70872 Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 

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.

■ Accordingly, 7 CFR part 210 is 

amended as follows:

PART 210—NATIONAL SCHOOL 

LUNCH PROGRAM

■ 1. The authority citation for 7 CFR part 

210 continues to read as follows:

Authority: 42 U.S.C. 1751–1760, 1779.

■ 2. In § 210.10, paragraph (m)(1)(i) is 

revised to read as follows:

§ 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] 

BILLING CODE 3410–30–P

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service 

7 CFR Parts 210 and 220

RIN 0584–AD63

Waiver of the Requirement To Use 

Weighted Averages in the National 

School Lunch and School Breakfast 

Programs

AGENCY: Food and Nutrition Service, 

USDA.

ACTION: Final rule.

SUMMARY: This final rule makes a 

technical change to the regulations 

governing the nutrient analysis of meals 

served under the National School Lunch 

Program and School Breakfast Program. 

Program regulations require school food 

authorities to use ‘‘weighted averages’’

for nutrient analysis of their school 

meals. Under this method, the nutrient 

content of school meals is measured 

(weighted) according to the quantity of 

food items chosen by students. This 

final rule extends, until September 30, 

2009, the waiver for conducting a 

weighted nutrient analysis. This rule 

responds to changes made under the 

Child Nutrition and WIC 

Reauthorization Act of 2004 and is 

intended to provide school food 

authorities with additional time to gain 

operational experience with nutrient 

analysis.

DATES: Effective January 7, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. 

Rosemary O’Connell, Section Chief, 

School Programs Section, Policy and 

Program Development Branch, Child 

Nutrition Division, Food and Nutrition 

Service at 703–305–2635.

SUPPLEMENTARY INFORMATION: Section 

110 of the Child Nutrition and WIC 

Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 70873

Reauthorization Act of 2004 (Pub. L. 

108–265) amended section 9(f)(5) of the 

Richard B. Russell National School 

Lunch Act, 42 U.S.C. 1758(f)(5), by 

waiving, until September 30, 2009, the 

requirement that school food authorities 

(SFAs) planning menus using nutrient 

standard menu planning conduct a 

weighted analysis of all foods offered to 

children as part of their reimbursable 

meals. A weighted nutrient analysis is 

based on the nutrient and calorie levels 

that each menu item selected 

contributes to the reimbursable meal. 

This requirement derives from the 

School Meal Initiative for Healthy 

Children, a comprehensive plan that 

focuses on the nutrient content of the 

school meals to ensure that children get 

the key nutrients and calories needed 

for their well-being. In the lunch 

program, this requirement is set forth at 

7 CFR 210.10(i)(5)(i); in the breakfast 

program it is located at 7 CFR 

220.8(e)(5)(i). 

Prior to Public Law 108–265, the 

National School Lunch Program 

regulations under 7 CFR 210.10 and 7 

CFR 220.8 waived compliance with the 

weighted averaging requirement until 

September 30, 2003. The ending date for 

the waiver was extended through Food 

and Nutrition Service (FNS) guidance in 

response to several Continuing 

Resolutions prior to enactment of Public 

Law 108–265. 

Through Public Law 108–265, 

Congress re-instated the waiver until 

September 30, 2009 in response to 

concerns about costs and complexity 

from program sponsors. However, 

weighted analysis is still considered a 

more accurate method for doing nutrient 

analysis of school meals because it is 

based on the actual number of each 

menu item selected by children, rather 

than simply being an average of the 

nutrients in an equal number of items 

included in the school menu. 

The waiver extension applies to all 

SFAs using nutrient analysis, as well as 

to State agencies conducting 

independent analysis as part of their 

ongoing review of schools’ compliance 

with the Federal nutrition standards. 

The provision does not prohibit State 

agencies from requiring schools to use 

weighted averages when doing nutrient 

analysis, nor does it prohibit State 

agencies from using weighted averages 

when doing nutrient analyses as a part 

of nutrition reviews of schools using 

food-based menu planning systems. 

Weighted analysis enables State 

agencies to provide well-targeted 

guidance on any nutrition 

improvements needed in a school menu. 

Executive Order 12866

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866 and, therefore, 

has not been reviewed by the Office of 

Management and Budget. 

Regulatory Flexibility Act 

This 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. Additionally, the Department of 

Agriculture does not anticipate any 

adverse fiscal impact on local schools. 

Public Law 104–4

Title II of the Unfunded Mandate 

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, 

FNS must generally prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to 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 

FNS to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

more cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. 

This rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, and tribal governments or 

the private sector of $100 million or 

more in any one year. Thus, this final 

rule is not subject to the requirements 

of sections 202 and 205 of the UMRA.

Executive Order 12372

The National School Lunch Program 

(NSLP) and the School Breakfast 

Program (SBP) are listed in the Catalog 

of Federal Domestic Assistance under 

No. 10.555 and No. 10.553, respectively. 

These programs are subject to the 

provisions of Executive Order 12372, 

which requires intergovernmental 

consultation with State and local 

officials. State agencies, local program 

sponsors, and NSLP and SBP advocates 

had the opportunity to provide input 

during reauthorization of the child 

nutrition programs. 

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 rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is not intended to 

have preemptive effect with respect to 

any State or local laws, regulations or 

policies which conflict with its 

provisions or which would otherwise 

impede its full implementation. This 

rule is not intended to have retroactive 

effect unless so specified in the Effective 

Date paragraph of the final rule. Prior to 

any judicial challenge to the provisions 

of this rule or the application of its 

provisions, all applicable administrative 

procedures must be exhausted. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. chap. 35; see 5 CFR part 

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 information collection 

requirements subject to approval by 

OMB under the Paperwork Reduction 

Act. 

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. The 

waiver extension implemented through 

this regulation does not require 

compliance with the GPEA. 

70874 Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 

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) to quickly implement the waiver 

extension granted by the Child Nutrition 

and WIC Reauthorization Act of 2004. 

Thus, the Department of Agriculture 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 

participation. 

Civil Rights Impact Analysis 

FNS has reviewed this final rule in 

accordance with the Department 

Regulation 4300–4, ‘‘Civil Rights Impact 

Analysis,’’ to identify any major civil 

rights impacts the rule might have on 

children on the basis of race, color, 

national origin, sex, religion, or 

disability. After a careful review of the 

rule’s intent and provisions, FNS has 

determined that it does not affect the 

participation of protected individuals in 

the National School Lunch Program.

List of Subjects 

7 CFR Part 210

Food and Nutrition Service, Grant 

programs–education, Grant programs–

health, Infants and children, Nutrition, 

Penalties, Reporting and record keeping 

requirements, School breakfast and 

lunch programs, Surplus agricultural 

commodities. 

7 CFR Part 220

Food and Nutrition Service, Grant 

programs–education, Grant programs–

health, Infants and children, Nutrition, 

Reporting and record keeping 

requirements, School breakfast and 

lunch programs.

■ Accordingly, 7 CFR Parts 210 and 220 

are amended as follows:

PART 210—NATIONAL SCHOOL 

LUNCH PROGRAM

■ 1. The authority citation for 7 CFR part 

210 continues to read as follows:

Authority: 42 U.S.C. 1751–1760, 1779.

§ 210.10 [Amended]

■ 2. In § 210.10:

■ a. The last sentence of paragraph 

(i)(5)(i) is amended by removing the year 

‘‘2003’’ and adding in its place the year 

‘‘2009’’.

■ b. The last sentence of paragraph 

(l)(4)(viii) is amended by removing the 

year ‘‘2003’’ and adding in its place the 

year ‘‘2009’’.

PART 220—SCHOOL BREAKFAST 

PROGRAM

■ 1. The authority citation for 7 CFR part 

220 continues to read as follows:

Authority: 42 U.S.C. 1773, 1779, unless 

otherwise noted.

§ 220.8 [Amended]

■ 2. In § 220.8:

■ a. The last sentence of paragraph 

(e)(5)(i) is amended by removing the year 

‘‘2003’’ and adding in its place the year 

‘‘2009’’.

■ b. The last sentence of paragraph 

(h)(3)(viii) is amended by removing the 

year ‘‘2003’’ and adding in its place the 

year ‘‘2009’’.

Dated: November 24, 2004. 

Roberto Salazar, 

Administrator, Food and Nutrition Service.

[FR Doc. 04–26933 Filed 12–7–04; 8:45 am] 

BILLING CODE 3410–30–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 905

[Docket No. FV04–905–5 FIR] 

Oranges, Grapefruit, Tangerines, and 

Tangelos Grown in Florida; 

Modification of the Procedures Used 

To Limit the Volume of Small Red 

Seedless Grapefruit Grown in Florida

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule that changed the procedures 

used to limit the volume of sizes 48 and 

56 red seedless grapefruit entering the 

fresh market under the marketing order 

for oranges, grapefruit, tangerines, and 

tangelos grown in Florida (order). The 

order is administered locally by the 

Citrus Administrative Committee 

(Committee). This rule continues in 

effect changes in the way a handler’s 

average week is calculated when 

quantities of small red seedless 

grapefruit are regulated and changes the 

provisions governing overshipments. 

This action makes the regulation more 

responsive to industry needs and better 

allocates base quantities.

DATES: Effective January 7, 2005.

FOR FURTHER INFORMATION CONTACT:

Doris Jamieson, Southeast Marketing 

Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 799 

Overlook Drive, Suite A, Winter Haven, 

Florida 33884; telephone: (863) 324–

3375, Fax: (863) 325–8793; or George 

Kelhart, Technical Advisor, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; 

telephone: (202) 720–2491, Fax: (202) 

720–8938. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; telephone: (202) 720–

2491, Fax: (202) 720–8938, or e-mail: 

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 84 and Marketing Order No. 905, 

both as amended (7 CFR part 905), 

regulating the handling of oranges, 

grapefruit, tangerines, and tangelos 

grown in Florida, hereinafter referred to 

as the ‘‘order.’’ The order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act.’’

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is not intended to 

have retroactive effect. This rule will 

not preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

not later than 20 days after the date of 

the entry of the ruling. 

This rule continues in effect changes 

in the procedures used to limit the 

volume of sizes 48 and 56 red seedless