targets 1 L, B L, B ○ Target 1 ○ Target 2 ○ Final target • Zero grams of trans fat per portion L B Menu Planning: • A single FBMP approach L B Age-Grade Groups: • Establish age/grade groups: K-5, 6-8, and 9-12 L B Offer vs. Serve: • Reimbursable meals must contain a fruit or vegetable ( 1/2 cup minimum) L B Monitoring: • 3-year adm. review cycle L, B • Conduct weighted nutrient analysis on 1 week of menus L B 1 Target 2 and the final target will only be required after USDA evaluates relevant data on sodium intake and human health, as required by Section 743 of the FY 2012 Agriculture Appropriations Act. Implementation Resources With respect to resources for the changes, USDA estimates suggest that the common-sense revenue reforms for school food businesses included in the HHFKA will provide an additional $7.5 billion in non-Federal revenues over 5 years to the food service accounts of local school districts. This includes over $5.3 billion in additional revenue from a la carte foods, over $300 million in additional payments from paid lunches, and over $1.9 billion in additional revenue schools resulting from making school meals more competitive with a la carte foods. Since the statute mandated that revenue streams from non-Program foods relative to the costs of those foods, should be at least as high as the revenue stream for Program meals bears to costs beginning July 1, 2011, schools should receive over $1 billion in new revenues in School Year 2011-2012. That will help schools work toward implementing the new standards effective the following year, i.e., July 1, 2012. In addition, USDA estimates that the interim rule “National School Lunch Program: School Food Service Account Revenue Amendments Related to the Healthy, Hunger-Free Kids Act of 2010” will increase participation in school meals programs by 800,000 children. The six-cent performance-based reimbursement increase included in the HHFKA will provide additional revenue beyond this amount. The Congressional Budget Office estimated about $1.5 billion over the same period in performance-based funding. USDA will work with the SAs to facilitate transition to the new meal requirements. USDA and the National Food Service Management Institute are developing technical assistance resources and training to help school foodservice staff improve menus, order appropriate foods to meet the new meal requirements, and control costs while maintaining quality. Resources and training materials being developed include identifying and purchasing whole grain-rich foods, lowering the sodium on menus, and meeting the new meal pattern requirements. Training will be available through a variety of methods including webinars and online learning modules. We are updating the Child Nutrition Database and will reevaluate nutrient analysis software systems available from industry to assist SAs with monitoring calories, saturated fat, and sodium in the meals offered to students in grades K through 12 during the administrative review. The Child Nutrition Labeling Program is being updated to report whole grain-rich contributions to the grains component and to provide standardized claims for the vegetable subgroups consistent with the 2010 Dietary Guidelines. In addition, the HHFKA provides USDA $50 million for each of the first two years of the new meal requirements for use in assisting SAs implement the new requirements. These funds, combined with increases in State Administrative Expense funding, should assist States and local operators in improving the quality of school meals provided to children. V. Procedural Matters Executive Order 12866 and Executive Order 13563 Executive Orders 13563 and 12866 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 rule has been designated an “economically significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget. Regulatory Flexibility Act This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Pursuant to that review, it has been determined that this rule will have a significant impact on a substantial number of small entities. The requirements established by this final rule will apply to school districts, which meet the definitions of “small governmental jurisdiction” and “small entity” in the Regulatory Flexibility Act. A Regulatory Flexibility Act analysis is included in the preamble. 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, USDA 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 to 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 USDA 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. The Regulatory Impact Analysis conducted by FNS in connection with this final rule includes a cost/benefit analysis and explains the options considered to implement the Dietary Guidelines in the school meal programs. USDA sought the assistance of the Institute of Medicine of the National Academies to recommend changes to school meal standards in the least burdensome and costly manner consistent with the Dietary Guidelines. However, this final rule contains Federal mandates (under the regulatory provisions of Title II of the UMRA) that could result in costs to State, local, or tribal governments or to the private sector of $100 million or more in any one year. The HHFKA authorizes $50 million over two years to help State agencies implement the new meal pattern requirements. These funds, combined with increases in State Administrative Expense funding, should assist States and local operators in implementing the requirements established by this final rule. Local program operators need to optimize the use of USDA Foods and adopt other cost-savings strategies in various areas of the food service operation, including procurement, menu planning, and meal production to meet the rule requirements in a cost-effective manner. Executive Order 12372 The NSLP is listed in the Catalog of Federal Domestic Assistance under No. 10.555 and the SBP is listed under No. 10.553. For the reasons set forth in the final rule in 7 CFR part 3015, Subpart V and related Notice published at 48 FR 29114, June 24, 1983, these Programs are included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials. Since the NSLP and SBP are State-administered, federally funded programs, FNS headquarters staff and regional offices have formal and informal discussions with State and local officials, including ITO representatives, on an ongoing basis regarding program requirements and operation. This structure allows FNS to receive regular input which contributes to the development of meaningful and 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. Prior Consultation With State Officials FNS staff received informal input from various stakeholders while participating in various State, regional, national, and professional conferences. Various departments of education, boards of education, departments of health, and other state and local organizations provided input during the public comment period. The School Nutrition Association, School Food Industry Roundtable, National Alliance for Nutrition and Activity, Association of State and Territorial Public Health Nutrition Directors, and the Center for Science in the Public Interest shared their views about changes to the school meals. Numerous stakeholders also provided input at the public meetings held by the Institute of Medicine in connection with its school meals study. Nature of Concerns and the Need to Issue This Rule State Agencies and school food authorities want to provide the best possible school meals through the NSLP and SBP but are concerned about program costs, food waste, and increasing administrative burden. While FNS is aware of these concerns, section 9(a)(4) and section 9(f)(1) of the National School Lunch Act, 42 U.S.C. 1758(a)(4) and (f)(1), require that school meals reflect the most recent “Dietary Guidelines for Americans” and promote the intake of the food groups recommended by the Dietary Guidelines. Extent To Which We Meet Those Concerns Although there is general su [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-1010. Public record. Not legal advice.