USDA And DOJ Announce Top Priorities For Civil Enforcement Of The Animal Welfare Act – Environmental Law

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: https://www.aphis.usda.gov/awa/enforcement.
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.

Disclaimer: This Alert has been
prepared and published for informational purposes only and is not
offered, nor should be construed, as legal advice. For more
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