Policy statement were to be considered legislative rule

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Reference no: EM133799978

Question

Assume that the United States Department of Agriculture (USDA) administers a school lunch subsidy program that provides federal funds to schools that comply with certain federal statutory and regulatory requirements regarding school lunches. Assume that the program is not a grant or benefits program as defined by the Administrative Procedure Act, Section 553(a)(2). A number of groups collectively file a rulemaking petition with the USDA asking the USDA to adopt a rule that requires schools to serve at least four vegetarian meals per month. In response to the rulemaking petition, the USDA published a "Notice of Vegetarian Meal Requirements" in the Federal Register inviting comments by all interested parties on the request in the rulemaking petition. A number of groups file comments with the agency, some in favor, and some against the proposal. The Beef Producers Association files a comment with the agency opposing any requirement of having vegetarian lunches. After receiving comments and reviewing its current legal authority, the USDA denies the rulemaking petition and publishes a separate "Policy Statement" in the Federal Register that states in relevant part that the agency interprets its current regulations to allow the agency to require vegetarian meals, and that the agency will require schools to provide at least two vegetarian lunches per month for the upcoming school year. The current regulation that the agency relies upon in its policy statement to require vegetarian lunches states as follows: § 210.10 School Lunch reimbursement requirements. School food authorities shall ensure that participating schools provide nutritious and well-balanced meals to children based on nutrition standards that include: (1) A minimum of one-third of the recommended daily allowance of protein, calcium, iron, Vitamin A, and Vitamin C. (2) Meals that provide a variety of foods. (3) Meals that limit total fat to 30 percent of calories, limit saturated fat to less than 10 percent of calories, and are low in cholesterol. (4) Meals that provide plenty of vegetables, fruits, and grain products. The Beef Producers Association files an action in federal court claiming that by imposing the vegetarian lunch requirement, the USDA adopted a new regulation without going through the required notice and comment process for new regulations. The USDA responds stating that the policy statement is not a regulation. It is an interpretation of its current regulatory authority, and a general statement of policy of what the USDA expects schools to do prospectively to comply with current regulations. Alternatively, the USDA asserts that if the statement is a regulation, then the agency had good cause to bypass the notice and comment requirements because the upcoming school year starts in 45 days, and schools need time to develop menus and purchase the necessary food items for vegetarian meals. Finally, the USDA contends that if the good cause exception does not apply, then it complied with the notice and comment requirements when it posted the rulemaking petition regarding vegetarian meals in the Federal Register and sought comments. Assume that the USDA has no special rulemaking requirements in its own statutes or regulations and follows the APA's notice and comment informal rulemaking requirements in Section 553 when making rules.

1. Does the USDA's "policy statement" meet the requirements for policy statements, or for interpretive rules, that are exempt from the APA's notice and comment requirements? In answering this question, analyze the requirements for each exception by explaining the legal standards for each and applying the facts to those standards.

2. If the USDA's "policy statement" were to be considered a legislative rule, are the requirements for the good cause exception met? In answering this question, analyze the requirements for this exception by explaining the legal standards for it and applying the facts to those standards.

3. If the USDA's "policy statement" were to be considered a legislative rule, did the USDA comply with the APA's notice and comment requirements, including the logical outgrowth standard? In answering this question, analyze the requirements by explaining the legal standards and applying the facts to those standards.

Reference no: EM133799978

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