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STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES DIVISION OF SOCIAL JUSTICE
ATTORNEY GENERAL
Via Federal eRulemaking Portal at www.regulations.gov
Pamilyn Miller, Administrator
Tina Namian, Chief, School Programs Branch
Policy and Program Development Division
Food and Nutrition Service
1320 Braddock Place, 4th Floor
Alexandria, VA 22314
Re: USDA’s Proposed Rule: Restoration of Milk, Whole Grains, and Sodium
Flexibilities, Docket No. FNS-2020-0038, 85 Fed. Reg. 75,241 (Nov. 25, 2020).
Dear Administrator Miller and Branch Chief Namian:
The Attorneys General of New York, California, Connecticut, Delaware, the District of
Columbia, Iowa, Illinois, Maryland, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania,
and Vermont (“State AGs”) strongly object to the United States Department of Agriculture’s
(“USDA”) proposal to weaken critical nutrition standards of the National School Lunch and
Breakfast Programs, on which millions of children in this country rely. 1 Before the pandemic,
more than 84 percent of the school breakfasts and 72 percent of the school lunches were served
free or at reduced prices based on family or community-wide income levels. 2 The heavy
1
Restoration of Milk, Whole Grains, and Sodium Flexibilities, Docket No. FNS-2020-0038, 85
Fed. Reg. 75,241 (Nov. 25, 2020) (“Proposed Rule”). Certain State AGs, and other interested
stakeholders, requested an extension of the public comment period, but USDA has not published
notice of whether any of those requests were granted. https://www.regulations.gov/document?D=
FNS-2020-0038-0160. The State AGs reserve the right to supplement these comments if USDA
extends the public comment period.
2
Food Research and Action Center, State of the States, https://frac.org/research/resource-
library/state-of-the-states-profiles?post_type=resource&p=4483&state; USDA Food and
Nutrition Service, NSLP Monthly Participation, https://fns-prod.azureedge.net/sites/default/files/
resource-files/36slmonthly-7.pdf (data table as of July 10, 2020); and SBP Monthly Participation,
https://fns-prod.azureedge.net/sites/default/files/resource-files/35sbmonthly-7.pdf (data table as of
July 10, 2020).
28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE (212) 416-8446 ● FAX (212) 416-6007 ● WWW.AG.NY.GOVAdministrator Miller and Branch Chief Namian
Page 2
December 28, 2020
economic toll of the pandemic is bound to cause many more families in this country to rely on
schools to provide the primary source of nutrition for their children. USDA should not at the
same time be weakening key nutrition requirements of these essential meals.
Moreover, public health experts have analyzed USDA’s proposal and assessed not only that the
proposed weakening of the whole grain and sodium standards “would likely have adverse
impacts on children’s overall health, food security, and academic performance” but that such
changes may “impact the most vulnerable children” from “households in predominantly black
and Hispanic and rural schools.” 3 As a science-focused group warns, “[r]olling back science-
based regulations . . . exacerbate[s] existing inequities and health disparities that
disproportionately affect low-income populations and communities of color and put[] many
children on a path to poorer health.” 4 The Association of State Public Health Nutritionists, whose
members are closely involved in the implementation of federal nutrition programs at the
state/territorial level, caution that “[w]eakening the standards will significantly increase
disparities in healthy food access.” 5
Notably, in the Proposed Rule USDA alludes vaguely to “civil rights impacts . . . that may result
from the implementation of this rule,” 6 but continues to withhold from the public its Civil Rights
Impact Analysis, three weeks after many of the State AGs submitted a letter to USDA requesting
that the Analysis be made available promptly to the public and that the public comment period be
extended. In light of peer-reviewed medical literature reporting the disturbing “confluence of
obesity, severe Covid-19 outcomes, and health disparities based on race and ethnicity,” 7 USDA’s
endeavor to reinstate weaker nutrition standards for school meals on which black and Hispanic
children disproportionately rely reflects the agency’s apparent disinterest in working to address
the alarming disparities in health equity along racial and ethnic lines that the pandemic has laid
bare.
3
Letter to USDA dated December 22, 2020 from Healthy Eating Research at Duke University, at p.7,
https://www.regulations.gov/document?D=FNS-2020-0038-0776.
4
Letter to USDA dated December 22, 2020 from Union of Concerned Scientists, at p. 4,
https://www.regulations.gov/document?D=FNS-2020-0038-0777.
5
Letter to USDA dated December 23, 2020 from Association of State Public Health Nutritionists, at p.1,
https://www.regulations.gov/document?D=FNS-2020-0038-0875.
6
85 Fed. Reg. at 75,256,
7
See e.g., Belanger M.J. et al., Covid-19 and disparities in nutrition and obesity. N Engl. J. Med. 2020;
383 (Epub 2020 Jul 15), at https://www.nejm.org/doi/full/10.1056/NEJMp2021264#article_references.
2Administrator Miller and Branch Chief Namian
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December 28, 2020
USDA’s own research provides powerful evidence that the science-based nutrition standards that
USDA established in 2012 (the “2012 Rule”), as it had been directed to do by Congress, have
demonstrably improved the nutritional quality of the school breakfasts and lunches on which so
many children in this country rely. 8 Yet, with its current proposal , USDA—frequently invoking
“operational flexibility,” but not offering meaningful justification based on nutritional science—
seeks again to permanently weaken core standards for sodium and whole grains.
USDA’s Proposed Rule is nearly identical to its earlier attempt to permanently roll back the
sodium and whole grain nutrition standards in the 2012 Rule, which was overwhelmingly
opposed by the public. 9 In that rulemaking from 2018, as now, USDA ignored the Congressional
mandate that school meal requirements be based on scientific consensus regarding child
nutrition. But even more so now than during USDA’s first attempt to weaken the standards, there
is additional scientific confirmation from the National Academies of Sciences, Engineering and
Medicine (“National Academies”) for retaining the final sodium target that USDA is proposing
to eliminate. 10 Further, USDA’s own School Nutrition and Meal Cost Study, released in April
2019, studied various factors associated with the nutritional quality of school meals, and
established that the two factors in the Study most significantly associated with greater nutritional
quality of school lunches were a schools’ compliance with the initial whole grain and sodium
requirements established in the 2012 Rule. 11 According to USDA’s Study, overall “[t]here was a
positive and statistically significant association between student participation in the [National
8
See generally USDA FNS, School Nutrition and Meal Cost Study, Final Report, April 2019,
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study (last accessed Dec. 28, 2020).
9
In the public comments submitted in response to USDA’s 2017 “Interim Final Rule,” 82 Fed. Reg.
56,703 (Nov. 30, 2017), less than 1 percent of all comments supported the proposed changes to sodium,
whole grains, and flavored milk. See comment tables at 83 Fed. Reg. at 63,777-78. The Final Rule was
published at 83 Fed. Reg. 63,775 (Dec. 12, 2018).
10
In the 2019 DRIs, the National Academies identified sodium intake limits for the first time as “Chronic
Disease Risk Reduction” intake values, and lowered recommended intake values for children ages 4-8.
National Academies of Sciences, Engineering, and Medicine; Health and Medicine Division; Food and
Nutrition Board; Committee to Review the Dietary Reference Intakes for Sodium and Potassium, Oria M,
Harrison M, Stallings VA, eds., Dietary Reference Intakes for Sodium and Potassium. Washington, DC:
National Academies Press; March 5, 2019, summary available at https://www.nap.edu/
resource/25353/030519DRISodiumPotassium.pdf (last accessed Dec. 28, 2020).
11
USDA, School Nutrition and Meal Cost Study, April 2019, Volume 2, at pp. 96-97, https://fns-
prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. The USDA School Nutrition
and Meal Cost Study is co-authored by a nationally-recognized expert in nutrition, childhood obesity, and
school food environments, and an experienced pediatric nutritionist.
3Administrator Miller and Branch Chief Namian
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December 28, 2020
School Lunch Program] and the nutritional quality of NSLP lunches.” 12 Moreover, USDA
acknowledges in a footnote to the Proposed Rule its Study’s finding that “school lunches of
higher nutritional quality . . . did not cost significantly more to produce than those of lowest
nutritional quality.” 13
School Meal Nutrition Standards Must Be Based on Nutrition Science
Nutrition standards for breakfasts and lunches (“school meals”) served under the National School
Lunch Act and Child Nutrition Acts must meet three sets of requirements. First, they must be
based on “tested nutritional research.” 14 Second, they must be “consistent with the goals of the
most recent Dietary Guidelines for Americans.” 15 Jointly issued by USDA and the U.S.
Department of Health and Human Services, the Dietary Guidelines for Americans (“Dietary
Guidelines”) are “nutritional and dietary information and guidelines for the general public” that
are “based on the preponderance of the scientific and medical knowledge which is current at the
time the report is prepared.” 16
Third and most recently, in 2010 Congress passed the Healthy, Hunger-Free Kids Act, requiring
that USDA issue nutritional standards for school meals based explicitly on the recommendations
of a 2009 study by the National Academy of Sciences (“Nutrition Board Study”). 17 The Study
found that diets high in sodium and low in whole grains adversely affect the cardiovascular
health and weight of children. Accordingly, USDA issued its 2012 Rule, based on the Study and
on the Dietary Guidelines, that would significantly decrease the sodium in school meals and
require all grain foods to be whole grain-rich. 18
12
USDA, School Nutrition and Meal Cost Study, April 2019, Summary of Findings, at p.38, https://fns-
prod.azureedge.net/sites/default/files/resource-files/SNMCS_Summary-Findings.pdf.
13
85 Fed. Reg. at 75,251 n.30.
14
42 U.S.C. §§ 1758(a)(1), 1773(e)(1).
15
42 U.S.C. §§ 1758(a)(4), 1758(f)(1).
16
7 U.S.C. §§ 5341(a)(1), (2).
17
Pub. L. No. 111-296, § 201, 124 Stat. 3183, 3214-15 (2010) (codified at 42 U.S.C. § 1753(b)(3)(A));
Institute of Medicine, School Meals: Building Blocks for Healthy Children. Washington, DC: The
National Academies Press, https://www.fns.usda.gov/sites/default/files/SchoolMeals
IOM.pdf (last accessed Dec. 28, 2020).
18
77 Fed. Reg. at 4,088 (Jan. 26, 2012).
4Administrator Miller and Branch Chief Namian
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December 28, 2020
The State AGs Oppose USDA’s Proposals to Weaken School Meal Nutrition Standards
The State AGs have strong interests in the health and welfare of the children in their States and
thus in the continuance of the 2012 Rule’s science-based nutrition standards for school meals
that promote health and welfare. The AGs’ States also pay for health care provided to millions of
children and adolescents who rely on school meals. 19 Many of the State AGs defended those
interests by bringing a legal challenge in 2019 under the Administrative Procedure Act (“APA”)
to USDA’s earlier regulation (the “2018 Rule”)—nearly identical to the Proposed Rule—that
weakened science-based sodium and whole grain standards in school meals. 20 That 2018 Rule
was vacated by a federal court earlier this year for violating the APA. 21
The State AGs oppose the proposed changes to USDA’s 2012 science-based sodium and whole
grain nutritional requirements because they are likely to harm the health of children and
adolescents, particularly those for whom school meals are a major source of nutrition. As noted
above, the Proposed Rule is likely to disproportionately impact children belonging to racial and
ethnic minority groups, thereby potentially intensifying, rather than ameliorating, the inequities
in nutrition and health outcomes placed into stark relief by the COVID-19 pandemic.
Sodium. USDA stated in its 2012 Rule that “reducing the sodium content of school meals is a
key objective of this final rule reflecting the Dietary Guidelines recommendation for children
and adults to limit sodium intake to lower the risk of chronic diseases” and that modest
reductions in sodium intake reduce cardiovascular events and medical costs. 22 Accordingly, the
2012 Rule established sodium limits for school meals, basing the “final sodium target” on the
sodium limits recommended by the Nutrition Board Study and the 2010-2015 Dietary
Guidelines, which represented the highest levels of daily sodium intake that are likely to pose no
risk of adverse health effects. 23
19
Over 36 million children throughout the United States were enrolled in Medicaid or the Children’s
Health Insurance Program (CHIP) as of December 2018. See Georgetown University Health Policy
Institute, May 2009, Medicaid and CHIP Enrollment, at p. 17, https://ccf.georgetown.edu/wp-
content/uploads/2019/06/Enrollment-Decline.pdf (last accessed Dec. 28, 2020).
20
See New York et al. v. USDA, 454 F.Supp.3d 297, 309 (S.D.N.Y. 2020) (denying USDA’s motion to
dismiss and holding that “Plaintiff States alleged an injury in fact to their proprietary interests and thus,
have established standing”).
21
Center for Science in the Public Interest v. Perdue, 438 F.Supp.3d 546, 572 (D. Md. 2020).
22
77 Fed. Reg. at 4,097, 4,133 (Jan. 26, 2012).
23
See id. at 4,098.
5Administrator Miller and Branch Chief Namian
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December 28, 2020
Under the 2012 Rule, the final sodium target was to be phased in via two intermediate sodium
reduction targets. The first intermediate sodium limit was implemented beginning in school year
2014-2015. The second intermediate limit was to go into effect in the 2017-2018 school year, but
USDA delayed its implementation by years. USDA has now proposed to delay this second phase
sodium limit by three more years (on top of the existing four-year delay)—to school year 2024-
2025. USDA now also proposes to eliminate entirely the final sodium target, which, under
current USDA regulations, would go into effect in the 2022-2023 school year.
USDA is proposing to delay or eliminate these targets even though the science supporting lower
sodium in children’s diets has only strengthened in recent years. The “Chronic Disease Risk
Reduction” daily sodium limits for younger school-aged children issued by the National
Academies in the March 2019 “Dietary Reference Intakes” are even lower than the “tolerable
upper intake level” of daily sodium in the 2005 DRIs, on which USDA’s 2012 final sodium
target was based. 24 These new DRIs are fundamental to school nutrition standards, as they will
form the basis for the sodium guidance for children in the forthcoming 2020-2025 Dietary
Guidelines. 25 USDA acknowledges in the Proposed Rule that the law “requires that school meals
are consistent with the goals of the latest Dietary Guidelines for Americans.” 26 Despite USDA’s
awareness that these impending Dietary Guidelines are almost certain to incorporate further
sodium reduction recommendations reflecting the scientific consensus of the new DRIs, USDA
is proposing to scrap the existing schedule requiring substantial further sodium reductions in
school meals. 27 Additionally, eliminating the science-based final sodium target, and delaying by
three more years the implementation of the second intermediate sodium limit, will make it harder
for schools that want to continue to reduce sodium in school meals to do so, because the food
industry will be slower to develop and market lower-sodium food products for the K-12 school
market. 28
24
See Dietary Reference Intakes for Sodium and Potassium. March 5, 2019, summary available at
https://www.nap.edu/resource/25353/030519DRISodiumPotassium.pdf.
25
See USDA/HHS, “How will all aspects of the diet be addressed during the 2020 Committee’s scientific
review?” https://www.dietaryguidelines.gov/most-popular-questions. (last accessed Dec. 28, 2020).
26
85 Fed. Reg. at 75,241 (emphasis added).
27
USDA also noted in its 2017 Interim Final Rule that it intended to re-evaluate the sodium reduction
targets with the release of the 2020-2025 Dietary Guidelines. 82 Fed. Reg. at 56,703.
28
The Proposed Rule states that, based on “unpublished data” from USDA’s School Nutrition and Meal
Cost Study, in school year 2014-2015 (the first year of implementation of the first sodium target under the
2012 Rule), nearly one-fifth of school lunch menus were already meeting sodium target 2, and over half
of school breakfast menus were already meeting sodium target 2. See 85 Fed. Reg. at 75,254 n.61. Such
data, that USDA has apparently chosen to exclude from the publicly-available version of its Study
released in 2019, demonstrates that a great number of schools were already complying with sodium target
6Administrator Miller and Branch Chief Namian
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December 28, 2020
Whole grains. USDA recognized in its 2012 rulemaking that whole grains are an important
source of nutrients, that eating whole grains may lower body weight and reduce the risk of
cardiovascular disease, and that despite this, school meals at the time contained mostly refined
(not whole) grains. 29 Accordingly, USDA required that, after a phase-in period, all grain
products in school meals be “whole grain-rich” (consisting of at least 51% whole grains), and
later allowed schools to request product-specific waivers if they could explain their difficulty
adhering to the final whole grains standard. But USDA is now proposing to slash the requirement
by requiring only half (not all) of the weekly grains offered to students to be “whole grain-rich.”
USDA has provided no basis in nutrition science for this drastic departure from the requirement
of the 2012 Rule. Although USDA states that the whole grain standard may be burdensome on
school districts, it fails to acknowledge its own findings that the vast majority of schools districts
were meeting the 100% whole grain-rich standard already. 30 As with USDA’s continued attempt
to roll back science-based sodium standards, rolling back the whole grain-rich standard will
make it harder for schools that want to continue to offer 100 percent whole grain-rich foods to do
so. 31
2 six years ago. The data is difficult to square with USDA’s explanations that “transitioning to Sodium
Target 2 requires product reformulation and innovation in the form of new technology and/or food
products” and that moving to sodium target 2 could “potentially lower the acceptance of meals” by
students. See id. at 75,244-45.
29
77 Fed. Reg. at 4,093 (Jan. 26, 2012).
30
See 82 Fed. Reg. at 56,703 (Nov. 30, 2017). The Proposed Rule asserts that “continually granting short-
term exemptions to the whole grain-rich requirement has created confusion for menu planners.” 85 Fed.
Reg. at 75,247. But USDA’s repeated efforts in recent years to roll back the whole grain-rich standard and
defer sodium reduction targets established in the 2012 Rule are likely also a source of confusion to some
school menu planners. In contrast, USDA’s own School Nutrition and Meal Cost Study found that
“understanding the updated nutritional standards” in the 2012 Rule was the lowest concern for directors
of school meal programs out of 8 topics presented. See USDA, School Nutrition and Meal Cost Study,
April 2019, Volume 1, at p.49, https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-
Volume1.pdf.
31
Compare General Mills, Inc. Letter to USDA dated Dec. 18, 2020, at 2-3, in response to the Proposed
Rule, at https://www.regulations.gov/document?D=FNS-2020-0038-0713 (suggesting that USDA should
not require that all grains be whole grain-rich until school year 2024-2025 and agreeing with USDA’s
proposal to delay implementation of sodium target 2 until school year 2024-2025) with General Mills,
Inc. Letter to USDA dated Jan. 29, 2018, at 2, in response to USDA’s November 30, 2017 Interim Final
Rule, https://www.regulations.gov/document?D=FNS-2017-0021-7707 (recommending that USDA
require “that all grain foods be whole grain-rich by the end of School Year 2020-2021” and retain sodium
target 1 only until the 2020-21 school year). The shifting positions of General Mills (a major national
supplier of foods for school meals), in response to USDA’s increasingly drastic proposals to weaken
sodium and whole grain standards, indicates that rolling back federal nutrition regulations has a deterrent
effect on the development of more nutritious products by the food industry. The resulting market forces
7Administrator Miller and Branch Chief Namian
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December 28, 2020
Under the APA, an agency may not issue a rule or regulation that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agencies
must base their regulations on a consideration of “the relevant factors” and they must examine
the relevant data. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). A regulation is arbitrary and capricious if the agency “has relied on factors which
Congress has not intended it to consider” or “if the agency . . . offered an explanation for its
decision that runs counter to the evidence before the agency.” Id. And when an agency proposes
to suspend, revise, or revoke an existing rule, it may not “ignore[ ] or countermand[ ] its earlier
factual findings without reasoned explanation for doing so.” FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 537 (2009). Further, an agency must “provide a more detailed justification
than what would suffice for a new policy created on a blank slate” when “its new policy rests
upon factual findings that contradict those which underlay its prior policy.” Id. at 513-15.
Although an agency need not show that a new rule is “better” than the rule it replaced, it must
always demonstrate that “it is permissible under the statute, that there are good reasons for it, and
that the agency believes it to be better.” Id. (emphases omitted).
Adoption of the proposed changes in a final rule would violate the APA because the new
standards would not be consistent with the findings USDA made when it adopted the 2012
standards, would violate the statutory requirements for nutritional standards for school meals—
which require that the standards be based on tested nutritional research, the Dietary Guidelines,
and Nutrition Board Study—and would not be based on the factual record. In the Proposed Rule,
USDA has failed to adequately consider nutritional science when weakening the nutrition
standards of children’s meals and has failed to provide adequate explanations and facts for its
marked departure from the 2012 Rule. The State AGs thus urge USDA not to make these
changes to the school meals requirements.
***
The State AGs are also concerned about the timing of this proposal and the speed with which
USDA contemplates finalizing it. 32 First, USDA’s unusually-short one-month comment period
fails to take into account the magnitude of the interest in school nutrition standards. 33 Indeed
make it more difficult and expensive for schools that would like to adhere to the 2012 nutrition standards
to do so.
32
USDA states that it “intends to issue a final rule in spring 2021,” 85 Fed. Reg. at 75,245, but USDA’s
latest Regulatory Agenda indicates that it plans to finalize the Rule in January 2021. See
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202010&RIN=0584-AE81 (last accessed
Dec. 28, 2020).
33
December 9, 2020 Letter from the Attorneys General of California, the District of Columbia, Delaware,
Illinois, Maine, Maryland, Michigan, Nevada, New Mexico, New York, Oregon, and Vermont,
https://www.regulations.gov/document?D=FNS-2020-0038-0160.vSee also Exec. Order No. 12,896, 38
8Administrator Miller and Branch Chief Namian
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December 28, 2020
when USDA previously attempted to weaken the sodium and whole grain school meal standards,
it provided a 60-day public comment period, and over 80% of the more than 7,700 comments
received by USDA were submitted in the last 30 days of that period. 34 Also, as USDA has
recognized in eventually providing a 90-day comment period earlier this year on another of its
proposals to modify nutrition standards in school meals, many stakeholders are dealing with
pandemic-related issues and are not able to prepare comments within a thirty-day timeframe. 35
Second, while the State AGs appreciate USDA’s actions to facilitate the distribution of school
meals while schools have been closed due to the COVID-19 pandemic, the State AGs oppose
USDA moving forward with discretionary rulemaking like the Proposed Rule while the national
COVID-19 emergency continues. Indeed, most of the State AGs signed a March 31, 2020 letter
to the Office of Management and Budget (OMB) requesting that OMB and federal executive
agencies “freez[e] all new and pending regulations other than those that address emergency
situations or other urgent circumstances relating to health, safety, financial, or national security
matters, or that are required by statutory or judicial deadlines.” 36
Third, as mentioned above, the Proposed Rule is premature given the imminent release of the
2020-2025 Dietary Guidelines. 37
Finally, USDA should not finalize the Proposed Rule before USDA provides the public access to
the Civil Rights Impact Analysis, a document that USDA created and relies on in its Proposed
Rule, but which has not been shared with the public. 38 Many of the State AGs earlier requested
Fed. Reg. 51,735 (Oct. 4, 1993) (“[E]ach agency should afford the public a meaningful opportunity to
comment on any proposed regulation, which in most cases should include a comment period of not less
than 60 days.”).
34
See FNS-2017-0021, https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=
postedDate&po=100&dct=PS&D=FNS-2017-0021.
35
See 85 Fed. Reg. 85, 273 (Extension of Comment Period, March 23, 2020).
36
See Letter dated March 31, 2020 from 21 State Attorneys General to Acting Director of O.M.B.,
https://www.nj.gov/oag/newsreleases20/COVID-19-Rule-Delay-Letter-Final.pdf
37
See USDA/HHS, “Coming Soon: USDA and HHS plan to release the 2020-2025 Dietary Guidelines for
Americans at the end of this year.” https://www.dietaryguidelines.gov/work-under-way/interactive-
timeline (accessed on Dec. 28, 2020).
38
See Proposed Rule, 85 Fed. Reg. at 75,256.
9Administrator Miller and Branch Chief Namian
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December 28, 2020
that this analysis, and the data on which it relies, be made public. 39 Given the importance to
stakeholders of fully understanding USDA’s assessment of the potential civil rights impacts of
the Proposed Rule, USDA’s continued delay in making its analysis available during the public
comment period deprives the public of an opportunity for “meaningful and informed comment,”
as required by the Administrative Procedure Act. 40
Conclusion
For these reasons, the State AGs urge USDA not to weaken the nutrition standards for school
meals, and instead to maintain the science-based sodium and whole grain standards provided for
in the 2012 Rule.
Sincerely,
Letitia James
Attorney General
State of New York
39
December 9, 2020 Letter to Tina Namian from the Attorneys General of California, the District of
Columbia, Delaware, Illinois, Maine, Maryland, Michigan, Nevada, New Mexico, New York, Oregon,
and Vermont, https://www.regulations.gov/document?D=FNS-2020-0038-0160.
40
American Medical Ass’n v. Reno, 57 F.3d 1129, 1132 (D.C. Cir. 1995); cf. District of Columbia v.
USDA, 2020 WL 6123104, at *29-30 (D.D.C. Oct. 18, 2020) (in holding that a USDA rule limiting
certain waivers in the Supplemental Nutrition Assistance Program violated the APA, the court cited
USDA’s recognition of the disparate impact on protected groups and relied in part on USDA’s own Civil
Rights Impact Analysis). See also Engine Mfrs. Ass’n v. EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994)
(“[T]he Administrative Procedure Act requires the agency to make available to the public, in a form that
allows for meaningful comment, the data the agency used to develop the proposed rule.”). Further, USDA
has failed to undertake any rigorous assessment of the costs and benefits of the Proposed Rule, in order to
evaluate whether it maximizes net benefits, taking into account the effect on public health and equity, as
Executive Orders 12,866 (Oct. 4, 1993) and 13,563 (Jan. 18, 2011) require.
10Administrator Miller and Branch Chief Namian
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December 28, 2020
Xavier Becerra Kathleen Jennings
Attorney General Attorney General
State of California State of Delaware
Karl A. Racine William Tong
Attorney General Attorney General
District of Columbia State of Connecticut
Kwame Raoul Tom Miller
Attorney General Attorney General
State of Illinois State of Iowa
Brian E. Frosh Aaron D. Ford
Attorney General Attorney General
State of Maryland State of Nevada
11Administrator Miller and Branch Chief Namian
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December 28, 2020
Gurbir S. Grewal Hector Balderas
Attorney General Attorney General
State of New Jersey State of New Mexico
Ellen Rosenblum Josh Shapiro
Attorney General Attorney General
State of Oregon Commonwealth of Pennsylvania
Thomas J. Donovan, Jr.
Attorney General
State of Vermont
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