This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

52903 

Vol. 73, No. 178 

Friday, September 12, 2008 

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: 

• 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. 


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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 lactoseintolerant 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 lactosefree 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 chocolateflavored 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. 

• 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 


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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 factbased 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. 

• 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. 

• 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. 

• 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. 

• 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 faithbased 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: 

• Continue the current requirements 

on meal variations for students with 

disabilities and for students with 

medical or other special dietary needs; 

• 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; 

• 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; 

• 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; 

• Allow SFAs discretion to select the 

acceptable substitutes that meet the 


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nutritional standards established by this 

rule; 

• Require SFAs to inform the State 

agency when a school chooses to offer 

fluid milk substitutes other than for 

students with a disability; and 

• 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 Stateadministered, 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 


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preemptive effect with respect to any 

State or local laws, regulations, or 

policies which conflict with its 

provisions or which would otherwise 

impede its full implementation. This 

rule is not intended to have retroactive 

effect. Prior to any judicial challenge to 

the provisions of this rule or the 

application of its provisions, all 

applicable administrative procedures 

under § 210.18(q) or § 235.11(f) must be 

exhausted. 

Civil Rights Impact Analysis 

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 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, the Food and Nutrition 

Service amends 7 CFR Parts 210 and 

220 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 heading for paragraph 

(g); 

■ 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) 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 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) 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 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, 

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 

■ 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 the heading for paragraph 

(d); 

■ c. Revise paragraph (d)(1); 


ebenthall on PROD1PC60 with RULES
52908 Federal Register / Vol. 73, No. 178 / Friday, September 12, 2008 / Rules and Regulations 

1For purposes of Regulation CC, the term ‘‘bank’’ 

refers to any depository institution, including 

commercial banks, savings institutions, and credit 

unions. 

■ d. Redesignate paragraphs (d)(2) and 

(d)(3) as paragraphs (d)(3) and (d)(4), 

respectively, and add a new paragraph 

(d)(2); and 

■ e. Add a new paragraph (i)(3). 

The revisions and additions read as 

follows: 

§ 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 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 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 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, 

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 

FEDERAL RESERVE SYSTEM 

12 CFR Part 229 

[Regulation CC; Docket No. R–1326] 

Availability of Funds and Collection of 

Checks 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule; technical 

amendment. 

SUMMARY: The Board of Governors 

(Board) is amending appendix A of 

Regulation CC to delete the reference to 

the Jacksonville branch office of the 

Federal Reserve Bank of Atlanta and to 

reassign the Federal Reserve routing 

symbols currently listed under that 

office to the head office of the Federal 

Reserve Bank of Atlanta. These 

amendments reflect the restructuring of 

check-processing operations within the 

Federal Reserve System. 

DATES: The final rule will become 

effective on November 15, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey S. H. Yeganeh, Financial Services 

Manager (202–728–5801), or Joseph P. 

Baressi, Financial Services Project 

Leader (202–452–3959), Division of 

Reserve Bank Operations and Payment 

Systems; or Sophia H. Allison, Senior 

Counsel (202–452–3565), Legal 

Division. For users of 

Telecommunications Devices for the 

Deaf (TDD) only, contact 202–263–4869. 

SUPPLEMENTARY INFORMATION: Regulation 

CC establishes the maximum period a 

depositary bank may wait between 

receiving a deposit and making the 

deposited funds available for 

withdrawal.1 A depositary bank 

generally must provide faster 

availability for funds deposited by a 

‘‘local check’’ than by a ‘‘nonlocal 

check.’’ A check is considered local if it 

is payable by or at or through a bank 

located in the same Federal Reserve 

check-processing region as the 

depositary bank. 

Appendix A to Regulation CC 

contains a routing number guide that 

assists banks in identifying local and 

nonlocal banks and thereby determining 

the maximum permissible hold periods 

for most deposited checks. The 

appendix includes a list of each Federal 

Reserve check-processing office and the 

first four digits of the routing number, 

known as the Federal Reserve routing 

symbol, of each bank that is served by 

that office for check-processing 

purposes. Banks whose Federal Reserve 

routing symbols are grouped under the 

same office are in the same checkprocessing region and thus are local to 

one another. 

On November 15, 2008, the Reserve 

Banks will transfer the check-processing 

operations of the Jacksonville branch 

office of the Federal Reserve Bank of 

Atlanta to the head office of the Federal 

Reserve Bank of Atlanta. As a result of 

this change, some checks that are drawn 

on and deposited at banks located in the 

Jacksonville and Atlanta checkprocessing regions and that currently 

are nonlocal checks will become local 

checks subject to faster availability 

schedules. To assist banks in identifying 

local and nonlocal checks and making 

funds availability decisions, the Board 

is amending the list of routing symbols 

in appendix A associated with the 

Federal Reserve Bank of Atlanta to 


ebenthall on PROD1PC60 with RULES