AGENCY RULEMAKING PROCESS
Federal regulation, like taxing and spending, is one of the basic tools of government used to
implement public policy. The development and framing of a rule is part of that policy making process. The crucial intermediate process of rulemaking stands between the enactment of a law by Congress and the realization of the goals that both Congress and the people it represents seek to achieve by that law. Regulations generally start with an act of Congress, and are one of the means through which statutes are implemented and specific requirements are established. The costs and benefits associated with all federal regulations have been a subject of great controversy. An agency must not take action that goes beyond its statutory authority or violates the Constitution.
WHAT GIVES AGENCIES THE AUTHORITY TO ISSUE REGULATIONS?
Learn more about the Rulemaking process from the Guide to the Rulemaking Process prepared by the Office of the Federal Register
ANIMAL RIGHTS GROUPS AND THE RULEMAKING PROCESS
Animal rights and pseudo environmental groups often submit petitions to various agencies to initiate the rulemaking process in order to advance their agendas. These groups have found it is easier working through the rulemaking process than advocating for federal legislation as it is generally very difficult to get a bill passed by Congress. Areas for petitions include wildlife management, animal husbandry practices, transport, slaughter, labeling/marketing of animal products, exotic animal ownership, and use of animals in research.
SIGNIFICANT RULE MAKING PETITIONS
US Fish and Wildlife Service Docket No. FWS-R8-ES-2015-0049-0003 Evaluation of Petition to List North American Wild Horses as Endangered or Threatened
The Cloud Foundation and the Friends of Animals filed a petition June 2014 in support of including the horses in the Endangered Species Act requesting wild horses be considered a Distinct Population Segment (DPS). Petitioners argued that wild horses are markedly separated from other horse populations by ecological, physiological, and behavioral factors. Petitioners maintained that wild horses are better suited for living in the wild than domestic horses because they can survive longer without water, have different hooves, and have a more highly refined flight reaction. Following a 90-day review of the petition and sources provided, USFWS found that the petition did not present substantial information that the population of North American wild horse may be discrete (markedly separated from other populations of the same taxon) under the DPS policy. Therefore, wild horses are not a listable entity under the ESA. Docket with petition and ruling at Federal Register.
HSUS Petition to Ban Lead Ammunition on Public Lands
June 2014, HSUS filed a fifty-page petition with the Department of Interior (DOI) requesting that the DOI promulgate a regulation stating: "The use of nontoxic ammunition shall be required when discharging any firearm on any land owned, managed, administered, or otherwise controlled by the National Park Service or the U.S. Fish and Wildlife Service." Lands managed by DOI and its bureaus NPS and FWS comprise approximately one-fifth of the total land area of the United States. Among the other anti-hunting wildlife organizations that signed onto the petition were The Fund for Animals, Defenders of Wildlife, the Natural Resources Defense Council, the International Wildlife Rehabilitation Council, the South Florida Wildlife Center, and the National Wolfwatcher Coalition.
July 14, 2014 the Congressional Sportsmen’s Foundation, Ducks Unlimited, Masters of Foxhounds Association, National Rifle Association, National Shooting Sports Foundation, Quail Forever, US Sportsmen’s Alliance, and others responded with a joint letter to Secretary of the Interior Sally Jewell.. January 2015 The Wildlife and Hunting Heritage Conservation Council sent a letter to Secretary Jewell requesting the HSUS petition be denied. To date no response has been issued by the Department of the Interior.
APHIS Docket ID: APHIS-2011-0003, Animal Welfare; Retail Pet Stores and Licensing Exemptions Final Rule.
The proposed rule was posted May 16, 2012. APHIS published the Final Rule September 18, 2013 which revises the definition of "retail pet store" and brings historically exempt retail pet sellers under the Animal Welfare Act (AWA) licensing and regulation. APHIS stated the new rule completes a 2010 Office of the Inspector General (OIG) audit recommendation. In May, 2010, APHIS received severe criticism from the OIG regarding lax enforcement of currently licensed dog breeders in the report, "Inspections of Problematic Dealers". Included among recommendations for improvements at APHIS was one recommendation by OIG that the department seek Congressional legislation to regulate dog breeders selling via the Internet. APHIS later determined they had authority to regulate Internet sales without Congressional legislation. In 2011 Senators Richard Durbin and David Vitter wrote to USDA Secretary Tom Vilsack urging the agency to move forward "without requiring additional congressional action". APHIS also stated that the rule represented an appropriate response to the We the People petition submitted by HSUS to the White House demanding regulation. See SAOVA page, APHIS Rulemaking for APHIS documentation, commentary, transcripts, and updates.
APHIS Docket No. APHIS-2009-0053 Proposed Rule: Importation Of Live Dogs
In 2011 APHIS initiated a rulemaking process to implement an amendment to the Animal Welfare Act (AWA). The Food, Conservation, and Energy Act of 2008 added a new section to the AWA to restrict the importation of certain live dogs. Consistent with this amendment, this proposed rule would, with certain limited exceptions, prohibit the importation of dogs from any part of the world into the continental United States or Hawaii for purposes of resale, research, or veterinary treatment, unless the dogs are in good health, have received all necessary vaccinations, and are at least 6 months of age. The proposed rule is necessary to implement the amendment to the AWA. The Final Rule became effective November 17, 2014. Docket, rule, and comments at Federal Register
U.S. Department of Transportation (USDOT) Docket No. DOT-OST-2010-0211 Reporting by Air Carriers Regarding Incidents Involving Animals During Air Transport
In August 2010, the Department received a petition for rulemaking from the Animal Legal Defense Fund (ALDF) requiring the reporting of loss, injury, or death of animals in air transport be revised to require airlines to report any such incident involving any animal they carry. ALDF maintained that whether an animal is shipped as a pet or as an item of commerce has no bearing on its ability to suffer and therefore the reporting must be amended. USDOT issued a final rule to amend the requirement for air carriers to report incidents during air transport. The rule also expands the definition of animal to include all cats and dogs transported by covered carriers, regardless of whether the cat or dog is transported as a pet by its owner or as part of a commercial shipment shipped by a breeder, trainer, or handler. The ALDF petition for reporting of all species was supported by the the Humane Society Veterinary Medical Association and by Senators Richard Durbin, Robert Menendez, and Joe Lieberman.
This rule became effective January 1, 2015. USDOT declined to expand the definition of animal to cover all species of animals stating, "We believe it would be unduly burdensome to require covered carriers to report the death, loss, or injury of all species of animals because there potentially could be thousands of individual animals such as fish, rodents, and insects that are transported by air carriers in a single commercial shipment." Docket DOT-OST2010-2011 at Federal Register
APHIS. Docket No. APHIS-2012-0107-0002 Prohibit Public Contact with Big Cats, Bears, and Nonhuman Primates
January 2013 HSUS, World Wildlife Fund, Global Federation of Animal Sanctuaries, Born Free, International Fund for Animal Welfare, Big Cat Rescue, and the Detroit Zoological Society petitioned USDA/APHIS to amend animal handling regulations to prohibit members of the public from coming into direct contact with big cats, bears, and nonhuman primates. The proposed rule was posted August 2013 and public comments accepted. Docket, proposed rule, and comments at Federal Register.
FDA. Docket FDA-2006-P-03381 Revise the Labeling Requirements for Eggs Sold in the U.S.
Animal Legal Defense Fund; Compassion Over Killing; and Penn Law Animal Law Project, University of PA Law School, filed a citizens petition September 21, 2010 requesting new labeling of shell eggs sold in the U.S. Petitioners claim that current labeling fails to reveal to consumers certain material facts that substantially influence their purchasing decisions. Petitioners further requested that FDA require shell eggs to bear one of three labels: Free Range Eggs, Cage Free Eggs, Eggs From Caged Hens and provided descriptions of production conditions that would be associated with each term. September 22, 2013 FDA posted a Denial of petition.
US Fish and Wildlife Service. Docket No. FWS-R9-ES-2010-0086-6541 Upgrade Captive Chimpanzees from Threatened to Endangered Status
HSUS, Jane Goodall Institute, Wildlife Conservation Society, New England Anti-Vivisection Society, American Association of Zoological Parks and Aquariums (AZA), and the Fund for Animals petitioned US Fish and Wildlife Service (FWS) in March 2010 to upgrade all captive chimpanzees in the U.S. to endangered status. Petitioners argue that the FWS split-listing (wild chimpanzees as endangered and captive chimpanzees as threatened) denies the captive chimps legal protection, allows interstate commerce and take, and has promoted their exploitation as pets, for entertainment, and biomedical research purposes. They further claim the split-listing by FWS has contributed to the decline of wild populations. FWS issued the a proposed rule June 2013. We propose to list all chimpanzees (Pan troglodytes) as endangered under the Endangered Species Act of 1973, as amended (Act). "We are taking this action in response to a petition to list the entire species, whether in the wild or in captivity, as endangered under the Act. This proposal constitutes our 12-month finding on the petition and announces our finding that listing all chimpanzees as endangered is warranted. This document also serves as our 5-year review of the species. If we finalize this rule as proposed, we would eliminate the separate classification of captive and wild chimpanzees under the Act and extend the Act's protections to captive chimpanzees in the United States. In addition, we propose to amend the special rule for primates to remove chimpanzees from the rule." Comment period is closed and 209,752 comments were received. Opposition comment from National Association for Biomedical Research Rule and other documents at Federal Register Docket FWS-R9-ES-2010-0086-6541
June 2015 FWS announced a final rule to classify all chimpanzees, both wild and captive, as endangered under the Endangered Species Act (ESA). The final rule will go into effect on September 14, 2015. Under the new designation anyone working with captive chimps in the US must apply for a permit from FWS. Organizations that want to continue working with chimpanzees will have to document that the work enhances the survival of the species and benefits chimps in the wild. That could include research that boosts habitat restoration or contributes to improved management. If anyone is actively engaged in chimpanzee research, they must apply for a permit. According to FWS Director Dan Ashe, some biomedical research with chimps may be allowed to continue if it is critical for understanding human disease.
In a press release The National Association for Biomedical Research stated, "The full impact the new FWS ruling will have on biomedical research is unclear. However, it would be unfortunate, even grave, should an infectious disease outbreak occur where human lives are at stake and a chimpanzee model could expedite development of life-saving medicines."
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