Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Rules and Regulations 38889 

may seek a civil remedy for the agency’s: 

Refusal to amend a record; refusal to comply 

with a request for access to records; failure 

to maintain accurate, relevant, timely and 

complete records; or failure to otherwise 

comply with an individual’s right to access 

or amend records. 

Dated: July 30, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–18620 Filed 8–4–09; 8:45 am] 

BILLING CODE 9111–28–P 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 210 

[FNS–2005–0009] 

RIN 0584–AD83 

Marketing and Sale of Fluid Milk in 

Schools 

AGENCY: Food and Nutrition Service, 

USDA. 

ACTION: Final Rule. 

SUMMARY: This rule finalizes the interim 

rule that implemented the statutory 

provision 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 ensures that there are no 

policies or procedures in place that have 

the effect of restricting the sale or 

marketing of fluid milk. 

DATES: Effective Date: This action is 

effective September 4, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Rothstein, 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; or 

(703) 305–2590; or 

CNDINTERNET@fns.usda.gov. 

SUPPLEMENTARY INFORMATION: 

I. 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, 42 U.S.C. 1758, 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 schoolsponsored events. The Food and 

Nutrition Service (FNS) published an 

interim rule on November 21, 2005 (70 

FR 70031) to prohibit school food 

authorities (SFAs) from entering into 

contracts that restrict the sale or 

marketing of fluid milk. 

Contracts between SFAs and vendors 

can be structured to restrict the variety 

or types of food choices a school may 

offer outside of the school meal 

programs. Prior to implementation of 

the interim rule, some exclusive 

vending contracts were found to have 

the potential to limit a school’s ability 

to sell or market fluid milk on school 

premises outside of the school meal 

programs; however, very few if any were 

found to actually limit the sale or 

marketing of fluid milk. 

The intent of this rule is to ensure no 

vending contract restricts a school’s 

ability or discretion to provide children 

access to fluid milk outside of the 

school meal programs. This rule does 

not require that participating schools 

sell or market fluid milk outside of the 

NSLP, or make fluid milk available at 

school-sponsored events. Furthermore, 

this rule does not affect the 

requirements for offering fluid milk as 

part of a reimbursable lunch in the 

NSLP as described in 7 CFR 210.10(m). 

For additional background 

information, please refer to the interim 

rule. 

II. Discussion of Public Comments and 

FNS Response 

FNS received a total of eight 

comments during the 180-day comment 

period that ended on May 22, 2006. The 

commenters included representatives 

from dairy industry trade associations 

(3), a school food authority (1), a State 

agency (1), and individuals (3). 

Of the eight comments received, six of 

the commenters, including one 

individual and the representatives from 

a school food authority, a State agency, 

and the trade associations, were in 

support of finalizing the requirements as 

established by the interim rule to 

prohibit any restriction of the sale or 

marketing of fluid milk in participating 

schools. 

One commenter in support of the 

provision also felt that the Department 

should extend the rulemaking to 

prohibit or restrict all exclusive 

beverage contracts in participating 

schools. 

Under existing NSLP regulations at 7 

CFR 210.21, SFAs must comply with 

requirements intended to ensure the 

integrity of procurement practices for 

the purchase of goods and services with 

funds from the nonprofit school 

foodservice account. Furthermore, NSLP 

regulations provide SFAs with the 

flexibility to enter into vending 

contracts that best meet their needs for 

foods and beverages sold outside of the 

school meal programs. This rulemaking 

is intended to ensure vending contracts 

do not directly or indirectly restrict the 

sale or marketing of fluid milk at any 

time or in any place on school premises 

or at school-sponsored events. Other 

procurement issues regarding vending 

contracts and agreements are outside the 

scope of this rulemaking. 

Two of the individual commenters 

expressed opposition to implementing 

the rule as final because of concern that 

it favors dairy industry interests and 

inhibits schools’ ability to choose 

whether to sell or market fluid milk. 

One commenter also disapproved of 

conventional dairy production 

practices. 

This rulemaking does not require or 

promote the sale or marketing of fluid 

milk outside the school meal programs. 

SFAs retain the authority to establish 

procurement contracts in accordance 

with Program regulations for foods sold 

outside of the school meal programs that 

best meet the nutritional and 

operational needs of their students and 

schools. 

Finally, discussion of conventional 

dairy production practices is outside the 

scope of this rulemaking. 

FNS considered all comments 

received and determined that these 

comments did not warrant any changes 

to the requirements established by the 

interim rule, or were outside the scope 

of the interim rule. FNS is issuing the 

interim rule as final without revision. 

III. Procedural Matters 

Executive Order 12866 

This 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. 

Regulatory Flexibility Act 

This rule has been reviewed with 

regard to the requirements of the 

Regulatory Flexibility Act (5 U.S.C. 

601–612). Implementation of this rule is 

not expected to impose a significant 

economic impact on a substantial 

number of small entities. No later than 

the beginning of School Year 2006– 

2007, SFAs were required by section 

102 of Public Law 108–265 to ensure 

that any existing or new vending 

contracts did not include provisions 

that restrict the sale or marketing of 

fluid milk. Therefore, the number of 

SFAs expected to be impacted by this 

rule is minimal. 


srobinson on DSKHWCL6B1PROD with RULES
38890 Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Rules and Regulations 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

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, 

the Department generally must 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 the 

Department 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) that 

impose costs on State, local, or tribal 

governments or to the private sector of 

$100 million or more in any one year. 

This rule is, therefore, not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

Executive Order 12372 

The National School Lunch Program 

is listed in the Catalog of Federal 

Domestic Assistance under No. 10.555. 

For the reasons set forth in the final rule 

in 7 CFR part 3015, Subpart V and 

related Notice [48 FR 29115, June 24, 

1983], this program is included in the 

scope of Executive Order 12372, which 

requires intergovernmental consultation 

with State and local officials. 

Since the NSLP is a Stateadministered, federally funded program, 

FNS headquarters and regional office 

staff have ongoing formal and informal 

discussions with State and local 

officials regarding program 

implementation and policy issues. This 

arrangement allows State and local 

agencies to provide feedback that 

contributes to any discretionary 

decisions made in establishing 

requirements for rules that govern the 

NSLP. 

Executive Order 13132 

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 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. Prior to any judicial challenge to 

the provisions of this rule or the 

application of its provisions, all 

applicable administrative procedures 

under § 210.18(q) or § 235.11(f) 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 rule might have on children on the 

basis of age, race, color, national origin, 

sex or disability. After a careful review 

of the rule’s intent and provisions, FNS 

has determined that this rule does not 

affect the participation of protected 

individuals in the Child Nutrition 

Programs. 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 from the public 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. 

E–Government Act Compliance 

The FNS is committed to complying 

with the E–Government Act of 2002, to 

promote the use of the Internet and 

other information technologies to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. 

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. 

PART 210—NATIONAL SCHOOL 

LUNCH PROGRAM 

■ Accordingly, the interim rule 

amending 7 CFR Part 210 which was 

published at 70 FR 70031 on November 

21, 2005, is adopted as a final rule 

without change. 

Dated: July 29, 2009. 

Julia Paradis, 

Administrator, Food and Nutrition Service. 

[FR Doc. E9–18690 Filed 8–4–09; 8:45 am] 

BILLING CODE 3410–30–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

[NRC–2008–0663] 

RIN 3150–AI53 

Industry Codes and Standards; 

Amended Requirements 

AGENCY: Nuclear Regulatory 

Commission (NRC). 

ACTION: Direct final rule. 

SUMMARY: The NRC is amending its 

regulations governing vessel head 

inspection requirements. This 

amendment revises the upper range of 

the percentage of axial flaws permitted 

in a specimen set used for the 

qualification of nondestructive 

examination systems (procedures, 

personnel and equipment), which are 

used in the performance of inservice 

inspection (ISI) of pressurized water 

reactor (PWR) upper vessel head 

penetrations. This amendment is being 

made as a result of the withdrawal of a 

stakeholder’s recommendation 

necessitated by a typographical error in 

the original recommendation with 

respect to the maximum percentage of 

flaws that should be oriented axially. 

DATES: Effective Date: The final rule will 

become effective October 19, 2009, 

unless significant adverse comments are 

received by September 4, 2009. A 

significant adverse comment is a 

comment where the commenter 

explains why the rule would be 


srobinson on DSKHWCL6B1PROD with RULES