USDA and DOJ Announce Top Priorities for Civil Enforcement of the Animal Welfare Act

By Michelle C. Pardo and Brian Pandya

Last month, the Department of Justice Environmental and Natural Resources Division (ENRD), the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) and the USDA Office of General Counsel (OGC) announced the issuance of a Memorandum of Understanding (MOU) on civil judicial enforcement of the Animal Welfare Act (AWA).  What does this mean for USDA licensees and registrants?  Our Q&A breaks it down.

What is the purpose of an MOU?

Government agencies with overlapping enforcement equities will often enter into MOUs to outline how they will interact and coordinate on enforcement actions.  The MOU procedures assist the agencies to prospectively prepare for and coordinate potential civil enforcement actions.  This MOU establishes a framework for notification, consultation and coordination among APHIS, USDA’s General Counsel, and ENRD to enforce the AWA. The MOU’s framework formalizes procedures for regular meetings, coordination on enforcement referrals, information sharing and additional training for employees.  The MOU also memorializes the joint practices of these agencies over the past few years.

Is a civil judicial action different than an USDA administrative enforcement action?

Yes.  The federal government has different means to enforce the Animal Welfare Act.  Most licensees are familiar with APHIS’s most common means to enforce the AWA – through inspections and noncompliance citations, which require corrective actions.  APHIS can decide to issue an official warning or a settlement agreement, which could include a monetary penalty or other sanction and is quicker and less costly than litigation.  APHIS can also decide to pursue formal, legal prosecution through the administrative law process, which involves an administrative law judge, hearing, and a mechanism for appeal.  Through this process, APHIS has authority to confiscate animals, suspend licenses, revoke licenses, issue cease and desist orders, and impose civil penalties.  Lastly, APHIS also refers cases to DOJ for judicial actions in federal district courts to enjoin or restrain violations of the AWA and to enforce unpaid civil penalties imposed through the administrative process.  The MOU deals with these referrals for civil federal court actions.

Does the MOU list any enforcement priorities?

Yes.  The MOU states that the USDA and ENRD are focused on “the matters that are most likely to make a positive impact on the welfare of animals” and otherwise further the AWA’s purposes.  MOU at 4.  The enforcement priorities also target suspected violations of the Lacey Act or Endangered Species Act.  The agencies’ coordination is intended to focus on “the most egregious violators” based on the following criteria:

  • Licensees who have been cited multiple times under 9 C.F.R. § 2.4 for interference with APHIS officials establishing a pattern or practice of interference;
  • Licensees who have received four or more inspection reports within the past 18 months containing serious noncompliant items, including direct and/or critical noncompliant items;
  • Licensees who have had animals confiscated by APHIS or who have one or more animals that APHIS is considering confiscating;
  • Licensees to whom APHIS is considering issuing a 21-day suspension or who have recently completed a 21-day suspension and there is still APHIS concern about the health and welfare of the animals;
  • Licensees who have repeatedly denied APHIS inspectors access to inspect the facility;
  • Unlicensed exhibitors who are chronically engaging in licensed activity, or who are circumventing an administrative cease and desist order;
  • Licensees who APHIS believes may be engaging in possible Lacey Act or Endangered Species Act violations;
  • Any facility or entity that APHIS/OGC anticipates being the subject of a referral to ENRD; and
  • Other instances where a licensee is engaging in neglect, such as instances of missing animals, suspected illegal sales, or provision by licensees of serious false information or statements.

MOU at 4-5.

Does the MOU contain an exclusive list of issues and situations that may be identified for judicial enforcement by ENRD?  In other words, if my conduct does not fall into the above-listed enforcement priorities, am I not at risk for civil enforcement?

No.  As stated in the MOU, these criteria are intended as a guide and “nothing precludes USDA and ENRD from discussing and considering alleged violations that do not meet this criteria.”  MOU at 5.  By the same token, meeting one or more of the criteria does not mean that APHIS will refer such a case to ENRD or that ENRD will bring a case for any such referral.

If USDA refers a matter to ENRD, is it always the case that a civil action will be initiated in federal court?

No.  ENRD had discretion as to whether it will bring a civil action in federal court.  If ENRD declines to file a civil enforcement action based on APHIS/OGC’s referral, ENRD will notify and consult with APHIS/OGC about its decision.

As a licensee, can I cite to the MOU as evidence of what the various agencies should and should not be enforcing through either the administrative or judicial processes?

No.  The MOU does not create any substantive or procedural rights and cannot be relied upon or used as evidence in a legal or administrative proceeding.  Nor can it be used as evidence of the proper interpretation of the AWA.

The administrative enforcement process within APHIS is confusing to me.  Are there any resources to explain the process and the different enforcement mechanisms?

Yes.  Visit APHIS webpage:  Administrative enforcement actions are also published on USDA’s website, where licensees can review the types of scenarios that have been selected for USDA enforcement.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress