Facts
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
- 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. - 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. - 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