[Federal Register Volume 71, Number 217 (Thursday, November 9, 2006)]
[Proposed Rules]
[Pages 65753-65758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9136]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / 
Proposed Rules

[[Page 65753]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

RIN 0584-AD58


Fluid Milk Substitutions in the School Nutrition Programs

AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule reflects amendments made by section 102 of 
the Child Nutrition and WIC Reauthorization Act of 2004 to the Richard 
B. Russell National School Lunch Act regarding substitutes for fluid 
milk in the National School Lunch Program. This rule would implement a 
legislative provision on milk substitutes that follows current 
regulations on menu exceptions for students with disabilities and would 
add new requirements for substitutions for fluid milk for children with 
medical or other special dietary needs.
    Specifically, this proposed rule would establish nutritional 
standards for nondairy beverage alternatives to fluid milk, as well as 
requirements for substitutions for fluid milk for non-disabled students 
with medical or special dietary needs. It would allow the parent or 
legal guardian of a child with medical or special dietary needs to 
request a fluid milk substitute. In addition, it would allow schools to 
select acceptable fluid milk substitutes that meet the nutritional 
standards established in this proposed rule, and would continue to make 
school food authorities responsible for substitution expenses that 
exceed the Federal reimbursement.
    This rule, as proposed, would ensure consistency among milk 
substitutes offered in the school lunch and breakfast programs, and 
would make certain that students who consume nondairy beverage 
alternates receive important nutrients found in fluid milk.

DATES: To be assured of consideration, written comments must be 
postmarked on or before January 8, 2007.

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:
    <bullet> E-Mail: Send comments to <a href="/cdn-cgi/l/email-protection#2d6e63697d7f627d627e6c616d6b637e03787e696c036a627b"><span class="__cf_email__" data-cfemail="57141913070518071804161b17111904790204131679101801">[email protected]</span></a>. The 
subject line must include the words ``Fluid Milk Substitutions''.
    <bullet> Fax: Submit comments by facsimile transmission to: (703) 
305-2879, attention Robert Eadie.
    <bullet> Mail: Comments should be addressed to Mr. Robert Eadie, 
Chief, Policy and Program Development Branch, Child Nutrition Division, 
Food and Nutrition Service, Department of Agriculture, 3101 Park Center 
Drive, Room 634, Alexandria, Virginia 22302-1594. All written 
submissions will be available for public inspection at this location 
Monday through Friday, 8:30 a.m.-5 p.m.
    <bullet> Hand Delivery or Courier: Deliver comments to 3101 Park 
Center Drive, Room 634, Alexandria, Virginia 22302-1594, during normal 
business hours of 8:30 a.m.-5 p.m.
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.

FOR FURTHER INFORMATION CONTACT: William Wagoner or Marisol Benesch, 
Policy and Program Development Branch, Child Nutrition Division, Food 
and Nutrition Service at (703) 305-2590.

SUPPLEMENTARY INFORMATION:

I. Background

    National School Lunch Program (NSLP) regulations under 7 CFR 
210.10(g)(1) require schools to make food substitutions for children 
whose disabilities restrict their diet, and give schools discretion to 
make substitutions for students with medical or other special dietary 
needs. The need for substitutions must be supported by a statement 
signed by a physician in the case of a student with a disability, or by 
a recognized medical authority in the case of a student who is not 
disabled. The substitution rules in the NSLP also apply to the School 
Breakfast Program (SBP), pursuant to regulations at 7 CFR 220.8(g).
    Section 102 of the Child Nutrition and WIC Reauthorization Act of 
2004 (Pub. L. 108-265; June 30, 2004) amended section 9(a)(2) of the 
Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 
1758(a)(2), to include the above regulatory provisions and added the 
following requirements for substitutions for milk:
    <bullet> Allows schools to make substitutions for students who have 
medical or dietary needs, other than a disability, and accept a 
statement from a parent or guardian in lieu of the statement from a 
recognized medical authority;
    <bullet> Adds the requirement, except in the case of a student with 
a disability, that nondairy beverages offered for substitution must be 
``nutritionally equivalent to fluid milk'' and meet the nutritional 
standards set by the Secretary of Agriculture;
    <bullet> Grants schools discretion to select acceptable substitutes 
that meet the nutritional standards established by the Secretary;
    <bullet> Requires schools to inform the State agency if they choose 
to offer substitutes for fluid milk other than for students with a 
disability; and
    <bullet> Requires school food authorities (SFAs) to pay for 
substitution expenses that exceed Federal reimbursements.
    The Food and Nutrition Service (FNS) has issued separate guidance 
for accommodating children with special dietary needs in the school 
meal programs. The publication ``Accommodating Children with Special 
Dietary Needs in the School Nutrition Programs'' is available at the 
FNS Web site (http://www.fns.usda.gov/cnd/Guidance/special_dietary_needs.pdf).
    This proposed rule also makes a non-substantive change to the 
heading of 7 CFR 210.10 and 7 CFR 220.8 by converting each from a 
question to a statement. This change is intended to conform the 
headings to the same style as all other section headings in 7 CFR Parts 
210 and 220. These non-substantive changes will not change the basic 
meaning of the headings, nor affect the meaning of any of the 
subsections.

II. Fluid Milk Requirement

    Schools participating in the school meals programs are required to 
offer fluid milk as part of a reimbursable meal pursuant to section 
9(a)(2) of the NSLA, 42 U.S.C. 1758(a)(2) and 7 CFR 210.10(m)(1)(ii) 
and 7 CFR 220.8(i)(1). This requirement is in place because

[[Page 65754]]

research shows that milk consumption is especially important to bone 
health during childhood and adolescence. Section 102 of Public Law 108-
265 expands section 9(a)(2) and continues the current milk requirement, 
and gives schools the option to offer an acceptable nondairy substitute 
to non-disabled children who cannot drink fluid milk for medical or 
other special dietary reasons.

III. Substitutions for Disability Reasons

    Current regulations governing the NSLP and SBP require schools to 
make substitutions for children who cannot consume the regular lunch, 
afterschool snack or breakfast due to their disability, when that need 
is certified by a physician and the substitution needed for any food 
item (including fluid milk) is specified with a diet order or diet 
prescription. The regulations at 7 CFR 210.10(g)(1) already contain 
these requirements. This proposed rule retains the requirements as 
currently stated, but reorganizes them for clarity to distinguish 
between the requirements for substitutions for disabled and non-
disabled students.

IV. Substitutions for Non-Disability Reasons

    Over the years, Federal, State, and local program officials have 
received requests from parents and caregivers for alternatives to fluid 
milk for children who have milk intolerances or allergies that restrict 
their diet but do not meet the definition of disability. Under the 
current regulations, schools may offer non-disabled students 
substitutes for fluid milk when supported by a statement from a 
recognized medical authority. This proposed regulation would require 
that milk substitutions for non-disabled students meet the nutritional 
standards established in this rule and would allow schools the 
discretion to offer acceptable substitutes. This proposed rule would 
also permit schools to accept a written request from a parent or legal 
guardian in lieu of a statement from a medical authority. These and 
other statutory provisions are discussed in more detail in the 
following sections.

Nutritional Standards for Milk Substitutes

    The NSLA now allows schools the option to offer a nondairy beverage 
that is nutritionally equivalent to fluid milk for non-disabled 
children with medical or special dietary needs. To ensure that children 
receive adequate substitutes, section 9(a)(2)(B) of the NSLA, 42 U.S.C. 
1758(a)(2)(B), requires the Secretary to establish nutritional 
standards for nondairy beverages to assure that they are nutritionally 
equivalent to milk. That section also requires that milk substitutes be 
fortified with calcium, protein, vitamin A, and vitamin D to levels 
found in fluid milk.
    The NSLA also authorizes the Secretary to specify other nutrients 
in addition to the ones required by the statute. Existing research 
indicates that fluid milk is a major source of a number of other 
nutrients. According to the Food and Drug Administration (FDA), an 
``excellent source'' (as found in 21 CFR 101.54(b)(1)) is a food item 
that contributes at least 20 percent of the daily need of a specified 
nutrient per serving. One serving (1 cup) of milk fulfills the FDA's 
nutrient content claim of ``excellent source'' for calcium, riboflavin 
and phosphorus. In addition, data from the Continuing Survey of Food 
Intakes by Individuals (see table below) shows that milk is the primary 
food source for children for the following vitamins and minerals: 
Vitamin A, riboflavin, vitamin B-12, calcium, magnesium, phosphorus, 
and potassium. Given the special role of milk in providing these 
nutrients to children, the Department is proposing to extend the 
requirements for nondairy milk substitutes to also include minimum 
nutrient levels for riboflavin, vitamin B-12, magnesium, phosphorus, 
potassium.

   Summary of Milk Contributions to Total Nutrient Intakes Among U.S.
               Children, 2-18 Years of Age, 1994-96, 1998
------------------------------------------------------------------------
                                                             Percent of
                   Nutrient                        Rank         total
------------------------------------------------------------------------
Energy.......................................            1           9.0
Carbohydrate.................................            5           6.0
Protein......................................            1          16.4
Total fat....................................            1          10.4
Saturated fat................................            1          17.8
Polyunsaturated fat..........................           10           2.2
Monosaturated fat............................            4           7.8
Cholesterol..................................            3          13.5
Fiber........................................  ...........          <1
Vitamin C....................................            7           3.5
Vitamin E....................................           11           3.7
Vitamin A (RE)...............................            1          20.2
Carotene.....................................            6           2.3
Folate.......................................            4           6.4
Thiamin......................................            3           8.1
Riboflavin...................................            1          27.2
Niacin.......................................  ...........          <1
Vitamin B-6..................................            2           8.5
Vitamin B-12.................................            1          31.5
Calcium......................................            1          45.7
Phosphorus...................................            1          27.3
Sodium.......................................            4           5.4
Potassium....................................            1          22.4
Iron.........................................  ...........          <1
Zinc.........................................            3          12.4
Magnesium....................................            1          18.9
Copper.......................................           12           3.1
Selenium.....................................            3           8.7
Caffeine.....................................  ...........          <1
Theobromine..................................  ...........         <1
------------------------------------------------------------------------
 Derived from: 1994-96, 1998 Continuing Survey of Food Intakes by
  Individuals. Dietary Source Nutrient Database for USDA Survey Food
  Codes.

    In setting minimum nutritional standards for milk substitutes, we 
examined the nutrient levels found in various types of milk using 
USDA's Nutrient Database for Dietary Studies 1.0.\1\ Among the 
varieties of fluid milk, whole milk typically provides the lowest 
levels of several important nutrients; therefore, we used whole milk 
(3.25% milkfat, the lowest fat level allowable for whole milk) as a 
benchmark for all nutrients except vitamins A and D. The chosen levels 
of vitamins A and D were based upon FDA's definition of ``excellent 
source'' and the milk fortification levels required by the FDA.
---------------------------------------------------------------------------

    \1\ USDA Food and Nutrient Database for Dietary Studies 1.0. 
2004. Beltsville, MD: Agricultural Research Service, Food Surveys 
Research Group.
---------------------------------------------------------------------------

    Based on the above, this rule proposes that allowable fluid milk 
substitutes provide, at a minimum, the nutrients listed on the 
following table. The following table also shows the Recommended Daily 
Intake (RDI) for each of these nutrients and the percentage of the RDI 
provided by a cup of whole milk (values are RDI unless specified as 
Daily Reference Value (DRV)).

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                 Nutrient                            Per cup                      RDI               Percentage
----------------------------------------------------------------------------------------------------------------
Calcium..................................  276 mg....................  1000 mg..................         27.6

[[Page 65755]]

 
Protein..................................  8 g.......................  50 g (DRV)...............         16.0
Vitamin A................................  500 IU....................  5000 IU..................         10.0
Vitamin D................................  100 IU....................  400 IU...................         25.0
Magnesium................................  24 mg.....................  400 mg...................          6.00
Phosphorus...............................  222 mg....................  1000 mg..................         22.2
Potassium................................  349 mg....................  3500 mg (DRV)............         10.0
Riboflavin...............................  0.44 mg...................  1.7 mg...................         25.9
Vitamin B 12.............................  1.1 mcg...................  6.0 mcg..................         18.3
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 Sources: USDA National Nutrient Database for Standard Reference, Release 17 (2004). FDA Consumer Special Issue:
  Focus on Food Labeling, ``Daily Values Encourage Healthy Diet'', May 1993.

    Fortification of nondairy milk substitutes used in the school 
nutrition programs must follow FDA guidelines, particularly those 
outlined in 21 CFR 101.9. In addition, Appendix O of the publication 
entitled ``Grade `A' Pasteurized Milk Ordinance'', issued by the FDA's 
Center for Food Safety and Applied Nutrition, provides guidance on 
upper bounds of vitamin A and vitamin D fortification.
    In light of the recommendations of the ``2005 Dietary Guidelines 
for Americans'' on fats and added sugars, and current trends in 
childhood overweight, the Department considered establishing maximum 
levels for nondairy milk substitutes for additional energy-bearing 
nutrients available on the Nutrition Facts Panel--either total calories 
(energy) or total fat, saturated fat, trans fat and total sugars--to 
limit their contribution toward the total calories. We refrained from 
doing so for the following reasons.
    First, we examined the levels of energy, total fats, saturated 
fats, and sugars generally available in regular and chocolate-flavored 
fluid whole milk. Chocolate-flavored whole milk typically has the 
highest levels of calories and total sugar among all fluid milk 
varieties. When we compared the nutrient levels in chocolate-flavored 
whole milk and in a typical chocolate-flavored soy-based beverage 
alternative (see following table), we concluded that the commercial 
marketplace already provides a level of energy, total fat, saturated 
fat, and total sugars in milk substitutes that is below the levels 
contained in milks currently allowable in the NSLP and SBP, and further 
special regulatory restriction for milk substitutes does not seem 
warranted.

----------------------------------------------------------------------------------------------------------------
       Milk type  (1 cup)            Energy (kcal)       Total fat (g)     Saturated fat (g)    Sugars (total)
----------------------------------------------------------------------------------------------------------------
Milk, chocolate, commercial,      208 kcals per cup.  8.48 g per cup....  5.260 g per cup...  23.85 g per cup.
 whole.
Milk, soy, ready-to-drink, not-   118 kcals per cup.  4.58 g per cup....  0.514 g per cup...  10.8 g per cup.
 baby's, chocolate.
----------------------------------------------------------------------------------------------------------------
Source: USDA Food and Nutrient Database for Dietary Studies, 2.0. 2006. Beltsville, MD: Agricultural Research
  Service, Food Surveys Research Group.

    Second, FNS believes that it is important to be consistent in our 
definition of allowable milk substitutes across our Federal nutrition 
programs. Currently, the Supplemental Program for Women Infants and 
Children (WIC) has proposed a definition for allowable soy-based 
beverages (71 FR 44801) that reflects the minimum nutrient and energy 
levels proposed by this rule. Establishing maximum nutrition standards 
for energy or total fat, saturated fat, trans fat and sugar levels for 
milk substitutes in the school meals program would, therefore, generate 
inconsistency in our nutrition programs.
    Third, in regard to sugar levels and total diet quality, the 
``Report of the Dietary Guidelines Advisory Committee on the Dietary 
Guidelines for Americans, 2005,'' notes that sugars can improve the 
palatability of foods and beverages that otherwise might not be 
consumed. Additionally, not all foods that contain added sugars are 
poor sources of nutrients. The Report also notes that, on average, the 
quality of children's and adolescents' total diet is positively 
affected by the consumption of sweetened dairy foods and beverages. The 
Department recognizes that the ``2005 Dietary Guidelines for 
Americans'' recommends choosing foods and beverages with little added 
sugars or caloric sweeteners, and is interested in encouraging 
reasonably low levels of added sugars in milk substitutes. However, we 
do not believe that it is necessary to establish a regulatory maximum 
level for sugars in milk substitutes when one is not established for 
fluid milk.
    Fourth, the Department also considered the potential impact of 
limiting total and saturated fats in milk substitutes. While fats are a 
significant contributor of calories, the Department recognizes that 
they are part of a healthful diet and facilitate the absorption of 
important nutrients found in fluid milk such as vitamins A and D. 
Current commercially available milk substitutes do not exceed the fat 
or saturated fat levels of flavored whole milk, as seen in the table 
above.
    For the reasons stated above, the Department decided not to propose 
maximum standards for calories or total fat, saturated fat, trans fat 
and sugars for milk substitutes. However, since the intent is to 
provide products that are reasonable substitutes for fluid milk, the 
Department will recommend that when made available, schools use the 
profile of unflavored milk with respect to calories, fats, and sugars 
as the guide for evaluating fluid nondairy milk substitutes. We further 
recommend that schools do not offer fluid nondairy milk substitutes 
that exceed maximum levels for these nutrients based on the nutrient 
profile of chocolate-flavored whole milk. Guidance and technical 
assistance from the Department would emphasize the importance of 
offering nondairy milk substitutes that meet the proposed minimum 
requirements but do not exceed the levels of calories, total fat, 
saturated fat, and sugars commonly found in the milks offered locally 
in school meals. Milk substitutes offered for non-medical reasons will 
be

[[Page 65756]]

included in the nutrient analyses required under existing regulations.

Selection of Nondairy Beverages by Schools

    While the NSLA requires the Secretary to identify the nutritional 
requirements for an equivalent beverage, a school wishing to offer 
fluid milk substitutes for non-disabled children would be responsible 
for choosing nondairy beverages that would meet the nutritional 
standards identified in this proposed rule. This would require that a 
school review documentation of the nutrients in nondairy beverages to 
determine if the beverages comply with the regulatory nutritional 
standards for milk substitutes. This proposed rule would allow a school 
to offer the nondairy beverage(s) that it has identified and selected 
as acceptable fluid milk substitute(s) based on the nutritional 
standards established by the Secretary. To the extent practicable, 
unless otherwise specified by a physician, the alternate nondairy 
beverages for disabled students should meet the same nutritional 
standards that apply to milk substitutes for non-disabled students.

Written Statement From Student's Parent or Legal Guardian

    We intend to allow schools to fulfill the requests for fluid milk 
substitutes for children with medical and special dietary needs without 
creating additional paperwork or administrative burdens for parents or 
schools. Therefore, this proposed rule would allow a student's parent 
or legal guardian to submit a written request for a nondairy substitute 
by attaching it to the application form for free and reduced price 
meals or by submitting the request separately in writing at any time, 
provided that it identifies the student's medical or other special 
dietary needs. The request for substitutions would remain in effect 
until the student's parent or legal guardian revokes such request in 
writing, or until the school discontinues this option.

State Agency Notification

    Section 9(a)(2)(B)(ii) of the NSLA requires that schools inform the 
State agency (SA) if they choose to offer substitutes for fluid milk 
other than for children with a disability. Recognizing the State/local 
administrative structure, this rule would require each SFA to report to 
the State agency on behalf of its schools. According to this proposed 
rule, the SA would be able to specify how SFAs must notify it of this 
decision. FNS would expect the SA to have information on file regarding 
schools that offer this option for review upon request.

Documentation for Substitutions

    Section 9(a)(2)(B)(ii) of the NSLA also requires that a request for 
milk substitution be in writing and identify the student's medical or 
special dietary need. This proposed rule would require schools to 
retain documentation such as the written statement from a medical 
authority or the student's parent or guardian, and product information 
certifying the nutritional content of the milk substitute.

Expenses Related to Milk Substitutions

    In accordance with section 9(a)(2)(B)(iii) of the NSLA, schools 
would cover expenses incurred in providing allowable fluid milk 
substitutions that are in excess of expenses covered by program 
reimbursements. Because milk substitutions are granted on a case by 
case basis and a school selects the acceptable nondairy beverage(s), we 
anticipate that in most cases the substitution could be accommodated 
without undue financial hardship. These substitutions would be 
allowable costs and chargeable to the nonprofit school food service 
account.

V. Procedural Matters

Executive Order 12866

    This proposed rule has been determined to be significant and was 
reviewed by the Office Management and Budget in conformance with 
Executive Order 12866.

Regulatory Impact Analysis

Need for Action
    This action is needed to implement the provisions of Public Law 
108-265 regarding the substitution of fluid milk in the NSLP and SBP. 
In accordance with the NSLA, this proposed rule would establish 
nutritional standards for milk substitutes, set minimum requirements 
for the substitution of milk for students with medical or special 
dietary needs, allow schools to identify acceptable substitutes that 
meet the nutritional standards established by the Secretary, and make 
school food authorities responsible for substitution expenses that 
exceed Federal reimbursement.
Cost-Benefit Assessment
    Previous analyses by FNS and the Congressional Budget Office of the 
provision being implemented in this rule estimated a cost of less than 
$500,000 annually. Little cost is anticipated because it is expected 
that few students will request a non-dairy alternative to fluid milk; 
schools are not required to provide a substitution; and the Federal 
government will not reimburse any additional cost for non-dairy 
alternatives. This rule is not expected to significantly increase 
administrative burdens at the national, state, or local level. The 
benefits of this rule include nutritional consistency among milk 
substitutes offered in the school meal programs and reduced barriers 
for students who cannot consume fluid milk.

Regulatory Flexibility Act

    This proposed rule has been reviewed with regard to the 
requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-
612). Nancy Montanez Johner, Under Secretary of Food, Nutrition, and 
Consumer Services has certified that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
participating in the NSLP and SBP. The requirement to provide 
substitutes for students with disabilities is not new, and the 
requirement concerning milk substitutes for non-disability reasons is 
only triggered if a school chooses to offer milk substitutes for non-
disabled students with medical or special dietary needs.

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 proposed 
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 proposed rule is, therefore, not subject to the requirements 
of sections 202 and 205 of the UMRA.

[[Page 65757]]

Executive Order 12372

    The NSLP is listed in the Catalog of Federal Domestic Assistance 
under No. 10.555 and the SBP is listed under No. 10.553. 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), these Programs are 
included in the scope of Executive Order 12372, which requires 
intergovernmental consultation with State and local officials.
    Since the NSLP and SBP are State-administered, federally funded 
programs, our national headquarters staff and regional offices have 
formal and informal discussions with State and local officials on an 
ongoing basis regarding program implementation and policy issues. This 
arrangement allows State and local agencies to provide feedback that 
forms the basis for any discretionary decisions made in this and other 
rules.

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 would 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 proposed 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 proposed 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 must be exhausted.

Civil Rights Impact Analysis

    FNS has reviewed this proposed rule in accordance with the 
Department Regulation 4300-4, ``Civil Rights Impact Analysis,'' 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 careful review of the rule's intent and provisions, 
FNS has determined that it would not have a deleterious effect on the 
participation of protected individuals in the NSLP and SBP. The rule's 
sole effect is to facilitate nutritionally adequate nondairy beverages 
for participants that have a disability or medical condition that 
precludes their consumption of fluid milk.

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. 
The recordkeeping and reporting burden contained in this rule is 
approved under OMB No. 0584-0006. This proposed rule does not contain 
any new information collection requirements subject to approval by OMB 
under the Paperwork Reduction Act of 1995.

E-Government Act Compliance

    The Food and Nutrition Service is committed to complying with the 
E-Government Act, 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

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.

7 CFR Part 220

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

    Accordingly, 7 CFR parts 210 and 220 are proposed to be 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 Sec.  210.10:
    a. Revise the section heading;
    b. Revise paragraph (g)(1);
    c. Redesignate paragraphs (g)(2) and (g)(3) as paragraphs (g)(3) 
and (g)(4), respectively, and add a new paragraph (g)(2); and
    d. Redesignate paragraph (m)(3) as paragraph (m)(4) and add a new 
paragraph (m)(3).
    The revisions and additions read as follows:


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

* * * * *
    (g) * * *
    (1) Exceptions for disability reasons. Schools must make 
substitutions in lunches and afterschool snacks for students who are 
considered to have a disability under 7 CFR part 15b and whose 
disability restricts their diet. Substitutions must be made on a case 
by case basis only when supported by a written statement of the need 
for substitutions that includes the student's disability, an 
explanation of why the disability restricts the student's diet, the 
major life activity affected by the disability, the food(s) to be 
omitted from the student's diet, and the recommended alternative foods. 
Such statement must be signed by a licensed physician.
    (2) Exceptions for non-disability reasons. Schools may make 
substitutions for students without disabilities who cannot consume the 
regular lunch or afterschool snack because of medical or other special 
dietary needs. Substitutions must be made on a case by case basis only 
when supported by a written statement of the need for substitutions 
that identifies the medical or special dietary need that restricts the 
student's diet, the foods to be omitted from the student's diet and, 
except for fluid milk, recommended alternative foods. Such statement 
must be signed by a recognized medical authority.
    (i) Milk substitutions for non-disability reasons. Schools may make 
substitutions for fluid milk for non-disabled students who cannot 
consume fluid milk due to medical or special dietary needs. A school 
that selects this option may offer the nondairy beverage(s) of its 
choice, provided the beverage(s) meet the nutritional standards 
established under paragraph (m) of this section. Expenses incurred in 
providing substitutions for fluid milk that exceed program 
reimbursements must be paid by the school food authority.
    (ii) Requisites for milk substitutions.

[[Page 65758]]

    (A) A school food authority must inform the State agency if any of 
its schools choose to offer fluid milk substitutes other than for 
students with disabilities; and
    (B) A medical authority or the student's parent or legal guardian 
must submit a written request for a fluid milk substitute identifying 
the medical or other special dietary need that restricts the student's 
diet.
    (iii) Substitution approval. The approval for fluid milk 
substitution shall remain in effect until the medical authority or the 
student's parent or legal guardian revokes such request in writing, or 
until such time as the school changes its substitution policy for non-
disabled students.
* * * * *
    (m) * * *
    (3) Milk substitutes. If a school chooses to offer one or more 
substitutes for fluid milk for non-disabled students with medical or 
special dietary needs, all substitute beverages offered must be 
fortified to meet 276 milligrams calcium per cup, 8 grams protein per 
cup, 500 International Units vitamin A per cup, 100 International Units 
vitamin D per cup, 24 milligrams magnesium per cup, 222 milligrams 
phosphorus per cup, 349 milligrams potassium per cup, 0.44 milligrams 
riboflavin per cup, and 1.1 micrograms vitamin B12 per cup, in 
accordance with fortification guidelines issued by the Food and Drug 
Administration. A school need only offer the nondairy beverage(s) that 
it has identified as allowable milk substitutes according to this 
paragraph (m)(3).
* * * * *

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.

    2. In Sec.  220.8:
    a. Revise the section heading;
    b. Revise paragraph (d)(1);
    c. Redesignate paragraphs (d)(2) and (d)(3) as paragraphs (d)(3) 
and (d)(4), respectively, and add a new paragraph (d)(2); and
    d. Add a new paragraph (i)(3).
    The revisions and additions read as follows:


Sec.  220.8  Nutrition standards and menu planning approaches for 
breakfasts.

* * * * *
    (d) * * *
    (1) Exceptions for disability reasons. Schools must make 
substitutions in breakfasts for students who are considered to have a 
disability under 7 CFR part 15b of this title and whose disability 
restricts their diet. Substitutions must be made on a case by case 
basis only when supported by a written statement of the need for 
substitutions that includes the student's disability, an explanation of 
why the disability restricts the student's diet, the major life 
activity affected by the disability, the food(s) to be omitted from the 
student's diet, and the recommended alternative foods. Such statement 
must be signed by a licensed physician.
    (2) Exceptions for non-disability reasons. Schools may make 
substitutions for students without disabilities who cannot consume the 
breakfast because of medical or other special dietary needs. 
Substitutions must be made on a case by case basis only when supported 
by a written statement of the need for substitutions that identifies 
the medical or special dietary need that restricts the student's diet, 
the foods to be omitted from the student's diet and, except for milk, 
recommended alternative foods. Such statement must be signed by a 
recognized medical authority.
    (i) Milk substitutions for non-disability reasons. Schools may make 
substitutions for fluid milk for non-disabled students who cannot 
consume fluid milk due to medical or special dietary needs. A school 
that selects this option may offer the nondairy beverage(s) of its 
choice, provided the beverage(s) meet the nutritional standards 
established in Part 210 of this chapter. Expenses incurred in providing 
substitutions for fluid milk that exceed program reimbursements must be 
paid by the school food authority.
    (ii) Requisites for milk substitutions.
    (A) A school food authority must inform the State agency if any of 
its schools choose to offer fluid milk substitutes other than for 
students with disabilities; and
    (B) A medical authority or the student's parent or legal guardian 
must submit a written request for a fluid milk substitute identifying 
the medical or other special dietary need that restricts the student's 
diet.
    (iii) Substitution approval. The approval for fluid milk 
substitution shall remain in effect until the medical authority or the 
student's parent or legal guardian revokes such request in writing, or 
until such time as the school changes its substitution policy for non-
disabled students.
* * * * *
    (i) * * *
    (3) Milk substitutes. If a school chooses to offer one or more 
substitutes for fluid milk for non-disabled students with medical or 
special dietary needs, all substitute beverages offered must be 
fortified to meet 276 milligrams calcium per cup, 8 grams protein per 
cup, 500 International Units vitamin A per cup, 100 International Units 
vitamin D per cup, 24 milligrams magnesium per cup, 222 milligrams 
phosphorus per cup, 349 milligrams potassium per cup, 0.44 milligrams 
riboflavin per cup, and 1.1 micrograms vitamin B12 per cup, in 
accordance with fortification guidelines issued by the Food and Drug 
Administration. A school need only offer the nondairy beverages that it 
has selected as allowable milk substitutes according to this paragraph 
(i)(3).
* * * * *

    Dated: November 1, 2006.
Nancy Montanez Johner,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 06-9136 Filed 11-8-06; 8:45 am]
BILLING CODE 3410-30-P


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