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.

Proposed Rules Federal Register

65753 

Vol. 71, No. 217 

Thursday, November 9, 2006 

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 nondisabled 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: 

• E-Mail: Send comments to 

CNDPROPOSAL@FNS.USDA.GOV. The 

subject line must include the words 

‘‘Fluid Milk Substitutions’’. 

• Fax: Submit comments by facsimile 

transmission to: (703) 305–2879, 

attention Robert Eadie. 

• 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. 

• 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. 

• 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: 

• 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; 

• 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; 

• Grants schools discretion to select 

acceptable substitutes that meet the 

nutritional standards established by the 

Secretary; 

• Requires schools to inform the State 

agency if they choose to offer substitutes 

for fluid milk other than for students 

with a disability; and 

• 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 nonsubstantive 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 nonsubstantive 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 


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1USDA Food and Nutrient Database for Dietary 

Studies 1.0. 2004. Beltsville, MD: Agricultural 

Research Service, Food Surveys Research Group. 

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 nondisabled 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 

Nutrient Rank Percent of 

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 

SUMMARY OF MILK CONTRIBUTIONS TO

TOTAL NUTRIENT INTAKES AMONG

U.S. CHILDREN, 2–18 YEARS OF

AGE, 1994–96, 1998—Continued 

Nutrient Rank Percent of 

total 

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. 

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)). 

Nutrient Per cup RDI Percentage 

Calcium .................................................................................................................................................. 276 mg .... 1000 mg .. 27 .6 


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Nutrient Per cup RDI Percentage 

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 

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 chocolateflavored 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, whole ............... 208 kcals per cup ...... 8.48 g per cup ........... 5.260 g per cup ......... 23.85 g per cup. 

Milk, soy, ready-to-drink, not-baby’s, chocolate.118 kcals per cup ...... 4.58 g per cup ........... 0.514 g per cup ......... 10.8 g per cup. 

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 


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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 nondisabled 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 nondairy 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. 


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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 Stateadministered, 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 EGovernment 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 § 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: 

§ 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 nondisability reasons. Schools may make 

substitutions for fluid milk for nondisabled 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. 


rmajette on PROD1PC67 with PROPOSALS1
65758 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Proposed Rules 

(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 nondisabled 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 § 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: 

§ 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 nondisability reasons. Schools may make 

substitutions for fluid milk for nondisabled 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 nondisabled 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 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 93, 94, and 95 

[Docket No. APHIS–2006–0026] 

Bovine Spongiform Encephalopathy; 

Minimal-Risk Regions, Identification of 

Ruminants and Processing and 

Importation of Commodities 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We are reopening the 

comment period for our proposed rule 

that would remove several restrictions 

regarding the identification of animals 

and the processing of ruminant 

materials from BSE minimal-risk 

regions, as well as BSE-based 

restrictions on gelatin derived from 

bovine hides. This action will allow 

interested persons additional time to 

prepare and submit comments. 

DATES: We will consider all comments 

that we receive on or before November 

24, 2006. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov, select 

‘‘Animal and Plant Health Inspection 

Service’’ from the agency drop-down 

menu, then click ‘‘Submit.’’ In the 

Docket ID column, select APHIS–2006–

0026 to submit or view public 


rmajette on PROD1PC67 with PROPOSALS1