Oct. 10, 2019-- NCLA Senior Litigation Counsel, Harriet Hageman discusses the latest unlawful regulation by the U.S. Department of Agriculture with Common Sense Talk Radio with Beth Ann.

Federal agencies have exponentially expanded their authority by engaging in the common-place tactic of issuing informal interpretations, fact sheets, and other forms of “guidance,” the practical outcome of which is to surreptitiously force the regulated community to comply with a variety of “policy positions” that are not legally mandatory. The agencies, in other words, use these guidance documents to make law.

The United States Department of Agriculture (“USDA” or “Department”) and the Animal and Plant Health Inspection Service (“APHIS”) have taken this “guidance-is-law” ploy to an entirely new level earlier this year, attempting to replace a properly-adopted regulation related to animal identification with an entirely new and costly approach, all of which was done under the auspices of a two-page “Factsheet.”

The USDA and APHIS, however, cannot enforce animal identification requirements without formal rulemaking.

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