Administrative Law, Professor Raful

11/19/2015
Student # 71334

CHOMP v. Dept. of Agriculture

The main issue in this case is whether the
Department of Agriculture abused its discretion when it
allegedly deprived CHOMP of the opportunity to
participate in a public notice and comment period. A subissue to be considered is whether prohibiting flavored
milk is too drastic a departure from the draft rule
originally considered by the Department of Agriculture.
The general rule with respect to an adequate notice
and comment period can be found in 553(b) of the APA
which states: General notice of proposed rulemaking
shall be published in the Federal Register, unless persons
subject thereto are named and either personally served
or otherwise have actual notice thereof in accordance
with law. The notice shall include: (1) a statement of the

time, place, and nature of public rulemaking proceedings;

(2) reference to the legal authority under which the rule is
proposed; and (3) either the terms or substance of the
proposed rule or a description of the subjects and issues
involved.

The APA broadly describes a procedure that

is expected to ensure that interested parties are able to

have their voices heard by an agency that is formulating
a rule. Courts have ruled that Like other agencies, the
EPA must provide notice sufficient to fairly apprise
interested persons of the subjects and issues before the
Agency. Natural Resrouces Defense Council v. U.S. EPA,
279 F.3d 1180 (9th Circ. 2002). In the case of the NRDC v.
EPA, the court found that the agency had not given a
sufficient comment and notice period and therefore had
abused its discretion.
A main source of controversy in the NRDC v. EPA
case was that the final rule had deviated from the

proposed draft. While this is a perfectly allowable result

of the rulemaking process, the case determined that the
final rule must be a logical outgrowth of the proposed
rule, and if it is not then the agency must provide notice
to interested parties and allow for further comment
periods.
In the present case, the record is unclear of the
extent to which the Dept. of Agriculture went to ensure
that the notice and comment period was adequate to
inform all interested parties. Regardless of the measures
that the Agency took, CHOMP can protest the proposed
rule because of the deviation from the initial proposed
rule. Because the rule deviated from the original, and a
report was cited in support of it that was not mentioned
in the original proposal, CHOMP can claim that the final
rule is not a logical outgrowth from the original rule.
According to the court in NRDC v. EPA, a deviation of this

sort would be enough to prompt a new round of notice

and comment. The court makes this clear when they
state: a final rule which departs from a proposed rule
must be a logical outgrowth of the proposed rule The
essential inquiry focuses on whether interested parties
reasonably could have anticipated the final rulemaking
from the draft permit. In determining this, one of the
salient questions is whether a new round of notice and
comment would provide the first opportunity for
interested parties to offer comments that could persuade
the agency to modify its rule. They go on to state A
decision made without adequate notice and comment is
arbitrary or an abuse of discretion.
The record shows that CHOMP was not only unaware
that flavored milk would be prohibited by the Agencys
rule, but they were also not afforded an opportunity to
offer comments to the Agency in support of their position.

Because the Agency deviated so drastically, and without

any notice to interested parties, CHOMP was unable to
submit their comments in an attempt to persuade the
Agency to alter their rules. Because CHOMP was
deprived of the opportunity to take part in a notice and
comment period the Agency can be found to have acted
arbitrarily, thereby abusing its discretion.
Procedurally, CHOMP has a valid claim that the final
rule was not a logical outgrowth of the proposed rule, so
theoretically they can protest that rule and stop the
Agency from banning flavored milk from school lunches.
Unfortunately, the final rule can just as easily be
determined to have been a logical outgrowth of the
original draft and this would bar CHOMP from protesting
the final rule. Because flavored milk is considered a
sugary that is similar to the other banned foods, it
logically flows from the original draft rule that it would

also be banned in the final rule. The preamble to the

proposed rule contained explanatory material outlining
the Agencys desire to provide a low sugar meal to
students. This would logically require prohibiting flavored
milk due to the sugar content.
Furthermore, although the record does not
specifically state the adequacy of the notice and
comment period, the final rule was the result of a number
of comments supporting the prohibition of flavored milk.
This suggests that there was an adequate notice and
comment period, but CHOMP is simply upset with the
final proposed rule. Because the rule was heavily
commented on there appears to have been adequate
notice and plenty of comments. If it is determined that
the final rule was a logical outgrowth of the proposed
rule, and there was also adequate notice and comment,

then the Agency really cannot be found to have done

anything wrong.
Because of the forgoing reasons, CHOMP will likely
not be able to appeal the final rule proposed by the
Department of Agriculture.