Hoctor v. United States Department of Agriculture

United States Court of Appeals for the Seventh Circuit · Administrative Law

Administrative LawAPAnotice and commentinterpretive rulelegislative ruleAnimal Welfare Actagency rulemakingnumerical rules

Facts

The Department had validly promulgated a regulation requiring animal housing facilities to be structurally sound, made of appropriate material and strength, and maintained to protect and contain the animals. Hoctor, a dealer in exotic animals including lions, tigers, ligers, cougars, and snow leopards, kept the animals in pens within a compound enclosed by a six-foot perimeter fence, which he had built after an inspector's suggestion. The next year, the Department issued an internal memorandum stating that dangerous animals had to be inside a perimeter fence at least eight feet high. Beginning in 1990, inspectors cited Hoctor for violating the housing regulation on the ground that he lacked the required eight-foot perimeter fence, and the Department sanctioned him.

Issue

Whether the Department of Agriculture's requirement that dangerous animals be enclosed by a perimeter fence at least eight feet high was a valid interpretive rule exempt from APA notice-and-comment procedures, or instead a legislative rule invalid because it was adopted without those procedures.

Rule

Under APA § 553, notice and comment are required for legislative rules but not for interpretive rules. A rule is legislative, not interpretive, if it is intended to bind and cannot be derived from the statute or regulation by interpretation, but instead embodies an arbitrary choice among permissible methods of implementation; such a rule requires notice-and-comment rulemaking even if it is consistent with the underlying standard.

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The Federal Storage Safety Bureau has a duly promulgated regulation requiring chemical warehouses to be built with materials and design features sufficient to prevent leaks and unauthorized release. Without notice and comment, the bureau sends inspectors a binding directive that every warehouse storing corrosives in Cleveland, Ohio, and elsewhere must have an outer concrete wall exactly 14 inches thick.

If a warehouse operator is fined solely for violating the 14-inch requirement, what is the best argument against the fine?

Explanation. A binding rule that cannot be derived from an existing regulation by a process reasonably described as interpretation is legislative. Here, the general rule requires sufficient design to prevent leaks, but choosing exactly 14 inches is a flat numerical choice among plausible alternatives. Consistency with the underlying standard is not enough; if the agency is making an arbitrary implementation choice and intends the rule to bind, notice and comment are required. (Derived from Hoctor v. United States Department of Agriculture (n.d.).)