[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Rules and Regulations]
[Pages 38889-38890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18690]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 210
[FNS-2005-0009]
RIN 0584-AD83
Marketing and Sale of Fluid Milk in Schools
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final Rule.
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SUMMARY: This rule finalizes the interim rule that implemented the
statutory provision 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 ensures that there are
no policies or procedures in place that have the effect of restricting
the sale or marketing of fluid milk.
DATES: Effective Date: This action is effective September 4, 2009.
FOR FURTHER INFORMATION CONTACT: Melissa Rothstein, 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; or (703) 305-2590; or
[email protected].
SUPPLEMENTARY INFORMATION:
I. 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, 42 U.S.C. 1758, 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. The Food and Nutrition Service
(FNS) published an interim rule on November 21, 2005 (70 FR 70031) to
prohibit school food authorities (SFAs) from entering into contracts
that restrict the sale or marketing of fluid milk.
Contracts between SFAs and vendors can be structured to restrict
the variety or types of food choices a school may offer outside of the
school meal programs. Prior to implementation of the interim rule, some
exclusive vending contracts were found to have the potential to limit a
school's ability to sell or market fluid milk on school premises
outside of the school meal programs; however, very few if any were
found to actually limit the sale or marketing of fluid milk.
The intent of this rule is to ensure no vending contract restricts
a school's ability or discretion to provide children access to fluid
milk outside of the school meal programs. This rule does not require
that participating schools sell or market fluid milk outside of the
NSLP, or make fluid milk available at school-sponsored events.
Furthermore, this rule does not affect the requirements for offering
fluid milk as part of a reimbursable lunch in the NSLP as described in
7 CFR 210.10(m).
For additional background information, please refer to the interim
rule.
II. Discussion of Public Comments and FNS Response
FNS received a total of eight comments during the 180-day comment
period that ended on May 22, 2006. The commenters included
representatives from dairy industry trade associations (3), a school
food authority (1), a State agency (1), and individuals (3).
Of the eight comments received, six of the commenters, including
one individual and the representatives from a school food authority, a
State agency, and the trade associations, were in support of finalizing
the requirements as established by the interim rule to prohibit any
restriction of the sale or marketing of fluid milk in participating
schools.
One commenter in support of the provision also felt that the
Department should extend the rulemaking to prohibit or restrict all
exclusive beverage contracts in participating schools.
Under existing NSLP regulations at 7 CFR 210.21, SFAs must comply
with requirements intended to ensure the integrity of procurement
practices for the purchase of goods and services with funds from the
nonprofit school foodservice account. Furthermore, NSLP regulations
provide SFAs with the flexibility to enter into vending contracts that
best meet their needs for foods and beverages sold outside of the
school meal programs. This rulemaking is intended to ensure vending
contracts do not directly or indirectly restrict the sale or marketing
of fluid milk at any time or in any place on school premises or at
school-sponsored events. Other procurement issues regarding vending
contracts and agreements are outside the scope of this rulemaking.
Two of the individual commenters expressed opposition to
implementing the rule as final because of concern that it favors dairy
industry interests and inhibits schools' ability to choose whether to
sell or market fluid milk. One commenter also disapproved of
conventional dairy production practices.
This rulemaking does not require or promote the sale or marketing
of fluid milk outside the school meal programs. SFAs retain the
authority to establish procurement contracts in accordance with Program
regulations for foods sold outside of the school meal programs that
best meet the nutritional and operational needs of their students and
schools.
Finally, discussion of conventional dairy production practices is
outside the scope of this rulemaking.
FNS considered all comments received and determined that these
comments did not warrant any changes to the requirements established by
the interim rule, or were outside the scope of the interim rule. FNS is
issuing the interim rule as final without revision.
III. Procedural Matters
Executive Order 12866
This 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.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C. 601-612). Implementation of this
rule is not expected to impose a significant economic impact on a
substantial number of small entities. No later than the beginning of
School Year 2006-2007, SFAs were required by section 102 of Public Law
108-265 to ensure that any existing or new vending contracts did not
include provisions that restrict the sale or marketing of fluid milk.
Therefore, the number of SFAs expected to be impacted by this rule is
minimal.
[[Page 38890]]
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 National School Lunch Program is listed in the Catalog of
Federal Domestic Assistance under No. 10.555. 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], this program is included in the scope of
Executive Order 12372, which requires intergovernmental consultation
with State and local officials.
Since the NSLP is a State-administered, federally funded program,
FNS headquarters and regional office staff 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 contributes to any
discretionary decisions made in establishing requirements for rules
that govern the NSLP.
Executive Order 13132
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 rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is intended to have preemptive effect with
respect to any State or local laws, regulations, or policies which
conflict with its provisions or which would otherwise impede its full
implementation. This 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
Under USDA Regulation 4300-4, ``Civil Rights Impact Analysis,'' FNS
has reviewed this final rule to identify and address any major civil
rights impacts the rule might have on children on the basis of age,
race, color, national origin, sex or disability. After a careful review
of the rule's intent and provisions, FNS has determined that this rule
does not affect the participation of protected individuals in the Child
Nutrition Programs. 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 from the public
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.
E-Government Act Compliance
The FNS is committed to complying with the E-Government Act of
2002, 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 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.
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
0
Accordingly, the interim rule amending 7 CFR Part 210 which was
published at 70 FR 70031 on November 21, 2005, is adopted as a final
rule without change.
Dated: July 29, 2009.
Julia Paradis,
Administrator, Food and Nutrition Service.
[FR Doc. E9-18690 Filed 8-4-09; 8:45 am]
BILLING CODE 3410-30-P