[Federal Register Volume 73, Number 178 (Friday, September 12, 2008)]
[Rules and Regulations]
[Pages 52903-52908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21293]



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Rules and Regulations
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Federal Register / Vol. 73, No. 178 / Friday, September 12, 2008 / 
Rules and Regulations

[[Page 52903]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210 and 220

[FNS-2007-0032]
RIN 0584-AD58


Fluid Milk Substitutions in the School Nutrition Programs

AGENCY: Food and Nutrition Service (FNS), USDA.

ACTION: Final rule.

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

SUMMARY: This final rule implements a legislative provision on milk 
substitutes that is consistent with current regulations on menu 
exceptions for students with disabilities and adds requirements for the 
optional substitution of nondairy beverage for fluid milk for children 
with medical or special dietary needs in the National School Lunch 
Program and the School Breakfast Program. Specifically, this final rule 
establishes nutrient standards for nondairy beverage alternatives to 
fluid milk, allows schools to accept a written substitution request 
from a parent or legal guardian, grants schools discretion to select 
the acceptable nondairy beverages, and continues to make school food 
authorities responsible for substitution expenses that exceed the 
Federal reimbursement. This rule ensures consistency of standards among 
milk substitutes offered in the school lunch and breakfast programs, 
and assures that students who consume nondairy beverage alternates 
receive important nutrients found in fluid milk.

DATES: Effective Date: October 14, 2008.

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) substitution regulations at 7 
CFR 210.10(g) on meal variations require school food authorities (SFAs) 
to make food substitutions for children whose disabilities restrict 
their diet and give school food authorities discretion to make food 
substitutions for students with medical or other special dietary needs 
which do not constitute disabilities. Current regulations at 7 CFR 
210.10(g) require that substitution requests 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 regulations in the NSLP 
also apply to the School Breakfast Program (SBP) as a result of the 
requirements in 7 CFR 220.8(d) on meal variations.
    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 provisions consistent with the above substitution 
regulations and to add requirements for the optional substitution of 
fluid milk for students with medical or other special dietary needs. 
Public Law 108-265 amended section 9(a)(2)(B)(i) to require that fluid 
milk substitutes be fortified with calcium, protein, vitamin A, and 
vitamin D to levels found in fluid milk, and authorized the Secretary 
to specify additional nutrients. As amended, section 9(a)(2)(B)(ii) 
allows SFAs to accept a written statement from a parent or legal 
guardian identifying the student's medical or special dietary needs, in 
lieu of a written statement from a recognized medical authority. The 
provision also allows SFAs to select the acceptable substitutes that 
meet the nutritional standards established by the Secretary. 
Furthermore, Public Law 108-265 requires that SFAs notify the State 
agency of the decision to offer fluid milk substitutes other than for 
students with a disability, and requires SFAs to pay for substitution 
expenses that exceed Federal reimbursements.
    The Food and Nutrition Service (FNS) published a proposed rule on 
November 9, 2006 (71 FR 65753) seeking to establish nutrient standards 
for the milk substitutes and the other requirements established by 
Public Law 108-265, as indicated above. The proposed rule was intended 
to accommodate individual students age two and older who are unable to 
consume cow's milk due to a medical or other special dietary need, but 
who do not have a disability as defined in 7 CFR 15b.3. Specifically, 
schools are required to provide milk substitutes for children who have 
a disability which substantially limits one or more life activities, 
and would be affected by the consumption of dairy milk, such as 
diabetes. However, schools are also given the option of providing milk 
substitutes for children with milk allergies, religious or ethical 
beliefs or other needs that preclude the consumption of milk but do not 
constitute a medical disability.
    The proposed rule would have required that nondairy beverages be 
fortified with calcium, protein, vitamin A, and vitamin D, as 
stipulated by Public Law 108-265. Based on existing nutrition research, 
FNS proposed that nondairy beverages be fortified with riboflavin, 
vitamin B-12, magnesium, phosphorus and potassium, in addition to the 
nutrients stipulated by the Act. The proposed rule specified nutrient 
levels to ensure that a cup of a milk substitute is nutritionally 
equivalent to a cup of fluid cow's milk.

II. Discussion of Public Comments

    FNS received 107 comments on the proposal from associations 
(including dairy councils) (18), food companies (2), school districts 
(66), State and local agencies (16), and individuals (5). The comment 
period began November 9, 2006 and ended January 8, 2007. The response 
to various aspects of the proposal was mixed, as indicated in the 
following summary of public comments:
    <bullet> Nutrient Standards for Fluid Milk Substitutes
    FNS proposed that nondairy fluid milk substitutes be fortified with 
calcium, protein, vitamins A and D, riboflavin, vitamin B-12, 
magnesium, phosphorus, and potassium to the levels found in whole milk 
(3.25% milkfat). Whole milk was used as a benchmark for all nutrients 
(except vitamins A and D) because, based on the USDA Nutrient Database 
for Dietary Studies 1.0, it provides the lowest levels of several 
nutrients. The proposed levels for vitamins A and D reflect the milk 
fortification levels specified by the Food and Drug Administration.

[[Page 52904]]

    The dairy councils supported the proposed nutrient standards for 
fluid milk substitutes. However, some dairy councils were concerned 
that fortified nondairy beverages may not provide the same health 
benefits as fluid milk because added nutrients settle in the bottom of 
beverage containers. A student would need to shake the beverage 
container vigorously prior to consumption to ensure full delivery of 
nutrients. The dairy councils recommended that FNS encourage SFAs to 
offer lactose-free milk, in place of nondairy beverages, for lactose-
intolerant individuals, as recommended by the 2005 ``Dietary Guidelines 
for Americans.''
    Manufacturers of fortified milk substitutes are responsible for 
labeling their products with important consumer information. SFAs 
should ask the beverage manufacturer for special instructions and other 
product information, such as nutrient content, storage instructions, 
and expiration date.
    FNS wishes to emphasize that lactose-free milk is currently allowed 
as part of the reimbursable school meal pursuant to 7 CFR 210.10 and 
SFAs may offer it to children who have lactose intolerance without 
requiring documentation. There is no need to offer a fortified milk 
substitute to a student whose medical or special dietary need is 
lactose intolerance.
    Food companies and associations representing the soy industry 
commented that no product currently on the market meets the proposed 
nutrient standards. They were concerned that product reformulation may 
increase costs and discourage the use of soy beverages as fluid milk 
substitutes. To encourage product availability, the commenters 
suggested that the proposed protein standard be reduced to 6.25 g of 
protein per 8 ounce serving and that the proposed potassium standard be 
reduced to 250 mg per 8 ounce serving. This change would allow SFAs to 
use soy beverages currently on the market as acceptable fluid milk 
substitutes. A medical association noted that protein consumption among 
children is already high and recommended that the proposed protein 
standard be reduced to 5 g per serving.
    An association stated that nutritional standards for the nondairy 
milk substitutes should be based on critical nutrients such as calcium, 
vitamin A, and vitamin D. The commenter said that more recent data is 
needed to justify establishing requirements for protein, magnesium, 
potassium, phosphorus, riboflavin, and vitamin B-12.
    Public Law 108-265 required that milk substitutes be fortified with 
calcium, protein, vitamin A, and vitamin D to levels found in fluid 
milk. It also authorized the Secretary to specify other nutrients in 
addition to those required statutorily. Recognizing that fluid milk is 
the primary food source of riboflavin, vitamin B-12, magnesium, 
phosphorus, and potassium for children, FNS proposed to extend the 
nutrient requirements to also include these additional vitamins and 
minerals. Requiring magnesium and potassium also supports the 2005 
``Dietary Guidelines for Americans,'' which identifies these as 
nutrients of concern for children. Fortification with vitamin E, 
another nutrient of concern for children, was not proposed because 
fluid milk is not their primary food source of vitamin E. FNS 
anticipates that products that meet all of the proposed nutrient 
standards will become available in response to SFA demand.
    FNS recognizes that some SFAs may need assistance to select 
acceptable products. We expect that the State Agencies will provide 
technical assistance to program operators that choose to offer nondairy 
milk substitutes for students with medical or other special dietary 
needs.
    In light of the childhood overweight/obesity trend, a commenter 
stated that low-fat fluid milk should be used as the benchmark for the 
proposed nutrient standards, rather than whole milk (3.25% milkfat). It 
was also recommended that USDA set a maximum limit on the allowable 
energy-bearing nutrients, such as total fats and sugars, in the 
substitute beverages.
    The Department used whole milk as a benchmark for nutrient 
standards because it provides the lowest levels of the proposed 
nutrients in comparison with other types of milk. This is consistent 
with the NSLP requirement at 7 CFR 210.10(b)(1) that school meals 
provide at least minimum nutrient levels that meet one-third of the 
nutritional needs of students. This approach is intended to facilitate 
an SFA's compliance with the nutrient requirements.
    The Department refrained from limiting the fats and sugars in 
individual milk substitutes because this would be inconsistent with the 
current NLSP requirement in 7 CFR 210.10(a)(1)(i) to analyze the 
nutrients provided by the reimbursable meal (rather than individual 
food items) on average over the course of the week. In addition, 
regulatory action does not seem warranted because potential milk 
substitutes in the market (e.g., typical chocolate-flavored, soy-based 
beverage) already provide a level of energy, total fat, saturated fat, 
and total sugars that is below the levels contained in some of the 
types of milk currently allowed in the NSLP, such as chocolate-flavored 
whole milk. It also seems unreasonable to establish a regulatory 
maximum level for sugars in fluid milk substitutes when one does not 
exist for fluid milk. The Department recommends, but does not require, 
that schools use the profile of unflavored milk with respect to 
calories, fats, and sugars as the guide for evaluating fluid milk 
substitutes. We also recommend that schools do not offer nondairy 
beverages that exceed the fats and sugar levels found in chocolate-
flavored whole milk. The trans fats in milk substitutes should be 
minimal, as recommended by the 2005 ``Dietary Guidelines for 
Americans.''
    The lack of a mechanism to validate the actual nutrient content of 
a fluid milk substitute was also a concern for the dairy industry and 
school districts. Some commenters argued that school districts should 
not be expected to evaluate the nutritional value of milk substitutes, 
and recommended that FNS take on that responsibility and issue a list 
of products that meet the required nutrient levels. Another commenter 
recommended that the Department issue information on fluid milk 
substitutes whose nutritional content has been verified by independent 
laboratories.
    Public Law 108-265 does not reflect the intent for FNS to assume 
responsibility for evaluating the nutrient content of milk substitutes 
or endorse specific products. School food authorities are responsible 
for the overall food service operation, including evaluating and 
purchasing food products that are acceptable for the NSLP and SBP. SFAs 
may seek assistance from their State Agency to evaluate the nutrient 
content of fluid milk substitutes.
    <bullet> Written Statement from a Student's Parent or Legal 
Guardian
    In conformance with Public Law 108-265, FNS proposed to allow an 
SFA to accept a milk substitution request by written statement from a 
recognized medical authority or from the student's parent or legal 
guardian. As stated in the law, the substitution request by written 
statement must identify the student's medical or other special dietary 
need. FNS proposed that the written statement remain in effect until 
the parent or legal guardian revokes such statement or until the school 
discontinues the milk substitution option.
    School districts in general opposed allowing a parent or legal 
guardian's

[[Page 52905]]

statement in lieu of a statement from a recognized medical authority. 
They expressed concern that a parent or legal guardian's statement may 
not be fact-based and may simply reflect a student's preference. SFAs 
believe that the requests from parents could create a financial burden 
for the foodservice operation. They argue that only recognized medical 
authorities should be allowed to request fluid milk substitutions for 
children with medical or special dietary needs.
    Several associations and businesses were pleased that Congress 
simplified the process for requesting fluid milk substitutes for 
children with medical or special dietary needs. A commenter stated that 
the parent or legal guardian's written statement should include contact 
information for the physician who is treating the student's medical or 
special dietary need.
    Section 102 of Public Law 108-265 specifies that parents and legal 
guardians may request milk substitutions and did not require or expect 
SFAs to verify the medical or other special dietary need listed on the 
parent's statement. Consequently, FNS is not adopting the 
recommendation to require contact information.
    A commenter misunderstood the proposed regulatory language on meal 
variations and suggested revisions to allow a school to accept a parent 
or legal guardian's written statement. A correction is not necessary 
because the proposed regulatory text refers to meal variations, not to 
the fluid milk substitutions that may be requested by parents or legal 
guardians as allowed by Public Law 108-265.
    <bullet> State Agency Notification
    In accordance with Public Law 108-265, FNS proposed to require that 
an SFA notify the State Agency of a decision to offer fluid milk 
substitutes other than for children with a disability. Commenters did 
not see the value of such notification and stated that this information 
is already available through program reviews.
    FNS has no discretion in the implementation of this statutory 
requirement established in section 102 of Public Law 108-265. This 
notification can be accomplished through electronic mail or other easy 
method specified by the State Agency. This notification requirement 
does not involve reporting data to FNS.
    <bullet> Expenses Related to Fluid Milk Substitutions
    Public Law 108-265 requires that SFAs pay for substitution expenses 
that exceed the Federal reimbursement. School districts are concerned 
that this requirement may have a detrimental impact on school food 
service operations. A commenter expressed concern about the lack of a 
regulatory provision to pass the cost of providing fluid milk 
substitutes on to the student requesting the accommodation. Another 
commenter recommended that FNS stipulate that SFAs do not have to offer 
a substitute beverage if the cost of the product exceeds the cost of an 
8 ounce serving of fluid milk.
    Offering fluid milk substitutions for children with medical or 
other special dietary needs is discretionary and cost implications may 
be a valid reason for an SFA not to exercise this option. SFAs should 
assess their ability to absorb fluid milk substitution costs that 
exceed the Federal reimbursement. An SFA may not charge a higher price 
for an individual school meal to cover the cost of providing a fluid 
milk substitute.
    <bullet> Selection of Acceptable Fluid Milk Substitutes by Schools
    The proposed rule would have allowed SFAs discretion to select 
acceptable nondairy beverages, as required by Public Law 108-265. One 
commenter expressed concern that a parent or legal guardian may request 
a particular product brand and also that a student may decline the 
acceptable nondairy beverage(s) selected by an SFA.
    An SFA that chooses to offer fluid milk substitutes has discretion 
to offer a variety of brands or to offer a specific brand name. An SFA 
may want to confirm with the household requesting milk substitution 
that the student intends to consume daily the nondairy beverage 
selected by the SFA.
    <bullet> Clarification of the Term ``Other Special Dietary Needs''
    Several commenters requested clarification of the term ``other 
special dietary needs.'' Congress did not specify the conditions or 
situations that would merit fluid milk substitution. While the proposed 
rule was intended to provide accommodation in limited cases where 
medical or other special dietary needs preclude the consumption of 
cow's milk, such as a milk allergy or other physiological (but non-
disabling) need, we realize that implementation of the proposal will 
result in requests for fluid milk substitutions based on ethnic/
cultural, ethical, or religious reasons as well. If a school opts to 
offer fluid milk substitutes to non-disabled students under this 
provision, they will need to provide equal accommodations to students 
with a wide range of other dietary needs related to fluid milk 
substitution.
    Currently, NSLP schools have flexibility to offer a variety of 
foods to meet the medical or special dietary needs of students without 
disabilities. For example, the food-based meal patterns allow the use 
of many different meat/meat alternates such as cheese, dry beans, nuts, 
and alternate protein products. The nutrient-standard menu planning 
option allows even greater flexibility since specific foods are not 
required. Fluid milk is the only required food or menu item which SFAs 
have not been able to substitute without a supporting statement from a 
medical authority or a physician. This final rule simplifies the 
process of requesting fluid milk substitution for students without 
disabilities if the SFA opts to offer substitution to these students.
    FNS emphasizes that this final rule is not intended to accommodate 
students who do not drink cow's milk due to taste preferences. The 
school meal programs already offer fluid milk in a variety of fat 
content and flavors to satisfy the taste preferences of students.
    This final rule does not impact the meal variations for ethnic and 
religious reasons currently allowed in 7 CFR 210.10(g) and 7 CFR 
220.8(d) to benefit an entire institution, such as a faith-based 
school. However, this final rule amends these provisions to add the 
milk substitution requirements while ensuring the nutritional integrity 
of school meals.

III. Conclusion

    This final rule will amend 7 CFR 210.10(g) and 7 CFR 220.8(d) to 
reorganize the existing meal variation requirements according to 
disability and non-disability reasons, and to add a paragraph on fluid 
milk substitutions for non-disability reasons. The revisions and 
additions will:
    <bullet> Continue the current requirements on meal variations for 
students with disabilities and for students with medical or other 
special dietary needs;
    <bullet> Allow SFAs discretion to offer fluid milk substitutes to 
students with medical or other special dietary needs that do not rise 
to the level of a disability;
    <bullet> Require that nondairy beverages offered as fluid milk 
substitutes be nutritionally equivalent to fluid milk and provide 
specific levels of calcium, protein, vitamins A and D, magnesium, 
phosphorus, potassium, riboflavin, and vitamin B-12;
    <bullet> Allow SFAs to accept a written statement from a parent or 
guardian in lieu of a statement from a recognized medical authority. 
The supporting statement must identify the student's medical or other 
special dietary need that precludes cow's milk;
    <bullet> Allow SFAs discretion to select the acceptable substitutes 
that meet the

[[Page 52906]]

nutritional standards established by this rule;
    <bullet> Require SFAs to inform the State agency when a school 
chooses to offer fluid milk substitutes other than for students with a 
disability; and
    <bullet> Require SFAs to pay for substitution expenses that exceed 
Federal meal reimbursements.
    The regulatory text in this final rule differs slightly from the 
proposed rule. A few edits were made to enhance readability and clarity 
of the regulatory requirements. In 7 CFR 210.10(g) and 7 CFR 220.8(d), 
four sentences were edited to be consistent with current regulatory 
text. In addition, a table was added to list the required nutrients for 
fluid milk substitutes. The same nutrients were listed in a paragraph 
format in the proposed rule. A few sentences were reorganized to allow 
us to insert the new table.

IV. Procedural Matters

Executive Order 12866

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

Regulatory Impact Analysis

Need for Action
    This action is needed to establish nutrition standards and other 
requirements for the optional substitution of a nondairy beverage for 
fluid milk for students with medical or other special dietary needs in 
the National School Lunch Program (NSLP) and School Breakfast Program 
(SBP), as required by Public Law 108-265.
Benefits
    This rule ensures that the nondairy milk substitutes used in the 
school meal programs are nutritionally equivalent to fluid milk, and 
achieves consistency among the milk substitutes offered by schools. It 
also makes it easier for parents/legal guardians to request milk 
substitutions for students with medical or special dietary needs, while 
retaining a school's discretion to offer substitutes for students 
without disabilities and to select the acceptable products.
Costs
    The Regulatory Impact Analysis provides examples of an upper bound 
range of potential costs to the schools under varying assumptions. In 
order to give a range of potential costs, two variations of two 
different scenarios are analyzed, reflecting variations in participant 
behavior in response to the rule. These cost estimates all take into 
account projected average daily participation, inflation of soy 
beverage prices, the number of school days in a year, a school meal 
take rate, and a four year phase-in period. The first-year estimated 
costs for schools range from about $510,000 (an average of $5 per 
school) to just under $2 million (an average of $19 per school); the 
five-year costs range from almost $8 million (an average of $79 per 
school) to almost $31 million (an average of $303 per school). The 
range of costs represents a departure from the point estimate provided 
for the proposed rule. These new estimates provide more information and 
use a more conservative approach in estimating the costs.
    The cost scenarios are more likely to overstate (rather than 
understate) potential costs for two reasons. First, the assumptions 
made about participant behavior in response to this rule are meant to 
portray relatively high potential additional costs to schools. Second, 
the estimates assume that all schools choose to offer a fluid milk 
substitute. In reality, little cost is anticipated because offering 
milk substitutes for children without disabilities is completely 
optional for schools.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601-612). Nancy Montanez Johner, 
Under Secretary for Food, Nutrition, and Consumer Services, has 
certified that this rule will not have a significant economic impact on 
a substantial number of small entities. Schools have discretion to 
offer milk substitutes for students without disabilities and only a 
small number of schools are expected to initially offer this option 
once a suitable product becomes available. As more products are 
developed and more communities become aware of these products we expect 
that more schools will adopt this option.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
Department generally must prepare a written statement, including a 
cost/benefit analysis, for proposed and final rules with Federal 
mandates that may result in expenditures to State, local, or tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is needed for a rule, 
section 205 of the UMRA generally requires the Department to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, more cost-effective or least burdensome alternative 
that achieves the objectives of the rule.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) that impose costs on State, local, 
or tribal governments or to the private sector of $100 million or more 
in any one year. This rule is, therefore, not subject to the 
requirements of sections 202 and 205 of the UMRA.

Executive Order 12372

    The 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, FNS headquarters staff and regional offices have ongoing 
formal and informal discussions with State and local officials 
regarding program implementation and policy issues. This arrangement 
allows State and local agencies to provide feedback that 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 rule is intended to have

[[Page 52907]]

preemptive effect with respect to any State or local laws, regulations, 
or policies which conflict with its provisions or which would otherwise 
impede its full implementation. This rule is not intended to have 
retroactive effect. Prior to any judicial challenge to the provisions 
of this rule or the application of its provisions, all applicable 
administrative procedures under Sec.  210.18(q) or Sec.  235.11(f) must 
be exhausted.

Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with the Department 
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify any 
major civil rights impacts the rule might have on children on the basis 
of age, race, color, national origin, sex or disability. After a 
careful review of the rule's intent and provisions, FNS has determined 
that it does not affect the participation of protected individuals in 
the NSLP and SBP.

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 final 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.

0
Accordingly, the Food and Nutrition Service amends 7 CFR Parts 210 and 
220 as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

0
1. The authority citation for 7 CFR part 210 continues to read as 
follows:

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

0
2. In Sec.  210.10:
0
a. Revise the heading for paragraph (g);
0
b. Revise paragraph (g)(1);
0
c. Redesignate paragraphs (g)(2) and (g)(3) as paragraphs (g)(3) and 
(g)(4), respectively, and add a new paragraph (g)(2); and

0
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) Exceptions and variations allowed in reimbursable meals--(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 15b.3 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 recommended alternate foods, unless otherwise exempted by FNS. 
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 includes recommended alternate foods, unless otherwise exempted by 
FNS. Except with respect to substitutions for fluid milk, such a 
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) meets the nutritional standards 
established under paragraph (m) of this section. Expenses incurred when 
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 must 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, the nondairy beverage(s) must provide the 
nutrients listed in the following table. Milk substitutes must be 
fortified 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 fluid milk substitutes 
according to this paragraph (m)(3).

------------------------------------------------------------------------
                 Nutrient                             Per cup
------------------------------------------------------------------------
Calcium..................................  276 mg.
Protein..................................  8 g.
Vitamin A................................  500 IU.
Vitamin D................................  100 IU.
Magnesium................................  24 mg.
Phosphorus...............................  222 mg.
Potassium................................  349 mg.
Riboflavin...............................  0.44 mg.
Vitamin B-12.............................  1.1 mcg.
------------------------------------------------------------------------

* * * * *

PART 220--SCHOOL BREAKFAST PROGRAM

0
1. The authority citation for 7 CFR part 220 continues to read as 
follows:

    Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.


0
2. In Sec.  220.8:
0
a. Revise the section heading;
0
b. Revise the heading for paragraph (d);
0
c. Revise paragraph (d)(1);

[[Page 52908]]

0
d. Redesignate paragraphs (d)(2) and (d)(3) as paragraphs (d)(3) and 
(d)(4), respectively, and add a new paragraph (d)(2); and
0
e. 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) Exceptions and variations allowed in reimbursable breakfasts--
(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.3 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 
recommended alternate foods, unless otherwise exempted by FNS. 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 includes 
recommended alternate foods, unless otherwise exempted by FNS. Except 
with respect to substitutions for fluid milk, 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 paragraph (i)(3) 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. (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 must 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, the nondairy beverage(s) must provide the 
nutrients listed in the following table. Milk substitutes must be 
fortified 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 fluid milk substitutes 
according to this paragraph (i)(3).

------------------------------------------------------------------------
                 Nutrient                             Per cup
------------------------------------------------------------------------
Calcium..................................  276 mg.
Protein..................................  8 g.
Vitamin A................................  500 IU.
Vitamin D................................  100 IU.
Magnesium................................  24 mg.
Phosphorus...............................  222 mg.
Potassium................................  349 mg.
Riboflavin...............................  0.44 mg.
Vitamin B-12.............................  1.1 mcg.
------------------------------------------------------------------------

* * * * *

    Dated: September 3, 2008.
Nancy Montanez Johner,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. E8-21293 Filed 9-11-08; 8:45 am]
BILLING CODE 3410-30-P