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contains regulatory documents having general

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Rules and Regulations Federal Register

70031 

Vol. 70, No. 223 

Monday, November 21, 2005 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 210 

RIN 0584–AD57 

Marketing and Sale of Fluid Milk in 

Schools 

AGENCY: Food and Nutrition Service, 

USDA. 

ACTION: Interim rule. 

SUMMARY: This interim rule implements 

legislative provisions 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 is intended to 

ensure that there are no policies or 

procedures in place that have the effect 

of restricting the sale or marketing of 

fluid milk. In addition, we are making 

a nonsubstantive change by converting 

a section heading from a question to a 

statement. This is intended to conform 

the heading to the same style as all other 

section headings in the part. 

DATES: Effective Date: This rule is 

effective December 21, 2005. 

Comment Date: Comments on this 

rule must be postmarked on or before 

May 22, 2006 to be assured of 

consideration. Comments will also be 

accepted via E-mail submission, at the 

address listed below. E-mail 

submissions must be received no later 

than 11:59 p.m. on May 22, 2006 to be 

assured of consideration. 

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 contain the phrase 

‘‘Marketing and Sale of Fluid Milk in 

Schools’’. 

• Fax: Submit comments by facsimile 

transmission to: (703) 305–2879, 

attention Mr. Robert Eadie. Since 

comments are being accepted 

simultaneously on several separate 

rulemakings, please label your 

comments on this interim rule as, 

‘‘Marketing and Sale of Fluid Milk in 

Schools’’. 

• Mail: Comments should be 

addressed to Mr. Robert Eadie, 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. 

• Hand Delivery or Courier: Deliver 

comments to 3101 Park Center Drive, 

Room 640, 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 and follow 

the online instructions for submitting 

comments. 

All submissions will be available for 

public inspection at 3101 Park Center 

Drive, Room 640, Alexandria, Virginia 

22302–1594, Monday through Friday, 

8:30 a.m.–5 p.m. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Christopher Davenport, School 

Programs Section, Policy and Program 

Development Branch, Child Nutrition 

Division, Food and Nutrition Service at 

703–305–2590. 

SUPPLEMENTARY INFORMATION: 

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 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 school-sponsored events. 

This rulemaking uses the term ‘‘fluid 

milk’’, as described in 7 CFR 

210.10(m)(1)(ii), instead of the term 

‘‘fluid milk products’’ as used in Public 

Law 108–265. Although the Agricultural 

Marketing Service (AMS) of USDA has 

established a Federal definition for 

‘‘fluid milk products’’ found at 7 CFR 

1000.15; the Department prefers instead 

to continue to rely upon the each 

individual State’s definition of fluid 

milk. Use of the AMS definition would 

have required identifying a list of 

allowable and unallowable milk-derived 

items that would be extensive, 

frequently changing and perhaps 

impossible to define. 

This provision may affect vending 

contracts, in that the intent of Public 

Law 108–265 is to ensure that exclusive 

vending contracts do not have the effect 

of preventing the sale or marketing of 

milk on school premises. The statute 

has the effect of prohibiting local 

educational agencies (LEAs) from 

entering into contracts that restrict the 

sale or marketing of fluid milk. The 

requirements for offering fluid milk as a 

part of a reimbursable lunch in the 

NSLP are described in 7 CFR 210.10(m) 

and are not changed by this interim 

rule. 

A 2000 study sponsored by the 

Centers for Disease Control and 

Prevention, the School Health Policies 

and Programs Study, indicates that 54.6 

percent of the school districts reported 

having a contract with a beverage 

company. In some instances, such 

vending contracts may limit a school’s 

ability to offer other types of food 

choices outside of the school meal 

programs, including fluid milk. 

However, based on discussions with 

State agencies, we understand that very 

few if any current vending contracts 

actually limit the sale or marketing of 

fluid milk. 

Per Public Law 108–265, the effective 

date of this provision was July 1, 2005. 

Therefore, there may be LEAs with 

existing contracts in place that contain 

provisions which conflict with the 

statutory provision and this rulemaking. 

To come into compliance with these 

requirements, these LEAs may either 

conduct a new procurement or amend 

these existing contracts to conform with 

the statute. LEAs should consult with 

their legal counsel to determine the 

appropriate course of action. In either 

case, the action should be taken at the 

earliest possible date, but no later than 

the renewal of the current procurement 

contract, or the beginning of School 

Year 2006–2007, whichever comes first. 

All subsequent contracts must reflect 

the statutory and regulatory 

requirements. 

70032 Federal Register / Vol. 70, No. 223 / Monday, November 21, 2005 / Rules and Regulations 

This provision does not require that 

participating schools sell or market fluid 

milk outside of the NSLP, or make fluid 

milk available at school sponsored 

events. For example, schools that have 

a policy of no a la carte sales are not 

required to change such policies. 

Instead, this provision is intended to 

ensure that there are no policies or 

procedures in place that have the effect 

of specifically restricting the sale or 

marketing of fluid milk. 

Finally, we are converting the form of 

the Section heading of 7 CFR 210.10 

from a question to a statement. This 

nonsubstantive change to the heading 

will not change the basic meaning of the 

heading, nor affect the meaning of any 

of the subsections. The only effect will 

be to conform this heading to the form 

used for all of the other headings in part 

210. 

Why Is This Rule Being Issued as an 

Interim Rule and Not a Proposed Rule? 

Section 502(b)(4) of Public Law 108–

265 makes the provisions of section 102 

of the law addressed in this rulemaking 

effective July 1, 2005. Section 501(b) of 

Public Law 108–265 states that the 

Secretary may promulgate interim 

regulations to implement those 

provisions. The Secretary has deemed 

the requirements of this provision 

sufficient to warrant just such an 

interim regulation, without regard to the 

Administrative Procedure Act’s notice 

and prior comment provisions at 5 

U.S.C 553; the Statement of Policy of the 

Secretary of Agriculture effective July 

24, 1971 (36 FR 13804) relating to 

notices of proposed rulemaking and 

public participation in rulemaking; and 

the Paperwork Reduction Act at 44 

U.S.C. chapter 35. For these reasons, we 

are not taking public comment prior to 

promulgation of this interim rule. 

To benefit from the experiences of 

program operators, the Food and 

Nutrition Service (FNS) decided to issue 

this rule as an interim, rather than a 

final rule, in order to facilitate public 

comment. FNS intends to issue a final 

rule after consideration of the comments 

received on this rule. 

What Specific Changes Does This Rule 

Make? 

This interim rule adds a paragraph to 

7 CFR 210.10(m) and 7 CFR 210.21(e), 

stating that schools and LEA’s are 

prohibited from directly or indirectly 

restricting the sale or marketing of fluid 

milk, as defined in 7 CFR 

210.10(m)(1)(ii), on school premises or 

at school-sponsored events at any time 

or in any place. This interim rule also 

makes a nonsubstantive change to the 

heading of 7 CFR Part 210.10, 

conforming it to other section headings 

in the Part by converting it from a 

question to a statement. 

Executive Order 12866 

This interim rule has been determined 

to be non-significant and is not subject 

to review by the Office of Management 

and Budget under Executive Order 

12866. 

Public Law 104–4 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes a requirement 

for Federal agencies to assess the effects 

of their regulatory actions on State, 

local, and tribal governments and the 

private sector. Under section 202 of the 

UMRA, FNS generally prepares a 

written statement, including a costbenefit analysis. This is done for 

proposed and interim rules that have 

‘‘Federal mandates’’ which may result 

in expenditures of $100 million or more 

in any one year by State, local, or tribal 

governments, in the aggregate, or by the 

private sector. When this statement is 

needed for a rule, section 205 of the 

UMRA generally requires FNS to 

identify and consider a reasonable 

number of regulatory alternatives. It 

must then adopt the least costly, most 

cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. 

This interim rule contains no Federal 

mandates of $100 million or more in 

any one year (under regulatory 

provisions of Title II of the UMRA) for 

State, local, and tribal governments or 

the private sector. Thus, this interim 

rule is not subject to the requirements 

of sections 202 and 205 of the UMRA. 

Regulatory Flexibility Act 

This interim rule has been reviewed 

with regard to the requirements of the 

Regulatory Flexibility Act (5 U.S.C. 

601–612). Roberto Salazar, 

Administrator of the Food and Nutrition 

Service, has certified that this rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The number of LEAs that will 

be impacted by policy or contract 

changes as a result of this rule is 

expected to be minor. 

Executive Order 12372 

The National School Lunch Program 

is listed in the Catalog of Federal 

Domestic Assistance under No. 10.555. 

This program is included in the scope 

of Executive Order 12372, which 

requires intergovernmental consultation 

with State and local officials (7 CFR part 

3015, subpart V, and final rule related 

notice at 48 FR 29115, June 24, 1983). 

Shortly after the passage of Public Law 

108–265, FNS held discussions with 

State education agencies that administer 

child nutrition programs and with 

organizations representing State and 

local public health agencies. These 

discussions provided FNS an 

opportunity to inform State and local 

officials about the new requirements 

regarding the marketing and sale of fluid 

milk and to hear their concerns. 

However, the pre-emptive status of the 

law and the requirement to implement 

the provision by July 1, 2005, has 

precluded any need of, or opportunity 

for, formal consultation. The interim 

nature of this rule will, however, allow 

for the final rule to reflect changes based 

on local experience, provided they are 

consistent with the law. 

Federalism Summary Impact Statement 

Executive Order 13132 requires 

Federal agencies to consider the impact 

of their regulatory actions on State and 

local governments. Where such actions 

have federalism implications, agencies 

are directed to provide a statement for 

inclusion in the preamble to the 

regulations describing the agency’s 

considerations in terms of the three 

categories called for under section 

(6)(b)(2)(B) of Executive Order 13132. 

FNS has considered the impact of this 

rule on State and local governments and 

has determined that this rule does not 

have Federalism implications. This rule 

does not impose substantial or direct 

compliance costs on State and local 

governments. Therefore, under section 

6(b) of the Executive Order, a federalism 

summary impact statement is not 

required. 

Executive Order 12988 

This interim rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is intended to have 

preemptive effect with respect to any 

State or local laws, regulations or 

policies which conflict with its 

provisions or which would impede its 

full implementation. This rule is not 

intended to have retroactive effect 

unless that is specified in the Effective 

Date section of the preamble of the 

interim rule. Before any judicial 

challenge to the provisions of this rule 

or the application of its provisions, all 

applicable administrative procedures 

must be exhausted. 

Civil Rights Impact Analysis 

Under USDA Regulation 4300–4, Civil 

Rights Impact Analysis, FNS has 

reviewed this interim rule to identify 

and address any major civil rights 

impacts the rule might have on 

minorities, women, and persons with 

Federal Register / Vol. 70, No. 223 / Monday, November 21, 2005 / Rules and Regulations 70033 

disabilities. After a careful review of the 

rule’s intent and provisions, FNS has 

determined that this rule will not in any 

way limit or reduce participants’ ability 

to participate in the Child Nutrition 

Programs on the basis of an individual’s 

or group’s race, color, national origin, 

sex, age, or disability (The Child 

Nutrition Programs’ nondiscrimination 

policy can be found at 7 CFR 

210.23(b).). 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 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. 

Government Paperwork Elimination 

Act 

FNS is committed to compliance with 

the Government Paperwork Elimination 

Act (GPEA), which requires Government 

agencies to provide the public the 

option of submitting information or 

transacting business electronically to 

the maximum extent possible. 

Public Participation 

FNS has determined, in accordance 

with 5 U.S.C. 553(b), that Notice of 

Proposed Rulemaking and opportunity 

for public comments is unnecessary and 

contrary to the public interest and, in 

accordance with 5 U.S.C. 553(d), finds 

that good cause exists for making this 

action effective without prior public 

comment. In section 501(b) of Public 

Law 108–265, Congress specifically 

afforded the Secretary the option of 

implementing this rulemaking without 

prior notice and comment. In addition, 

the provisions of this interim rule reflect 

mandatory statutory requirements 

which are non-discretionary. The 

Department, however, wishes to receive 

comments that might improve the 

administration of these mandatory 

requirements. 

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. 

■ Accordingly, 7 CFR Part 210 is 

amended as follows: 

PART 210—NATIONAL SCHOOL 

LUNCH PROGRAM 

■ 1. The authority citation for 7 CFR 

part 210 continues to read as follows: 

Authority: 42 U.S.C. 1751–1760, 1779. 

■ 2. In § 210.10 the section heading is 

revised and a new paragraph (m)(3) is 

added to read as follows: 

§ 210.10 Nutrition standards and menu 

planning approaches for lunches and 

requirements for afterschool snacks. 

* * * * * 

(m) * * * 

(3) Restrictions on the sale of milk. A 

school participating in the Program, or 

a person approved by a school 

participating in the Program, must not 

directly or indirectly restrict the sale or 

marketing of fluid milk (as described in 

paragraph(m)(1)(ii) of this section) at 

any time or in any place on school 

premises or at any school-sponsored 

event. 

* * * * * 

■ 3. In § 210.21, add a new paragraph (e) 

to read as follows: 

§ 210.21 Procurement. 

* * * * * 

(e) Restrictions on the sale of milk. A 

school food authority participating in 

the Program, or a person approved by a 

school participating in the Program, 

must not directly or indirectly restrict 

the sale or marketing of fluid milk (as 

described in paragraph(m)(1)(ii) of this 

section) at any time or in any place on 

school premises or at any schoolsponsored event. 

Dated: November 10, 2005. 

Roberto Salazar, 

Administrator, Food and Nutrition Service. 

[FR Doc. 05–22952 Filed 11–18–05; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Part 327 

[Docket No. 02–019F] 

RIN 0583–AD16 

Addition of Chile to the List of 

Countries Eligible To Export Meat and 

Meat Products to the United States 

AGENCY: Food Safety and Inspection 

Service, USDA. 

ACTION: Final rule. 

SUMMARY: The Food Safety and 

Inspection Service (FSIS) is adding 

Chile to the list of countries eligible to 

export meat and meat products to the 

United States. FSIS conducted a 

thorough review of Chile’s meat 

slaughter and processing inspection 

system, including an on-site review of 

its meat inspection system in operation. 

FSIS concluded that Chile’s meat 

inspection laws, regulations, and other 

written materials demonstrate that they 

establish requirements that are 

equivalent to the relevant requirements 

of the Federal Meat Inspection Act 

(FMIA) and its implementing 

regulations, and that Chile’s 

implementation of meat inspection 

standards and procedures is equivalent 

to that of the United States. 

Meat and meat products slaughtered 

and processed in certified Chilean 

establishments may be exported to the 

United States. All such products will be 

subject to re-inspection by FSIS 

inspectors at U.S. ports-of-entry as 

required by law. 

DATES: Effective Date: December 21, 

2005. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sally White, Director, International 

Equivalence Staff, Office of 

International Affairs; (202) 720–6400. 

SUPPLEMENTARY INFORMATION: 

Background 

On May 10, 2005, FSIS published a 

proposal in the Federal Register (70 FR 

24485–24488) to add Chile to the list of 

countries eligible to export meat and 

meat products to the United States (9 

CFR 327(b)). As discussed in that 

proposed rulemaking, the government of 

Chile requested approval to export meat 

and meat products to the United States. 

In response to this request, FSIS 

conducted a thorough review of Chile’s 

meat slaughter and processing 

inspection system to determine whether 

it is equivalent to the U.S. meat 

inspection system. FSIS concluded that 

the requirements contained in Chile’s 

meat inspection laws and regulations 

are equivalent to those mandated by the 

FMIA and implementing regulations. 

FSIS then conducted an on-site review 

of Chile’s meat inspection system in 

operation. The FSIS review team 

concluded that Chile’s implementation 

of meat inspection standards and 

procedures is equivalent to that of the 

United States. 

The government of Chile will certify 

to FSIS establishments wishing to 

export products to the United States. 

FSIS will retain the right to verify that 

establishments certified by the Chilean 

government are meeting requirements