[Federal Register Volume 69, Number 235 (Wednesday, December 8, 2004)]
[Rules and Regulations]
[Pages 70871-70872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26934]



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  Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / 
Rules and Regulations  

[[Page 70871]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 210

RIN 0584-AD55


National School Lunch Program: Requirement for Variety of Fluid 
Milk in Reimbursable Meals

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule makes changes to the regulations governing the 
National School Lunch Program. Currently, reimbursable school lunches 
must offer types of fluid milk consistent with prior year preferences, 
unless the prior year preference for a particular type of milk was less 
than one percent of the total milk consumed.
    In response to the requirements of the Child Nutrition and WIC 
Reauthorization Act of 2004, which amended the Richard B. Russell 
National School Lunch Act, the National School Lunch Program 
regulations are revised to require that schools offer, with meals, 
fluid milk in a variety of fat contents. The requirement for 
consistency with prior year preferences is removed. As a result of the 
legislation, schools are provided with more flexibility to expand 
choices based upon what school food service professionals believe are 
the most appropriate offerings to meet the needs and tastes of 
children, as well as what will best encourage the increased consumption 
of milk and its associate nutrients by schoolchildren.

DATES: Effective July 1, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. Rosemary O'Connell, 
(Rosemary.O'[email protected]) Section Chief, School Programs 
Section, Program Policy and Development Branch, Child Nutrition 
Division, Food and Nutrition Service, 3101 Park Center Drive, Room 634, 
Alexandria, VA 22302, (703) 305-2590.

SUPPLEMENTARY INFORMATION:

Background

    The requirements for offering fluid milk as a part of a 
reimbursable lunch in the National School Lunch Program (NSLP) are 
described in 7 CFR 210.10 (m). Specifically, 7 CFR 210.10 (m)(1)(i) 
states that the types of milk offered by the school must be consistent 
with the types of milk consumed during the prior year, but stipulates 
that if a particular type of milk accounted for less than one percent 
(1%) of the total amount of milk consumed in the prior year, the school 
is not required to offer that type of milk. Section 102 of The Child 
Nutrition and WIC Reauthorization Act of 2004 (Public Law 108-265), 
amended section 9(a) of the Richard B. Russell National School Lunch 
Act (42 U.S.C. 1758(a)) by removing the requirement that types of milk 
offered be consistent with the types consumed in the previous year. 
This rule makes corresponding changes to the regulations for the NSLP 
(7 CFR Part 210).

Does This Provision Apply to the School Breakfast and Special Milk 
Programs?

    No, this provision only applies to the NSLP. Under the terms of 
section 4(e) of the Child Nutrition Act of 1966 (42 U.S.C. 1773(e)), 
USDA sets minimum nutritional standards for the School Breakfast 
Program (SBP) and, under this authority, requires that fluid milk be 
offered for breakfasts. Section 3 of the Child Nutrition Act of 1966 
(42 U.S.C. 1772) establishes the criteria for the Special Milk Program 
(SMP). Thus the SBP and the SMP already have the flexibility to offer 
any type(s) of milk.

Does This Provision Apply to the Afterschool Snack Service of the NSLP?

    Yes, the provision applies to afterschool snack program. Section 
17A(d) of the Richard B. Russell National School Lunch Act, (42 U.S.C. 
1766a(d)), requires that meal supplements served to children 
participating in the afterschool snack service meet the same 
requirements as reimbursable school lunches. Thus, this provision does 
affect the requirements for fluid milk served in the afterschool snack 
service.

What Specific Changes Does This Rule Make?

     Removes the requirement in 7 210.10 (m)(1)(i) that types 
of fluid milk offered be consistent with the types consumed in the 
previous year, and adds the requirement that milk in a variety of fat 
contents be offered.
     Codifies the authority for schools to offer flavored or 
unflavored fluid milk and lactose-free fluid milk. Schools had already 
been authorized to offer these varieties, but this rule makes the 
schools'' authority a part of the regulatory language.

Executive Order 12866

    This final rule has been determined to be non-significant and is 
not subject to review by the Office of Management and Budget under 
Executive Order 12866.

Public Law 104-4

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes a requirement 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, FNS 
generally prepares a written statement, including a cost-benefit 
analysis. This is done for proposed and final rules that have ``Federal 
mandates'' which may result in expenditures of $100 million or more in 
any one year by State, local, or tribal governments, in the aggregate, 
or by the private sector. When this statement is needed for a rule, 
section 205 of the UMRA generally requires FNS to identify and consider 
a reasonable number of regulatory alternatives. It must then adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule.
    This final rule contains no Federal mandates of $100 million or 
more in any one year (under regulatory provisions of Title II of the 
UMRA) for State, local, and tribal governments or the private sector. 
Thus, this final rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Regulatory Flexibility Act

    This final rule has been reviewed with regard to the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601-612). Roberto Salazar, 
Administrator of the Food and Nutrition

[[Page 70872]]

Service, has certified that, because this rule is technical in nature, 
it will not have a significant economic impact on a substantial number 
of small entities.

Executive Order 12372

    The National School Lunch Program is listed in the Catalog of 
Federal Domestic Assistance under No. 10.555. This program is subject 
to the provisions of Executive Order 12372, which requires 
intergovernmental consultation with State and local officials (7 CFR 
part 3015, subpart V, and final rule related notice at 48 FR 29115, 
June 24, 1983).

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. FNS has 
considered the impact of this rule on State and local governments and 
has determined that this rule does not have federalism implications. 
This rule does not impose substantial or direct compliance costs on 
State and local governments. Therefore, under Section 6(b) of the 
Executive Order, a federalism summary impact statement is not required.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is intended to have preemptive effect with 
respect to any State or local laws, regulations or policies which 
conflict with its provisions or which would impede its full 
implementation. This rule is not intended to have retroactive effect 
unless that is specified in the Effective Date section of the preamble 
of the final rule. Before any judicial challenge to the provisions of 
this rule or the application of its provisions, all applicable 
administrative procedures must be exhausted.

Civil Rights Impact Analysis

    Under USDA Regulation 4300-4, Civil Rights Impact Analysis, FNS has 
reviewed this final rule to identify and address any major civil rights 
impacts the final rule might have on minorities, women, and persons 
with disabilities. After a careful review of the rule's intent and 
provisions, FNS has determined that this final rule will not in any way 
limit or reduce participants ability to participate in the Child 
Nutrition Programs on the basis of an individual's or group's race, 
color, national origin, sex, age, or disability. FNS found no factors 
that would negatively and disproportionately affect any group of 
individuals.

Paperwork Reduction Act

    This final rule contains no paperwork burdens or information 
collection requirements that are subject to review by the Office of 
Management and Budget under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507).

Government Paperwork Elimination Act

    FNS is committed to compliance with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies to provide 
the public the option of submitting information or transacting business 
electronically to the maximum extent possible. This final rule contains 
no paperwork burdens or information collection requirements, and is 
thus in compliance with the GPEA.

Public Participation

    This action is being finalized without prior notice or public 
comment under authority of 5 U.S.C. 553(b)(3)(A) and (B). The 
amendments contained in this final rule are nondiscretionary in nature, 
and therefore do not necessitate the opportunity for the public to 
offer comment. Thus, the Department has determined in accordance with 5 
U.S.C. 553(b) that Notice of Proposed Rulemaking and Opportunity for 
Public Comment is unnecessary and contrary to the public interest and, 
in accordance with 5 U.S.C. 553(d), finds that good cause exists for 
making this action effective without prior public comment.

List of Subjects in 7 CFR Part 210

    Children, Commodity School Program, Food assistance programs, 
Grants programs--social programs, National School Lunch Program, 
Nutrition, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

0
Accordingly, 7 CFR part 210 is amended as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

0
1. The authority citation for 7 CFR part 210 continues to read as 
follows:

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

0
2. In Sec.  210.10, paragraph (m)(1)(i) is revised to read as follows:


Sec.  210.10  What are the nutrition standards and menu planning 
approaches for lunches and the requirements for afterschool snacks?

* * * * *
    (m) * * *
    (1) * * *
    (i) Under all menu planning approaches for students, schools must 
offer students fluid milk in a variety of fat contents. Schools may 
offer flavored or unflavored milk and lactose-free fluid milk.
* * * * *

    Dated: November 24, 2004.
Roberto Salazar,
Administrator, Food and Nutrition Service.
[FR Doc. 04-26934 Filed 12-7-04; 8:45 am]
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