[Federal Register Volume 70, Number 223 (Monday, November 21, 2005)]
[Rules and Regulations]
[Pages 70031-70033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22952]



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  Federal Register / Vol. 70, No. 223 / Monday, November 21, 2005 / 
Rules and Regulations  

[[Page 70031]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 210

RIN 0584-AD57


Marketing and Sale of Fluid Milk in Schools

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule.

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

SUMMARY: This interim rule implements legislative provisions to 
prohibit direct or indirect restrictions on the sale or marketing of 
fluid milk on school premises or at school-sponsored events, at any 
time or in any place, in schools participating in the National School 
Lunch Program. This rule is intended to ensure that there are no 
policies or procedures in place that have the effect of restricting the 
sale or marketing of fluid milk. In addition, we are making a 
nonsubstantive change by converting a section heading from a question 
to a statement. This is intended to conform the heading to the same 
style as all other section headings in the part.

DATES: Effective Date: This rule is effective December 21, 2005.
    Comment Date: Comments on this rule must be postmarked on or before 
May 22, 2006 to be assured of consideration. Comments will also be 
accepted via E-mail submission, at the address listed below. E-mail 
submissions must be received no later than 11:59 p.m. on May 22, 2006 
to be assured of consideration.

ADDRESSES: The Food and Nutrition Service invites interested persons to 
submit comments on this interim rule. Comments may be submitted by any 
of the following methods:
     E-mail: Send comments to [email protected]. The 
subject line must contain the phrase ``Marketing and Sale of Fluid Milk 
in Schools''.
     Fax: Submit comments by facsimile transmission to: (703) 
305-2879, attention Mr. Robert Eadie. Since comments are being accepted 
simultaneously on several separate rulemakings, please label your 
comments on this interim rule as, ``Marketing and Sale of Fluid Milk in 
Schools''.
     Mail: Comments should be addressed to Mr. Robert Eadie, 
Chief, Policy and Program Development Branch, Child Nutrition Division, 
Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park 
Center Drive, Room 640, Alexandria, Virginia 22302-1594.
     Hand Delivery or Courier: Deliver comments to 3101 Park 
Center Drive, Room 640, Alexandria, Virginia 22302-1594, during normal 
business hours of 8:30 a.m.-5 p.m.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
    All submissions will be available for public inspection at 3101 
Park Center Drive, Room 640, Alexandria, Virginia 22302-1594, Monday 
through Friday, 8:30 a.m.-5 p.m.

FOR FURTHER INFORMATION CONTACT: Mr. Christopher Davenport, School 
Programs Section, Policy and Program Development Branch, Child 
Nutrition Division, Food and Nutrition Service at 703-305-2590.

SUPPLEMENTARY INFORMATION: 

Background

    Section 102 of the Child Nutrition and WIC Reauthorization Act of 
2004 (Pub. L. 108-265) amended section 9(a)(2) of the Richard B. 
Russell National School Lunch Act by adding a provision that prohibits 
schools participating in the National School Lunch Program (NSLP), or 
any person approved by a school participating in the NSLP, from 
directly or indirectly restricting the sale or marketing of fluid milk 
products at any time or in any place on school premises or at school-
sponsored events.
    This rulemaking uses the term ``fluid milk'', as described in 7 CFR 
210.10(m)(1)(ii), instead of the term ``fluid milk products'' as used 
in Public Law 108-265. Although the Agricultural Marketing Service 
(AMS) of USDA has established a Federal definition for ``fluid milk 
products'' found at 7 CFR 1000.15; the Department prefers instead to 
continue to rely upon the each individual State's definition of fluid 
milk. Use of the AMS definition would have required identifying a list 
of allowable and unallowable milk-derived items that would be 
extensive, frequently changing and perhaps impossible to define.
    This provision may affect vending contracts, in that the intent of 
Public Law 108-265 is to ensure that exclusive vending contracts do not 
have the effect of preventing the sale or marketing of milk on school 
premises. The statute has the effect of prohibiting local educational 
agencies (LEAs) from entering into contracts that restrict the sale or 
marketing of fluid milk. The requirements for offering fluid milk as a 
part of a reimbursable lunch in the NSLP are described in 7 CFR 
210.10(m) and are not changed by this interim rule.
    A 2000 study sponsored by the Centers for Disease Control and 
Prevention, the School Health Policies and Programs Study, indicates 
that 54.6 percent of the school districts reported having a contract 
with a beverage company. In some instances, such vending contracts may 
limit a school's ability to offer other types of food choices outside 
of the school meal programs, including fluid milk. However, based on 
discussions with State agencies, we understand that very few if any 
current vending contracts actually limit the sale or marketing of fluid 
milk.
    Per Public Law 108-265, the effective date of this provision was 
July 1, 2005. Therefore, there may be LEAs with existing contracts in 
place that contain provisions which conflict with the statutory 
provision and this rulemaking. To come into compliance with these 
requirements, these LEAs may either conduct a new procurement or amend 
these existing contracts to conform with the statute. LEAs should 
consult with their legal counsel to determine the appropriate course of 
action. In either case, the action should be taken at the earliest 
possible date, but no later than the renewal of the current procurement 
contract, or the beginning of School Year 2006-2007, whichever comes 
first. All subsequent contracts must reflect the statutory and 
regulatory requirements.

[[Page 70032]]

    This provision does not require that participating schools sell or 
market fluid milk outside of the NSLP, or make fluid milk available at 
school sponsored events. For example, schools that have a policy of no 
a la carte sales are not required to change such policies. Instead, 
this provision is intended to ensure that there are no policies or 
procedures in place that have the effect of specifically restricting 
the sale or marketing of fluid milk.
    Finally, we are converting the form of the Section heading of 7 CFR 
210.10 from a question to a statement. This nonsubstantive change to 
the heading will not change the basic meaning of the heading, nor 
affect the meaning of any of the subsections. The only effect will be 
to conform this heading to the form used for all of the other headings 
in part 210.

Why Is This Rule Being Issued as an Interim Rule and Not a Proposed 
Rule?

    Section 502(b)(4) of Public Law 108-265 makes the provisions of 
section 102 of the law addressed in this rulemaking effective July 1, 
2005. Section 501(b) of Public Law 108-265 states that the Secretary 
may promulgate interim regulations to implement those provisions. The 
Secretary has deemed the requirements of this provision sufficient to 
warrant just such an interim regulation, without regard to the 
Administrative Procedure Act's notice and prior comment provisions at 5 
U.S.C 553; the Statement of Policy of the Secretary of Agriculture 
effective July 24, 1971 (36 FR 13804) relating to notices of proposed 
rulemaking and public participation in rulemaking; and the Paperwork 
Reduction Act at 44 U.S.C. chapter 35. For these reasons, we are not 
taking public comment prior to promulgation of this interim rule.
    To benefit from the experiences of program operators, the Food and 
Nutrition Service (FNS) decided to issue this rule as an interim, 
rather than a final rule, in order to facilitate public comment. FNS 
intends to issue a final rule after consideration of the comments 
received on this rule.

What Specific Changes Does This Rule Make?

    This interim rule adds a paragraph to 7 CFR 210.10(m) and 7 CFR 
210.21(e), stating that schools and LEA's are prohibited from directly 
or indirectly restricting the sale or marketing of fluid milk, as 
defined in 7 CFR 210.10(m)(1)(ii), on school premises or at school-
sponsored events at any time or in any place. This interim rule also 
makes a nonsubstantive change to the heading of 7 CFR Part 210.10, 
conforming it to other section headings in the Part by converting it 
from a question to a statement.

Executive Order 12866

    This interim 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 interim 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 interim 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 interim rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Regulatory Flexibility Act

    This interim 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 Service, has certified that 
this rule will not have a significant economic impact on a substantial 
number of small entities. The number of LEAs that will be impacted by 
policy or contract changes as a result of this rule is expected to be 
minor.

Executive Order 12372

    The National School Lunch Program is listed in the Catalog of 
Federal Domestic Assistance under No. 10.555. This program is included 
in the scope 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). 
Shortly after the passage of Public Law 108-265, FNS held discussions 
with State education agencies that administer child nutrition programs 
and with organizations representing State and local public health 
agencies. These discussions provided FNS an opportunity to inform State 
and local officials about the new requirements regarding the marketing 
and sale of fluid milk and to hear their concerns. However, the pre-
emptive status of the law and the requirement to implement the 
provision by July 1, 2005, has precluded any need of, or opportunity 
for, formal consultation. The interim nature of this rule will, 
however, allow for the final rule to reflect changes based on local 
experience, provided they are consistent with the law.

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 interim 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 interim 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 interim rule to identify and address any major civil 
rights impacts the rule might have on minorities, women, and persons 
with

[[Page 70033]]

disabilities. After a careful review of the rule's intent and 
provisions, FNS has determined that this 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 (The Child Nutrition Programs' 
nondiscrimination policy can be found at 7 CFR 210.23(b).). FNS found 
no factors that would negatively and disproportionately affect any 
group of individuals.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 
1320) requires that the Office of Management and Budget (OMB) approve 
all collections of information by a Federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
This rule does not contain any information collection requirements 
subject to approval by OMB under the Paperwork Reduction Act of 1995.

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.

Public Participation

    FNS has determined, in accordance with 5 U.S.C. 553(b), that Notice 
of Proposed Rulemaking and opportunity for public comments 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. In section 501(b) of Public Law 
108-265, Congress specifically afforded the Secretary the option of 
implementing this rulemaking without prior notice and comment. In 
addition, the provisions of this interim rule reflect mandatory 
statutory requirements which are non-discretionary. The Department, 
however, wishes to receive comments that might improve the 
administration of these mandatory requirements.

List of Subjects in 7 CFR Part 210

    Grant programs-education, Grant programs-health, Infants and 
children, Nutrition, Penalties, Reporting and recordkeeping 
requirements, School breakfast and lunch programs, Surplus agricultural 
commodities.

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 the section heading is revised and a new paragraph 
(m)(3) is added to read as follows:


Sec.  210.10  Nutrition standards and menu planning approaches for 
lunches and requirements for afterschool snacks.

* * * * *
    (m) * * *
    (3) Restrictions on the sale of milk. A school participating in the 
Program, or a person approved by a school participating in the Program, 
must not directly or indirectly restrict the sale or marketing of fluid 
milk (as described in paragraph(m)(1)(ii) of this section) at any time 
or in any place on school premises or at any school-sponsored event.
* * * * *

0
3. In Sec.  210.21, add a new paragraph (e) to read as follows:


Sec.  210.21  Procurement.

* * * * *
    (e) Restrictions on the sale of milk. A school food authority 
participating in the Program, or a person approved by a school 
participating in the Program, must not directly or indirectly restrict 
the sale or marketing of fluid milk (as described in 
paragraph(m)(1)(ii) of this section) at any time or in any place on 
school premises or at any school-sponsored event.

    Dated: November 10, 2005.
Roberto Salazar,
Administrator, Food and Nutrition Service.
[FR Doc. 05-22952 Filed 11-18-05; 8:45 am]
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