Attorney claims NC did not follow rulemaking process in chicken registration mandate

In an attempt to gain control over a possible avian influenza outbreak, the N.C. Department of Agriculture is requiring that chicken owners register their birds with the state, regardless of the size of their flock. Since March, the disease has been linked to the death of 48 million birds across 15 states, as reported by the Associated Press. Commercial egg prices have also risen throughout the country.

Not all chicken keepers are happy about the registration mandate, with a recently formed Facebook group, NO to NC Chicken Registration, calling the requirement “a unilateral decree from [N.C. Commissioner of Agriculture] Steve Troxler” and adding, “Who controls the food supply, controls the people.”

The group posted a statement from David Williams, who reports to be a licensed N.C. attorney, which questions the legality of the registration mandate claiming that it did not follow North Carolina’s Administrative Procedure Act. According to the groups’ Facebook page, Williams is volunteering his time “to aid us in obtaining answers.”

“In a self-governing system, we should be very reticent to employ emergency powers that deprive folks of personal liberty and property rights,” Williams writes in his statement. “We certainly shouldn’t ever hide the exercise of those emergency powers behind an opaque wall of bureaucracy, nor require the efforts of an investigatory attorney to uncover it.”

The full release is below.

Press Release

From David Williams

On July 22nd, 2015, the North Carolina Department of Agriculture and Consumer Services released on its web site a notice that all North Carolina poultry owners, regardless of flock size, are now required to register through the NC Farm ID program. The release indicated that this measure is a precaution “to help North Carolina prepare for a possible introduction of highly pathogenic avian influenza.” Additionally, the release indicated that an online signup form would be made available after August 1st. The release does not give the effective date, nor does it list the penalties for noncompliance. The release in its entirety can be found here.

I am a licensed North Carolina attorney, and figured that such a mandate likely went through a formal rulemaking process. Administrative agencies generally can’t just issue edicts that have the power to compel. Where new administrative rules are created, whether federal or state, those rules must be authorized by statute, and must generally go through a set of rulemaking procedures that involve public notice, a period of public comment, often a fiscal note and then perhaps final rulemaking. Proposed federal regulations are published in the Federal Register, and proposed state regulations here are published in the NC Register.

In North Carolina, this rulemaking process is largely defined by the Administrative Procedure Act. Absent some exceptions in § 150B-1 that don’t apply in this case, administrative agencies must follow this formal rulemaking of public notice, comment, fiscal notation and usually some revision before promulgating a new rule.

However, as I delved into the rulemaking history of this mandate, I found to my surprise the total absence of any history at all. I found no NCAC title #, no citation to authorities, no mention of any kind in the North Carolina Register. I found no evidence whatsover that this sweeping mandate had gone through any rulemaking process at all. How, then, did we get such a sweeping agency rule that purports to compel all NC poultry owners to submit to premises registration?

I got my answer today from the NC Department of Agriculture. In short, the normal APA rulemaking procedures have been bypassed, and the purported authority for this mandate is based instead on emergency powers that arise from NCGS § 106-399.4. Imminent threat of contagious animal disease; emergency measures and procedures.

This statute authorizing the exercise of emergency powers requires a determination from the State Veterinarian that there is an imminent threat of a contagious animal disease within the state. Once that determination is made, the exercise of emergency powers must be approved by the Governor. In the case of this mandate, the determination letter was made July 1st and received the Governor’s approval July 2nd. There was also a prior exercise of emergency power under NCGS § 106 back on June 10th regarding animal transport controls that received the Governor’s same-day approval. In communications with the Department of Agriculture today, I learned also that the effective date of these mandates is the date of the Governor’s approval – well before any public notice was made. Additionally, I have been informed that no penalties for noncompliance have been established at this time. I am told the hope within the Department is for “voluntary compliance.”

If you keep backyard poultry where do you go from here? Well for starters, a mandate without noncompliance penalties is by definition a mandate that doesn’t punish noncompliance. Do with that what you will. Additionally, I have also been exploring legal and equitable options available through a court of law.

In a self-governing system, we should be very reticent to employ emergency powers that deprive folks of personal liberty and property rights. We certainly shouldn’t ever hide the exercise of those emergency powers behind an opaque wall of bureaucracy, nor require the efforts of an investigatory attorney to uncover it.

In the spirit of transparency and open records and open government, I attach the letters authorizing the exercise of these latest emergency powers.

David Williams, Esq.
Raleigh, NC