How do federal regulations get passed? Are they law? Boy, have I heard these questions a lot since the United States Department of Agriculture (USDA) started pushing National Animal Identification (NAIS). So let’s examine what rules are, how they get written and become regulations, and how USDA has perverted the process to the betterment of itself and other NAIS proponents. I warn you, this stinks like a chicken coop that hasn’t been cleaned in ages, but in the end you’ll know more about how your government works, making you more effective at fighting government actions that affect your right to farm.

Who Makes the Law?
Most of us heard in elementary school, “the legislature passes laws, the executive enforces them, and the courts interpret them.” That’s correct, except for one missing piece—regulations written by federal and state agencies have the force of law. You know these agencies—environmental protection agencies, departments of agriculture, tax agencies, and the like.

First Congress or a state legislature passes a law, or statute, and requires some agency to carry it out. If the agency is given a general set of instructions, such as, “protect the health and welfare of livestock animals in this state,” specific guidance must also be provided as to what the agency must do. A statute that is too broad or vague may be declared unconstitutional. So every statute should state the means for achieving its goal, such as, in this example, quarantine or testing.

The statute must also state, continuing with this example, that “the Department of Agriculture may create regulations to carry out the purposes of this statute.” For federal statutes, which are published in the United States Code, the corresponding regulations are published in the Code of Federal Regulations. Each of these sets of books tells you where to look in the other set for the matching statute or regulation.

Regulations written by an agency are published publicly, beginning as so-called interim rules to give the public an opportunity to comment. Then the agency writes its final rule. When the agency is federal, the interim and final rules are published in the Federal Register.

The Federal Register contains all interim and final rules issued, and any other reports or announcements Congress says must be published there. This book is published several times a week and is frightfully dry reading. The only people who read it are those whose job it is to watch the federal government, or who are looking for particular issues.

When a final rule is published, it states what part of the Code of Federal Regulations it amends, telling you where the final regulation will be found. This regulation is in exactly the same form it’s in when published as part of the final rule. The difference is that the final rule has introductory information, such as when the interim rule was published and how long the comment period was. It also summarizes the comments the agency received about the rule. In short, it lets you see into the minds of the bureaucrats involved.

• Animal ID Number (AIN)
• How Bad Rules Happen
• Use This Knowledge

Karin Bergener of Ravenna, Ohio, is an attorney and co-founder of Liberty Ark Coalition. This article appeared in the Autumn 2007 issue of Rural Heritage.