Notice of Vacatur: Rescission of Milk, Whole Grains, and Sodium Flexibilities

On Dec. 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 Nov. 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).