# Requirements for meals.
**AGENCY:**
Food and Nutrition Service (FNS), USDA.
**ACTION:**
Final rule.
**SUMMARY:**
This final rule removes from the Code of Federal Regulations the final rule published on December 12, 2018, titled, “Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements.” This action responds to a decision of the U.S. District Court for the District of Maryland that vacated the rule.
**DATES:**
The action is effective November 24, 2020. However, the court order had legal effect immediately upon its filing on April 13, 2020.
**FOR FURTHER INFORMATION CONTACT:**
Tina Namian, Chief, School Programs Branch, Policy and Program Development Division, Food and Nutrition Service, telephone: 703-305-2590.
**SUPPLEMENTARY INFORMATION:**
On December 12, 2018, the Food and Nutrition Service (FNS) published a final rule titled, “Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements,” (2018 Final Rule) (83 FR 63775). The 2018 Final Rule codified three menu planning flexibilities, with some extensions, temporarily established by the interim final rule of the same title published November 30, 2017, (82 FR 56703). First, the 2018 Final Rule broadened the milk options in the National School Lunch Program and School Breakfast Program by allowing local operators to permanently offer flavored, low-fat milk. For consistency across nutrition programs, it also allowed flavored, low-fat milk in the Special Milk Program for Children and in the Child and Adult Care Food Program for participants ages 6 and older. Second, the 2018 Final Rule allowed for half of the weekly grains in the school lunch and breakfast menus to be whole grain-rich, thus ending the need for an exemption process to serve enriched grains. Third, it provided schools in the lunch and breakfast programs more time for gradual sodium reduction by retaining Sodium Target 1 through the end of school year (SY) 2023-2024, continuing to Target 2 in SY 2024-2025, and eliminating the Final Target that would have gone into effect in SY 2022-2023. By codifying those flexibilities, USDA acknowledged the persistent menu planning challenges experienced by some schools, and affirmed its commitment to giving schools more control over food service decisions and greater ability to offer wholesome and appealing meals that reflect local preferences.
In an April 13, 2020, decision in the *Center for Science in the Public Interest et al.,* v. *Sonny Perdue, Secretary, et al.,* No. 8:19-cv-01004-GLS (D. Md. 2019), the U.S. District Court for the District of Maryland found a procedural error with the promulgation of the 2018 Final Rule, and therefore, vacated the regulation.
This rule is not subject to the requirement to provide notice and an opportunity for public comment because it falls under the good cause exception at 5 U.S.C. 553(b)(B). The good cause exception is satisfied when notice and comment is “impracticable, unnecessary, or contrary to the public interest.” Id. This rule is an administrative step that implements the court's order vacating the 2018 Final Rule. Additionally, because this rule implements a court order already in effect, FNS has good cause to waive the 30-day effective date under 5 U.S.C. 553(d).
**List of Subjects**
Grant programs—education, Grant programs—health, Infants and children, Nutrition, Penalties, Reporting and recordkeeping requirements, School breakfast and lunch programs, Surplus agricultural commodities.
Food assistance programs, Grant programs—education, Grant program—health, Infants and children, Milk, Reporting and recordkeeping requirements.
Grant programs—education, Grant programs—health, Infants and children, Nutrition, Reporting and recordkeeping requirements, School breakfast and lunch programs.
Accounting, Aged, Day care, Food assistance programs, Grant programs, Grant programs—health, American Indians, Individuals with disabilities, Infants and children, Intergovernmental relations, Loan programs, Reporting and recordkeeping requirements, Surplus agricultural commodities.
Accordingly, 7 CFR parts 210, 215, 220, and 226 are amended as follows:
**PART 210—NATIONAL SCHOOL LUNCH PROGRAM**
**7 CFR Part 210**
1. The authority citation for part 210 continues to read as follows:
**Authority:**
42 U.S.C. 1751-1760, 1779.
**7 CFR Part 210**
2. In § 210.10, revise the table in paragraph (c) introductory text and paragraphs (c)(2(iv)(B), (d)(l)(i), and (f)(3) to read as follows:
§ 210.10
(c) * * *
| Food components | Lunch meal pattern | Grades K-5 | Grades 6-8 | Grades 9-12 |
| --- | --- | --- | --- | --- |
| | Amount of food
per week (minimum per day) | | | |
| Fruits (cups) | 2
(
) | 2
(
) | 5 (1) | |
| Vegetables (cups) | 3
(
) | 3
(
) | 5 (1) | |
| Dark green | | | | |
| Red/Orange | | | 1 | |
| Beans and peas (legumes) | | | | |
| Starchy | | | | |
| Other | | | | |
| Additional Vegetables to Reach Total | 1 | 1 | 1 | |
| Grains (oz eq) | 8-9 (1) | 8-10 (1) | 10-12 (2) | |
| Meats/Meat Alternates (oz eq) | 8-10 (1) | 9-10 (1) | 10-12 (2) | |
| Fluid milk (cups) | 5 (1) | 5 (1) | 5 (1) | |
| | | | | |
| Min-max calories (kcal) | 550-650 | 600-700 | 750-850 | |
| Saturated fat (% of total calories) | <10 | <10 | <10 | |
| Sodium (mg) | ≤640 | ≤710 | ≤740 | |
| fat | Nutrition label or manufacturer specifications must indicate zero grams of
fat per serving. | | | |
(2) * * *
(iv) * * *
(B) *Daily and weekly servings.* The grains component is based on minimum daily servings plus total servings over a 5-day school week. Schools serving lunch 6 or 7 days per week must increase the weekly grains quantity by approximately 20 percent ( 1/5 ) for each additional day. When schools operate less than 5 days per week, they may decrease the weekly quantity by approximately 20 percent ( 1/5 ) for each day less than 5. The servings for biscuits, rolls, muffins, and other grain/bread varieties are specified in FNS guidance. All grains offered weekly must meet the whole grain-rich criteria specified in FNS guidance.
(d) * * *
(1) * * *
(i) Schools must offer students a variety (at least two different options) of fluid milk. All milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk with higher fat content is not allowed. Fat-free fluid milk may be flavored or unflavored, and low-fat fluid milk must be unflavored. Low-fat or fat-free lactose-free and reduced-lactose fluid milk may also be offered.
(f) * * *
(3) *Sodium.* School lunches offered to each age/grade group must meet, on average over the school week, the levels of sodium specified in the following table within the established deadlines:
| National school lunch program | Age/grade group | Sodium timeline & limits | Target 2: | Final target: |
| --- | --- | --- | --- | --- |
| K-5 | ≤935 | ≤640 | | |
| 6-8 | ≤1,035 | ≤710 | | |
| 9-12 | ≤1,080 | ≤740 | | |
§ 210.11
**7 CFR Part 210**
3. In § 210.11, paragraphs (m)(1)(ii), (m)(2)(ii), and (m)(3)(ii), are amended by removing the words “or flavored” each time they appear.
**PART 215—SPECIAL MILK PROGRAM FOR CHILDREN**
**7 CFR Part 215**
4. The authority citation for part 215 continues to read as follows:
**Authority:**
42 U.S.C. 1772 and 1779.
**7 CFR Part 215**
5. In § 215.7a, revise paragraph (a)(3) to read as follows:
§ 215.7a
(a) * * *
(3) * Children 6 years old and older.* Children 6 years old and older must be served unflavored low-fat (1 percent fat or less), unflavored fat-free (skim), or flavored fat-free (skim) milk.
**PART 220—SCHOOL BREAKFAST PROGRAM**
**7 CFR Part 220**
6. The authority citation for part 220 continues to read as follows:
**Authority:**
42 U.S.C. 1773, 1779, unless otherwise noted.
**7 CFR Part 220**
7. In § 220.8, revise the table in paragraph (c) introductory text and paragraphs (c)(2)(iv)(B), (d), and (f)(3) to read as follows:
§ 220.8
(c) * * *
| Food components | Breakfast meal pattern | Grades K-5 | Grades 6-8 | Grades 9-12 |
| --- | --- | --- | --- | --- |
| | Amount of food
per week (minimum per day) | | | |
| Fruits (cups) | 5 (1) | 5 (1) | 5 (1) | |
| Vegetables (cups) | 0 | 0 | 0 | |
| Dark green | 0 | 0 | 0 | |
| Red/Orange | 0 | 0 | 0 | |
| Beans and peas (legumes) | 0 | 0 | 0 | |
| Starchy | 0 | 0 | 0 | |
| Other | 0 | 0 | 0 | |
| Grains (oz. eq.) | 7-10 (1) | 8-10 (1) | 9-10 (1) | |
| Meats/Meat Alternates (oz eq) | 0 | 0 | 0 | |
| Fluid milk (cups) | 5 (1) | 5 (1) | 5 (1) | |
| | | | | |
| Min-max calories (kcal) | 350-500 | 400-550 | 450-600 | |
| Saturated fat (% of total calories) | <10 | <10 | <10 | |
| Sodium (mg) | ≤430 | ≤470 | ≤500 | |
| fat | Nutrition label or manufacturer specifications must indicate zero grams of
fat per serving. | | | |
(2) * * *
(iv) * * *
(B) *Daily and weekly servings.* The grains component is based on minimum daily servings plus total servings over a 5-day school week. Schools serving breakfast 6 or 7 days per week must increase the weekly grains quantity by approximately 20 percent ( 1/5 ) for each additional day. When schools operate less than 5 days per week, they may decrease the weekly quantity by approximately 20 percent ( 1/5 ) for each day less than 5. The servings for biscuits, rolls, muffins, and other grain/bread varieties are specified in FNS guidance. All grains offered weekly must meet the whole grain-rich criteria specified in FNS guidance.
(d) *Fluid milk requirement.* Breakfast must include a serving of fluid milk as a beverage or on cereal or used in part for each purpose. Schools must offer students a variety (at least two different options) of fluid milk. All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less). Milk with higher fat content is not allowed. Fat-free fluid milk may be flavored or unflavored, and low-fat fluid milk must be unflavored. Low-fat or fat-free lactose-free and reduced-lactose fluid milk may also be offered. Schools must also comply with other applicable fluid milk requirements in § 210.10(d)(1) through (4) of this chapter.
(f) * * *
(3) *Sodium.* School breakfasts offered to each age/grade group must meet, on average over the school week, the levels of sodium specified in the following table within the established deadlines:
| School breakfast program | Age/grade group | Sodium timeline & limits | Target 2: | Final target: |
| --- | --- | --- | --- | --- |
| K-5 | ≤485 | ≤430 | | |
| 6-8 | ≤535 | ≤470 | | |
| 9-12 | ≤570 | ≤500 | | |
**PART 226—CHILD AND ADULT CARE FOOD PROGRAM**
**7 CFR Part 226**
8. The authority citation for part 226 continues to read as follows:
**Authority:**
Secs. 9, 11, 14, 16, and 17, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766).
**7 CFR Part 226**
9. In § 226.20:
a. Revise paragraphs (a)(1)(iii) and (iv); and
b. Revise the tables to paragraphs (c)(1), (2), and (3).
The revisions read as follows:
§ 226.20
(a) * * *
(1) * * *
*(iii) Children 6 years old and older.* Children 6 years old and older must be served unflavored low-fat (1 percent), unflavored fat-free (skim), or flavored fat-free (skim) milk.
*(iv) Adults.* Adults must be served unflavored low-fat (1 percent), unflavored fat-free (skim), or flavored fat-free (skim) milk. Six ounces (weight) or 3/4 cup (volume) of yogurt may be used to fulfill the equivalent of 8 ounces of fluid milk once per day. Yogurt may be counted as either a fluid milk substitute or as a meat alternate, but not as both in the same meal.
(c) * * *
(1) * * *
| Food components and food items | Minimum quantities | Ages 1-2 | Ages 3-5 | Ages 6-12 | Ages 13-18 | Adult participants |
| --- | --- | --- | --- | --- | --- | --- |
| Fluid Milk | 4 fluid ounces | 6 fluid ounces | 8 fluid ounces | 8 fluid ounces | 8 fluid ounces. | |
| Vegetables, fruits, or portions of both | cup | cup | cup | cup | cup. | |
| Grains (oz. eq.)
: | | | | | | |
| Whole grain-rich or enriched bread | slice | slice | 1 slice | 1 slice | 2 slices. | |
| Whole grain-rich or enriched bread product, such as biscuit, roll, or muffin | serving | serving | 1 serving | 1 serving | 2 servings. | |
| Whole grain-rich, enriched, or fortified cooked breakfast cereal,
cereal grain, and/or pasta | cup | cup | cup | cup | 1 cup. | |
| Whole grain-rich, enriched or fortified ready-to-eat breakfast cereal (dry, cold) | | | | | | |
| Flakes or rounds | cup | cup | 1 cup | 1 cup | 2 cups. | |
| Puffed cereal | cup | cup | 1
cup | 1
cup | 2
cup. | |
| Granola | cup | cup | cup | cup | cup. | |
(2) * * *
| Food components and food items | Minimum quantities | Ages 1-2 | Ages 3-5 | Ages 6-12 | Ages 13-18 | Adult participants |
| --- | --- | --- | --- | --- | --- | --- |
| Fluid Milk | 4 fluid ounces | 6 fluid ounces | 8 fluid ounces | 8 fluid ounces | 8 fluid ounces. | |
| Meat/meat alternates (edible portion as served): | | | | | | |
| Lean meat, poultry, or fish | 1 ounce | 1
ounces | 2 ounces | 2 ounces | 2 ounces. | |
| Tofu, soy products, or alternate protein products | 1 ounce | 1
ounces | 2 ounces | 2 ounces | 2 ounces. | |
| Cheese | 1 ounce | 1
ounces | 2 ounces | 2 ounces | 2 ounces. | |
| Large egg | | | 1 | 1 | 1. | |
| Cooked dry beans or peas | cup | cup | cup | cup | cup. | |
| Peanut butter or soy nut butter or other nut or seed butters | 2 Tbsp | 3 Tbsp | 4 Tbsp | 4 Tbsp | 4 Tbsp. | |
| Yogurt, plain or flavored unsweetened or sweetened | 4 ounces or
cup | 6 ounces or
cup | 8 ounces or 1 cup | 8 ounces or 1 cup | 8 ounces or 1 cup. | |
| The following may be used to meet no more than 50% of the requirement: | | | | | | |
| Peanuts, soy nuts, tree nuts, or seeds, as listed in program guidance, or an equivalent quantity of any combination of the above meat/meat alternates (1 ounce of nuts/seeds = 1 ounce of cooked lean meat, poultry, or fish) | ounce = 50% | ounce = 50% | 1 ounce = 50% | 1 ounce = 50% | 1 ounce = 50%. | |
| Vegetables | cup | cup | cup | cup | cup. | |
| Fruits | cup | cup | cup | cup | cup. | |
| Grains (oz eq): | | | | | | |
| Whole grain-rich or enriched bread | slice | slice | 1 slice | 1 slice | 2 slices. | |
| Whole grain-rich or enriched bread product, such as biscuit, roll, or muffin | serving | serving | 1 serving | 1 serving | 2 servings. | |
| Whole grain-rich, enriched, or fortified cooked breakfast cereal,
cereal grain, and/or pasta | cup | cup | cup | cup | 1 cup. | |
(3) * * *
| Food components and food items | Minimum quantities | Ages 1-2 | Ages 3-5 | Ages 6-12 | Ages 13-18 | Adult participants |
| --- | --- | --- | --- | --- | --- | --- |
| Fluid Milk | 4 fluid ounces | 6 fluid ounces | 8 fluid ounces | 8 fluid ounces | 8 fluid ounces. | |
| Meat/meat alternates (edible portion as served): | | | | | | |
| Lean meat, poultry, or fish | ounce | ounce | 1 ounce | 1 ounce | 1 ounce. | |
| Tofu, soy products, or alternate protein products | ounce | ounce | 1 ounce | 1 ounce | 1 ounce. | |
| Cheese | ounce | ounce | 1 ounce | 1 ounce | 1 ounce. | |
| Large egg | | | | | . | |
| Cooked dry beans or peas | cup | cup | cup | cup | cup. | |
| Peanut butter or soy nut butter or other nut or seed butters | 1 Tbsp | 1 Tbsp | 2 Tbsp | 2 Tbsp | 2 Tbsp. | |
| Yogurt, plain or flavored unsweetened or sweetened | 2 ounces or
cup | 2 ounces or
cup | 4 ounces or
cup | 4 ounces or
cup | 4 ounces or
cup. | |
| Peanuts, soy nuts, tree nuts, or seeds | ounce | ounce | 1 ounce | 1 ounce | 1 ounce. | |
| Vegetables | cup | cup | cup | cup | cup. | |
| Fruits | cup | cup | cup | cup | cup. | |
| Grains (oz. eq.): | | | | | | |
| Whole grain-rich or enriched bread | slice | slice | 1 slice | 1 slice | 1 slice. | |
| Whole grain-rich or enriched bread product, such as biscuit, roll, or muffin | serving | serving | 1 serving | 1 serving | 1 serving. | |
| Whole grain-rich, enriched, or fortified cooked breakfast cereal,
cereal grain, and/or pasta | cup | cup | cup | cup | cup. | |
| Whole grain-rich, enriched, or fortified ready-to-eat breakfast cereal (dry, cold) | | | | | | |
| Flakes or rounds | cup | cup | 1 cup | 1 cup | 1 cup. | |
| Puffed cereal | cup | cup | 1
cup | 1
cup | 1
cup. | |
| Granola | cup | cup | cup | cup | cup. | |
Pamilyn Miller,
Administrator, Food and Nutrition Service.