## Facts

- Patrick D. Hoctor, a licensed animal dealer, kept lions, tigers, cougars, and leopards on a farm in Indiana.
- Under the Animal Welfare Act, USDA promulgated a notice-and-comment regulation requiring animal housing to be “structurally sound” and adequate to “contain the animals,” but it did not specify fence height.
- USDA later issued an internal memorandum instructing inspectors that “dangerous animals” must be enclosed by a perimeter fence at least eight feet high, without notice-and-comment rulemaking.
- Hoctor maintained a six-foot perimeter fence and was repeatedly cited by USDA inspectors for failing to meet the eight-foot requirement.
- USDA enforcement proceedings resulted in sanctions against Hoctor, including a civil penalty and suspension, in part for violating the eight-foot fence requirement.
- Hoctor petitioned for judicial review, arguing the eight-foot requirement was an invalid legislative rule adopted without APA procedures.

## Issues

1. Whether USDA’s eight-foot perimeter fence requirement was an interpretive rule exempt from APA notice-and-comment under 5 U.S.C. § 553(b)(A).
2. Whether the eight-foot requirement instead created new binding obligations (a legislative rule) and was therefore unenforceable absent notice-and-comment rulemaking.
3. Whether deference to an agency’s interpretation of its own regulation can validate an internally issued, specific quantitative standard not derived from the regulation’s text.

## Decision

- The Seventh Circuit held that the eight-foot perimeter fence requirement was a legislative rule, not a valid interpretive rule.
- The court concluded the eight-foot standard could not be derived by interpretation from the existing structural-strength regulation’s general language.
- Because USDA did not use notice-and-comment procedures, the eight-foot rule was invalid and could not be enforced against Hoctor.
- The court set aside the sanction to the extent it rested on the eight-foot fence requirement and remanded for further proceedings.

## Legal Principles

- A rule that imposes new, binding legal obligations is a legislative rule and generally must be adopted through APA notice-and-comment procedures.
- An interpretive rule may clarify or explain existing statutory or regulatory text, but it cannot supply a new, specific substantive standard not reasonably inferable from that text.
- Precise quantitative requirements (e.g., selecting a specific fence height) are typically policy line-drawing that must be adopted through rulemaking rather than internal guidance.
- Deference to an agency’s interpretation of its own regulation does not apply when the agency is effectively making new law rather than interpreting ambiguous regulatory language.
- APA notice-and-comment serves to test the factual and policy basis for proposed rules and to build an administrative record suitable for judicial review.

## Conclusion

The court ruled that USDA could not enforce an internally announced eight-foot perimeter fence requirement against an animal dealer because the mandate functioned as a legislative rule and was invalid without notice-and-comment rulemaking under the APA.


Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165 (7th Cir. 1996)