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contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

70871

Vol. 69, No. 235

Wednesday, December 8, 2004

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’Connell@fns.usda.gov) 

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 costbenefit 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 

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