In a prior blog I discussed proposed amendments to Oregon’s animal cruelty statute that would provide for statutory standing to any plaintiff who files a complaint against any animal owner for alleged violations of the state’s animal cruelty statute.  Below, are summaries of several Oregon cases litigated pursuant to the current or in effect at that time.

In State v. Branstetter, 45 P.3d 137 (Or. Ct. App. 2002) review denied 54 P.3d 1042, 334 Or. 632, a horse and donkey owner was charged with 12 counts of animal neglect in the first degree, which was a Class A misdemeanor.  Id., at 138 (citing ORS 167.330).  Defendants’ animals were seized and were cared for by the pioneer Humane society of Umatilla County, who filed a petition for the animals before Defendant’s trial.  The Court ordered the forfeiture of animals if Defendant did not post a $2,700 bond within 72 hours, which he failed to do.

After being acquitted on all counts, Defendant filed an appeal with the following issue.

“Was defendant denied constitutional due process and right to a remedy as a consequence of the forfeiture statute that did not provide for setting aside the forfeiture(s) subsequent to the acquittal(s)?”  Id.

The Court denied the appeal, “reject[ing] defendant’s due process and remedies clause arguments without discussion.”  The Court also rejected Defendant’s that “any forfeiture to cover the costs of his animals’ care during the pendency of the criminal prosecution violates the excessive fines provisions of Article I, section 16, of the Oregon Constitution, and the Eighth Amendment to the United States Constitution.”  Id., at 139.

In Stirton v. Trump, 121 P.3d 714 (Or. Ct. App. 2005), a dog owner, charged with 31 counts of animal neglect in the second degree and the county impounded the 31 dogs, and a justice of the peace ordered forfeiture of the dogs following a petition filed by the impounding county.  The County Circuit Court, hearing a petition for a writ of review filed by the Defendant over jurisdictional matters, entered judgment awarding the county the cost of boarding the 31 dogs and dismissing Defendant’s petition.

On appeal, the Court affirmed the trial court’s holding that the justice of the peace court had subject matter jurisdiction, but reversed the award, finding that the county was not a party to the petition.

In State v. Marsh, 66 P.3d 541 (Or. Ct. App. 2003), the Court limited the amount in restitution the defendant must pay to the care of providing for only the ten animals he was convicted of neglecting, and not for the 69 animals that were seized from his property.

In City of Lebanon v. Milburn (2017) 398 P.3d 486 (Or. Ct. App. 2017), the Court, on appeal, rejected the City’s argument that the forfeiture of Defendant’s dog in this case was irreversible, even after the Defendant had been acquitted of criminal charges of animal cruelty.  The Court’s holding in this case, is notable:

The issue on appeal turns on whether the circuit court erred in ordering the city to return defendant’s property upon acquittal after the municipal court had ordered the property forfeited under ORS 167.350 as part of defendant’s sentence.  A court is permitted to order forfeiture, but it is contingent upon a court having determined that defendant is guilty of the offense charged. ORS 167.350(1).  Necessarily, we have recognized that ‘[t]here can be no sentence, probation or other sanction after an acquittal’ . . . We have characterized a forfeiture that is part of sentencing under ORS 167.350 as a punitive forfeiture . . . In this case, although the forfeiture was authorized under ORS 167.350 as part of the sentence in municipal court, defendant cannot continue to be subject to a punitive sanction after she has been acquitted. An acquittal is an acquittal. That outcome necessarily implicates the forfeiture that is part of the judgment in municipal court . . . Because defendant was acquitted in the circuit court, property taken from her as a result of the municipal court judgment must be returned.  Id., at 487-488 (citations omitted).

Based on these cases, Oregon already has sufficient state laws to protect animals from owners who fail to care for them humanely, such that the proposed amendment discussed here, that would permit anyone, to file a civil suit against an animal owner because of public policy concerns, is unnecessary.  Such an amendment would lead to a flood of lawsuits filed by plaintiffs who object to the use of animals in agriculture, biomedical research, breeding and other animal-related businesses.

An untitled proposal to amend Oregon’s Animal Cruelty statute was posted by the Oregon Secretary of State on November 14, 2018 and is available on its website.

The proposed amendment does not appear to have been formally introduced as a bill in the Oregon legislature.  The amendments, if enacted would permit anyone to file a civil action “for the protection and humane treatment of animals.”  By anyone, as the amendment provides, “plaintiff shall include any person even if the person does not have any legal interest or possessory lights in an animal.”  As another Oregon court recently observed, the state legislature might determine that the state could permit an unrelated party to file a complaint against an animal’s owner based on public policy and concerns about the humane care of animals.  See Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) previously discussed here.

The amendment also provides for temporary restraining order or preliminary injunction upon the filing of a verified complaint, and if the plaintiff requests it and plaintiff’s agent could be permitted “unrestricted access to the premises where the animal is located to evaluate, monitor, and provide minimum care to the animal.”

And “if it appears on the face of the complaint that the condition giving rise to the violation of O.R.S. §167.305-390 requires the animal to be removed from the defendant, then it shall be proper for the court in the order or injunction to allow the plaintiff to take possession of the animal and provide minimum care.”

Keep in mind that this is all without any evidentiary hearing of any sort, but simply based on the face of the complaint, in a suit filed by someone who, until after the complaint was filed may have had possession or first-hand knowledge of the conditions in which the animal was housed or its physical status.

But the amendment does not stop there.

It would require a defendant to post bond within ten days after a court allowed a plaintiff to take possession of the animal, and if not posted, “the court shall deem the animal to have been abandoned.”

Yikes!!

Oregon already permits a peace officer, based on probable cause, to obtain a search warrant and enter the premises or vehicle where an animal, believed to being treated inhumanely, “to provide the animal with food, water and emergency medical treatment and may impound the animal.”  Or. Rev. Stat. Ann. § 167.345 (West).

Oregon defines “peace officer” as:

(a) A member of the Oregon State Police;

(b) A sheriff, constable, marshal, municipal police officer or reserve officer as defined in ORS 133.005, or a police officer commissioned by a university under ORS 352.121 or 353.125;

(c) An investigator of the Criminal Justice Division of the Department of Justice or investigator of a district attorney’s office;

(d) A humane special agent as defined in ORS 181A.345;

(e) A regulatory specialist exercising authority described in ORS 471.775 (2);

(f) An authorized tribal police officer as defined in ORS 181A.680; and

(g) Any other person designated by law as a peace officer.

Or. Rev. Stat. Ann. § 161.015 (West).

The entirety of the proposed amendment is available here.

A discussion of several cases decided on the basis of Oregon’s animal cruelty statute to follow shortly.

 

New therapies, advancements rely on dog research

Recently, Secretary of Veterans Affairs Robert Wilkie did something rarely seen in Washington, D.C., these days. He told the truth despite pressure from special interest groups to do otherwise. Mr. Wilkie explained that, like many other Americans, he is a dog lover. However, he also supports health studies in a limited number of canines to develop new therapies aimed at helping American veterans injured on the battlefield.

Animal research has improved the health of humans and animals alike through the development of countless medications and therapies. And while most research occurs in rodents, an incredibly small percentage of these breakthroughs require dogs. While speaking at the National Press Club, Mr. Wilkie highlighted past major advancements involving canines, including the heart pacemaker and a treatment for cardiac arrhythmias. Nowadays, dogs are helping us battle various forms of cancer. In addition, new therapies developed in dogs with a form of muscular dystrophy are now being tested in human patients.

Activists have been misleading Americans about animal studies for decades, falsely claiming they are no longer necessary. However, in many cases, there are simply no alternatives. You can’t model complex biological systems if you do not fully understand them.

It may be easy for some — including the PG editorial board — to accept animal rights fiction as fact (Nov. 17 editorial, “Put Him on a Leash: Dog Testing by Government is Wrong”). Thankfully, Mr. Wilkie did not make this mistake. He stood up for good, ethical science that benefits both veterans and animals. For that, he should be applauded, not criticized.

Paula Clifford
Washington, D.C.

The writer is the executive director of Americans for Medical Progress.

Clinical trials are commonly used during the development of drugs studied for approval by FDA for the use in animals.  Similar use in veterinary medicine has been increasing, but there are a number of interesting issues not considered in human clinical trials, where the individual involved in such trials is able to provide consent for inclusion in the trial.  Clearly, the animals that may be subject to such studies, cannot provide specific consent—their owner would have to do so on their behalf.  Those advocating for a change in status of animals as “property” to “persons” would be expected to object to such clinical trials, even if they benefit animals and people and help save their lives.

This issue was critically analyzed by veterinarians analyzing whether clinical veterinary studies must be reviewed by institutional animal care and use committees pursuant the Animal Welfare Act; the Office of Laboratory Animal Welfare for those studies funded by NIH; and/or reviewed and approved by a Veterinary Clinical Studies Committee established by a research entity, in a JAVMA published study, “Institutional animal care and use committee review of clinical studies.”

The study found

Determining whether activities conducted under the auspices of a clinical study are regulated by the USDA or OLAW, and thus require IACUC oversight, is not always a clear and simple issue. Institutions should develop their own guidance on how the IACUC oversees-or does not oversee-clinical trials.

Whether and to the extent certain clinical trials required review and approval by the IACUC pursuant to the Animal Welfare Act and/or OLAW requirements was dependent on whether the studying entities purchased the animals involved in the clinical trial and whether the proposed procedures would be required for the animal’s care, or were additional procedures only required for the purposes of the clinical trial.

The article presents 6 examples to help determine when USDA or OLAW oversight would be required.

Clearly, clinical trials, as utilized in human medicine, provide critical data related to the final approval of drugs and medical devices that will help prevent, diagnose and/or treat animals affected with life-altering diseases and conditions.

The AVMA is proposing an updated “Model Veterinary Practice Act” to its House of Delegates in the near future.  Included in the draft, which is not legally binding by any state unless specifically incorporated into the state laws, are issues involving the provision of veterinary care via telephonic or other electronic means.  As reported by AVMA in its JAVMA Nov. 1, 2018 publication,

The AVMA Model Veterinary Practice Act continues to state that veterinarian-client-patient relationship ‘cannot be established soled by telephonic or other electronic means’ . . .

As decided in Hines v. Alldredge, 783 F.3d 197 (5th Cir. 2015), “the requirement that veterinary care be provided only after the veterinarian has seen the animal, at a minimum, rational: it is reasonable to conclude that the quality of care will be higher, and the risk of misdiagnosis and improper treatment lower, if the veterinarian physically examines the animal in question before treating it.”  At least in Texas, the requirement for in person examinations by veterinarians of their patients must be conducted before diagnosis and treatment ensues.

Other issues included in the AVMA’s model act include:

  • Permitting a veterinarian to provide care to an animal during an emergency in the absence of a valid VCPR;
  • Incorporation of federal laws, including definitions and provisions of FDA’s Veterinary Feed Directive;
  • Rejection of a farrier exemption;
  • Discussion of the use of the term “veterinary nurse” and
  • The ability of lay personnel to provide veterinary massage services.

The model act will be presented to the AVMA’s House of Delegates for a vote this January.  Even if adopted, the model act is not legally binding, and its use will be individually determined by each state’s veterinary examining board.

Interestingly, in the same JAVMA publication, the results of a study of “Owner satisfaction with use of videoconferencing for recheck examinations following routine surgical sterilization in dogs” was reported:

Owners were equally satisfied with recheck examinations performed by videoconference and in-clinic appointments. Owners of dogs in the telemedicine group indicated that their dogs were less afraid during the virtual appointment, compared with what was typical for them during in-clinic appointments, but the difference was not statistically significant. Most owners who completed a postsurgical recheck  examination by videoconferencing preferred this method for similar appointments in the future.

The fact is, telemedicine has been utilized by veterinarians since telephones have been available.  Clients calling in after-hours have consulted with veterinarians across the country who have provided advice and direction when immediate in person examination was not deemed to be necessary, based on the information provided by those clients.

With the increasing deficiency of veterinarians available to service certain rural animal producers and owners, it seems inconceivable that such remote, digital provision of veterinary services would not be permitted.

The Food Animal Residue Avoidance Databank (FARAD) recently provided guidance to small ruminant producers and their veterinarians in an article titled “Extralabel drug use (ELDU) in small ruminants” in JAVMA, Vol 253, No. 8, Oct. 15, 2018, pp 1001-1009.

FARAD is a university-based national program that serves as the primary source for scientifically-based recommendations regarding safe withdrawal intervals of drugs and chemicals in food-producing animals. As such, FARAD is a key resource for protection of our nation’s food supply, including meat, milk and eggs, against accidental contamination of animal-derived foods with violative residues of drugs, pesticides or other agents that could compromise food safety.”

FARAD regularly provides guidance to the food animal producing industry and veterinarians regarding “the use of therapeutic drugs, pesticides and other agents that improve overall animal health and promote safe, efficient and humane production practices.”

The purpose of its latest digest, as stated, “was to provide US veterinarians guidance regarding ELDU in small ruminants. The lack of FDA-approved drugs for sheep and goats frequently necessitates ELDU in those species. When the FDA approves a drug for use in a particular species, it establishes a tolerance or that drug in the various tissues or products (eg, milk or eggs) of that species that might be consumed by people. When a drug not labeled for use in a small ruminant is administered in an extralabel manner, there is a zero tolerance for residues of the parent drug or its metabolites in the edible tissues or products of treated animals, and detection of the parent drug or metabolites in any product marketed for human consumption is considered a violation and subject to regulatory action. Given the lack of tolerance and pharmacokinetic and tissue depletion data for many drugs administered in an extralabel manner to small ruminants, extended meat and milk WDIs are generally required to ensure that drug residues are undetectable. Veterinarians need to be cognizant of the requirements for legal ELDU in food-animal species to safeguard the human food supply while continuing to promote the health and welfare of small ruminants.”

As a former owner of a veterinary large animal practice in which 50% of my patients were small ruminants (goats, sheep, alpaca and llama), it was imperative to be able to prescribe or administer drugs in an extralabel manner to provide humane care and prevent animal suffering.

Extralabel use means actual use or intended use of a drug in an animal in a manner that is not in accordance with the approved labeling. This includes, but is not limited to, use in species not listed in the labeling, use for indications (disease or other conditions) not listed in the labeling, use at dosage levels, frequencies, or routes of administration other than those stated in the labeling, and deviation from the labeled withdrawal time based on these different uses.  21 CFR 530.3.

Some of these uses have included medications added to commercial feeds, that are now governed under the Veterinary Feed Directive that FDA enforces for use in major, but not minor species.

According to guidance from FDA, “many commercial medical feeds that require a VFD are not approved for use in minor species,” defined by FDA as all species other than cattle, horses, swine, chickens, turkeys, dogs, and cats.  Compliance Policy Guide Sec. 615.115 Extralabel Use of Medicated Feeds for Minor Species.  A veterinarian may consider ELDU of medicated feed in minor species if:

There are no approved treatment options available;

The health of the animals is threatened; and

Failure to treat the animals would result in suffering or death.

The veterinarian must provide a written recommendation that includes the medical rationale for ELDU of medicated feed.

Before a veterinarian can provide such professional guidance, a valid veterinarian-client-patient relationship (VCPR) must exist.  While state laws govern the practice of veterinary medicine, including such relationships, FDA has inserted itself in the equation by identifying which states do not require the elements of a VCPR that FDA considers sufficient for the purposes of enforcing its Veterinary Feed Directive and other federal laws.

These multilayered state and federal laws can be difficult for veterinarians and small ruminant producers to decipher—hence the necessity of FARAD and other agencies to provide more specific guidance.

In Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) the Court dismissed a complaint filed by the Animal Legal Defense Fund, for Justice, the Plaintiff, a quarter horse.  The Court held that an animal, including the equine Plaintiff, lacked the legal capacity to sue, pursuant to Oregon Rule of Civil Procedure (ORCP) §21(A)(4) and for failure to state facts sufficient to constitute a claim, pursuant to ORCP 21(A)(8).

The court finds that a non-human animal such as Justice lacks the legal status or qualifications

necessary for the assertion of legal rights and duties in a court of law . . . Justice is not the real party in interest. There are profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity that has the legal right to assert a claim in a court of law. Such a finding would likely lead to a flood of lawsuits whereby non-human animals could assert claims we now reserve just for humans and human creations such as business and other entities. Furthermore, non-human animals are incapable of accepting legal responsibilities.

The Court observed that an appellate court or the state legislature might determine that public policy regarding this issue should permit such legal actions from animals, perhaps opening the door for further uncertainty through an appeal or legislative action.

The Court declined to award attorneys’ fees and costs to the defendant that was dragged into this seemingly frivolous lawsuit.

This is not the first time—or likely the last—activist nonprofit organizations have filed lawsuits on behalf of animals, in attempts to elevate their status to those of humans.  The Nonhuman Rights Project, Inc. (NHRP) filed a number of failed attempts to apportion personhood rights to certain animals, The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 54 N.Y.S.3d 392, 394 (N.Y. App. Div. 2017), leave to appeal denied sub nom. The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Kiko v. Presti, 3 N.Y.S.3d 698 (N.Y. App. Div. 2015); The Nonhuman Rights Project, Inc., ex rel. Kiko v. Presti, 999 N.Y.S.2d 652 (App. Div. 2015); Article 70 of CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 16 N.Y.S.3d 898 (N.Y.  Sup. Ct. 2015); The Nonhuman Rights Project, Inc. v. Stanley, 2015 WL 1812988 (N.Y. Sup.); see also, Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004); Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018); Tilikum v Sea World Parks & Entertainment, 84 2 F.Supp.2d 1259 (S.D. Cal. 2012).

NHRP filed another petition, The Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. 17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017), seeking personhood rights through a writ of habeas corpus for three elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.  Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017, finding that the petitioner lacked standing under the “next friend” theory.  Id.

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [and holding that] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.

The Court also found the petition “wholly frivolous on its face in legal terms,” stating:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find.

Recently, the NHRP filed another writ of habeas corpus in Orleans County, New York, The Nonhuman Rights Project, Inc., on behalf of Happy v. Breheny, No. 18-45164 (N.Y. 2018) “demanding recognition of [an elephant named] Happy’s legal personhood and fundamental right to bodily liberty as well as her transfer to an elephant sanctuary.”  Happy has been housed at the Bronx Zoo since around 1977.  In the Memorandum of Law filed in support of its application, NHRP did not cite to the decision in R.W. Commerford & Sons, Inc.

Circuit Judge Smith’s concurring opinion in Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018) also discusses restrictions on “next friend” or “third party” standing, stating:

The limitations on the ‘next friend’ doctrine are driven by the recognition that ‘it was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves as next friends’ . . . Indeed, if there were no restrictions on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’

More to come on these latest legal proceedings and other continued attempts to change the legal status of nonhuman animals.

In a bulletin published on September 25, 2018, USDA announced “four overarching goals for advancing animal disease traceability to protect the long-term health, marketability and economic viability of the U.S. livestock industry.”

Advance the electronic sharing of data among federal and state animal health officials, veterinarians and industry; including sharing basic animal disease traceability data with the federal animal health events repository (AHER).

Use electronic ID tags for animals requiring individual identification in order to make the transmission of data more efficient;

Enhance the ability to track animals from birth to slaughter through a system that allows tracking data points to be connected; and

Elevate the discussion with States and industry to work toward a system where animal health certificates are electronically transmitted from private veterinarians to state animal health officials.

Animal disease traceability has been a long-term goal of state and federal officials, as well as farmers and ranchers interested in protecting their livestock from the spread of contagious, infectious diseases.

A State-Federal Working Group reviewed the existing program and potential future goals, the results of which are published in a Summary of Program Reviews and Proposed Directions, dated April 2018.

The working group expressed general concerns about, in part: (1) confidentiality and security of information systems; (2) producer liability based on disease transmission, and animal and human injury resulting from applying and reading identification tags; (3) cost; (4) lack of proportionality of scale for small compared to large producers; and (5) beef feeder cattle under versus over the age of 18 months; practicality of identifying livestock at birth premises; flexibility, among other issues.

There was particular concern over electronic ID (EID), related technology and costs:

  • “If radio frequency ID (RFID) is to be utilized, the establishment of standards, including one technology (low-frequency (LF) vs ultra-high frequency (UHF)) is critical. Most stakeholders supported a dual technology tag as an interim measure.
  • The infrastructure must be in place to support the transition to EID.
  • Cost remains the primary concern of producers and representatives from other sectors of the industry for both the reader infrastructure and tags; however, the use of EID would provide substantial savings due to the increased efficiency associated with the technology.
  • Availability and use of electronic forms, in particular, electronic ICVIs. Obtaining records electronically would decrease cost and improve the completeness and accuracy of the data. Additionally, retiring animal numbers at slaughter would be feasible, where it has been cost-prohibitive with visual-only tags.
  • A cost analysis on metal NUES tags to show the full cost of tags when working cattle to manually record ID numbers (labor, stress and shrink, injury, etc.), as well as their limitations relative to traceability, e.g., tag retirement, to more accurately illustrate the 14 costs of both visual-only and EID tags.
  • Proportionally higher implementation costs for smaller producers, who sell direct to consumers and believe their livestock are already highly traceable.”

USDA’s current goals build on its final rule adopted on January 9, 2013, “Traceability for Livestock Moving Interstate,” which requires cattle, bison, horses and other equine species, poultry, sheep and goats, swine, and captive cervids moving interstate to be officially identified and accompanied by an interstate certificate of veterinary inspection (ICVI) or other documentation, with limited exemptions.

The proposals from the Working, as published in the report, include:

  1. Maintain the policy that traceability regulations do not apply to interstate movements to a custom slaughter facility in accordance with Federal and State regulations for preparation of meat.
  2. Maintain the current population of livestock covered by the official ID requirements. The ADT rule will continue to include:
  • All dairy
  • Beef cattle > 18 months of age
  • All rodeo and exhibition cattle.
  1. Cattle should be identified to their birth premises , thus the official ID records must provide birth premises information for the animal. APHIS should revise Federal regulations to include interstate commerce and the appropriate authority – either USDA or State officials – should establish regulations that trigger official ID requirements at:
  • Change of ownership
  • First point of commingling
  • Interstate movement (may reflect no sale and no commingling).
  1. The United States must move toward an EID system for cattle with a target implementation date of January 1, 2023. A comprehensive plan is necessary to address the multitude of very complex issues related to the implementation of a fully integrated electronic system. A specialized industry-lead task force with government participation should develop the plan, with a focus on several key objectives (see report for specifics).
  2. APHIS and States must make the advancement of electronic records an immediate high priority. The enhancements recommended below would increase the ease of collecting data in a standardized format and subsequently provide access to accurate data in near real-time, greatly enhancing the effectiveness of U.S. traceability and disease control programs. (See report for specifics).
  3. Enhanced enforcement of existing regulations.
  4. APHIS should continue the efforts of the State/Federal Slaughter Plant Working Group to improve the rates of ID collection and correlation at slaughter.
  5. APHIS and States need to establish a partnership with industry that would enable utilization of private information systems for disease surveillance and response events. Ideally, establish a communication protocol between the private systems and an animal disease traceability portal that would allow producer data to be maintained in the private systems and made available to animal health officials only when needed for animal disease control and response. Producers would have the choice to maintain their data in a private or public system. APHIS and the States would continue to protect producer data held in their systems and use it only for disease response. (See report for additional details).
  6. Review and update existing exemptions for official identification requirements.
  7. Concerns about electronic ICVIs and other electronic movement records are a high priority . . . Stakeholders support consistent requirements; however, the State of destination should be responsible for determining the documents appropriate for collection and compliance of key traceability components for livestock arriving to that State.
  8. Address lack of uniformity of state importation regulations. 9 CFR Part 86 should provide the national standards for official ID and movement documentation. APHIS should continue revision of the regulations to increase standardization considering that eliminating various exemptions will lessen confusion and State differences.
  9. The working group feels there is value in considering a standard, or uniform, official eartag to increase awareness and understanding that it is unlawful to remove the tag. APHIS should conduct a study to determine the potential advantages and disadvantages of having one national ID eartag for cattle. The study should examine the merit a standardized tag might bring to ease of recognizing official tags and its effect on compliance. The study should also include cost comparisons of the use of numerous tag styles, sizes, etc. versus one standard, uniform tag. APHIS should review this information and, if having one uniform tag has significant advantages, publish the one tag concept for public comment through the Federal Register. The actual change, if pursued, would require rulemaking.
  10. The ability to maintain the identity of imported cattle is essential. As such, the working group recommends that APHIS allow the retagging of such animals with an official EID tag by revising the traceability regulation to define an “Import Tag” (with a specific range of AINs and tag color). For example, APHIS could reserve a range of 840 numbers starting with “8409” for use on these tags. To help distinguish “Import Tags” that have a panel component, the panel piece of the tag should include the text “Import”. This ID option would clearly identify animals tagged with an 840 Import Tag after importation to the United States; provide producers the option to use compatible EID technologies as preferred; and allows for re-tagging visual only tagged imported cattle with an 840 EID Import Tag (even if the visual only official tag of the exporting country is in the ear). Producers using UHF technology could use USDA approved UHF 840 tags or the USDA approved UHF NUES tags when the State Animal Health Official authorizes this option. The recordkeeping requirements for tagging imported animals would remain the same as currently written in 9 CFR Part 86 for retagging and adding a second official tag. The working group recommends that APHIS prohibit the use of visual only 840 tags in imported animals.
  11. Considerations related to official identification of beef feeders to include beef cattle under 18 18 month of age after additional analysis.

“Moving forward, USDA wants to continue to build on the current momentum around animal disease traceability, and will begin implementing these ADT goals starting in fiscal year 2019.”

State Departments of Emergency Management prepare and respond to natural disasters by implementing the orchestrated emergency response plans, which state, federal and non-profit partners help develop over the years. These plans, that also include responses to the intentional or accidental introduction of highly pathogenic zoonotic or strictly animal diseases, are considered ever-green and updated based on emerging technology and review of tabletop exercises.

For those farmers, ranchers, veterinarians, zoos, aquaria, equine facilities, animal shelters, pet stores, biomedical research facilities and companion animal owners in need of assistance following Hurricane Florence and then Hurricane Michael in the South East, I hope the following resources can be of assistance.

South Carolina

On October 8, 2018, South Carolina State Veterinarian Boyd H. Parr, DVM implemented “temporary exceptions to the regulations governing the importation and exportation of animals coming into and leaving South Carolina as a result of Hurricane Michael.  All animals moving under these exceptions are expected to return to their state of origin no later than 10/31/18 unless this order is extended or revised.”  The exceptions, set forth at the Clemson Livestock Poultry Health website, permit interstate movement without a Coggins test result form or Certificate of Veterinary Inspection.

A comprehensive list of resources are available on Clemson’s Emergency Preparedness, Response and Recovery website, including, for example, links to (1) Hurricane Guidance for Livestock Owners; (2) Disaster Plan for Horses; (3) Emergency Equine Stable Sites; Flooding Hay Request Form; (4) Animal/Agriculture Emergency Support Function (ESF)-17 Ag Damage Assessment Information Form; and (5) Business Continuity for Agriculture/Secure Food Supply Plans.

In the face of Hurricane Florence, South Carolina previously suspended certain motor vehicle requirements, including, “such federal rules and regulations, in conjunction with S.C. Code Ann. §§ 56-5-4010 et seq., which establish size, weight, and load requirements for South Carolina highways, for, in relevant part, “Persons and vehicles transporting livestock, poultry, food for livestock and poultry, and crops ready to be harvested.”

Georgia

In Georgia, the Department of Agriculture has a Hurricane Response Center available on its website that also provides links to relevant information, including tips for those impacted by the storm.  Guidance is available related to livestock, pets, food, fuel, crops and other important information, such as:

0/12/2018 Commissioner Black Gets First Glimpse of Hurricane Michael’s Damage

10/12/2018 Disaster Assistance Discovery Tool

10/11/2018 Hurricane Michael Devastates Georgia’s Agricultural Industry

10/10/2018 Disaster Assistance Fact Sheet

10/10/2018 Press Release: Georgia Department of Agriculture Responds to Threat of Hurricane Michael

10/10/2018 Hurricane Michael: Animal Interstate Movement Requirements for Entry into Georgia from Florida are Temporarily Suspended UPDATED!

10/09/2018 Georgia National Fair Press Release: Fair Closed Wednesday October 10th, 2018

10/09/2018 Governor Nathan Deal declared a state of emergency for 92 counties in Georgia

Resources for Animal Food Producers in Flooded Areas of Gulf Coast

Like South Carolina, Georgia  and Florida temporarily suspended their interstate importation requirements for the transportation of animals.

Florida

Florida, with its long history of exemplary emergency preparedness and response, continues to implement those plans, including “[s]upporting pet-friendly shelters, agricultural producers, and local communities with various needs for supplies, transportation and staffing.”

North Carolina

The North Carolina Department of Agriculture & Consumer Services, N.C. State University Cooperative Extension and N.C. Cattlemen’s Association issued a warning on Sept. 22, 2018 to its constituents that “an individual was offering operational recovery assistance to producers with the claim that he had been authorized by the South Carolina state government. A background check on this individual proved this to be false.”

We are asking that if you are contacted by organizations or individuals that you do not know and you have a concern about their legitimacy, to please get the name of the individual/team, phone numbers, emails, license plate numbers, etc. and share that with your county Emergency Management Services.

USDA

A long-time partner with state departments of agriculture in emergency response, USDA provides resources and information on its website.  Its role  is “to provide food, emergency housing, community, as well as farmer and rancher assistance to individuals and small businesses affected by severe storms and flooding . . . [and] to work with states affected by severe storms and flooding regarding requests for various assistance, waivers and flexibilities in administering federal nutrition assistance programs.”  USDA also provides link to FEMA’s app for shelter and related information, as well as disaster assistance programs for farmers.

FDA

FDA, concerned about contamination of crops from floodwaters, provides relevant guidance on its website, “Crops Harvested from Flooded Fields Intended for Animal Food: Questions and Answers.”  In some cases, and with specific FDA approval, crops intended for human consumption can be used for animal feed.

The FDA will work with producers to consider requests to recondition an adulterated crop into animal food on a case-by-case basis. FDA’s compliance guide (CPG 675.200) provides a step-by-step process for reconditioning requests.

AVMA

The AVMA helps veterinarian impacted by disasters and provides emergency preparedness guidance on its website.

Hopefully, everyone impacted by these recent storms will find these and other resources helpful as they rebuild their properties, care for their animals, and recover.

Typically, animal diseases have a seasonal presence.  For example, avian influenza, like other influenza viruses prefer cold damp conditions.  On the other hand, viruses transmitted by mosquitoes (arboviruses), including Equine Encephalitis virus and West Nile virus , are diagnosed when the mosquito population has peaked, often in in mid-late summer and early fall.

In addition to the seasonal prevalence of arboviruses in the United States, USDA APHIS has been tracking and reporting on an outbreak of Virulent Newcastle Disease (vND) in California, first identified in May 18, 2018.

USDA has confirmed 156 cases of vND in California, 102 in San Bernardino County, 22 in Riverside County, 31 in Los Angeles County and 1 in Ventura County.

To date the virus has been confirmed predominately in backyard exhibition chickens.  Backyard mixed species birds, backyard hobby turkeys and one live bird market have also been infected.  Virus has not been identified in commercial flocks to date, and state and federal animal health officials are emphasizing the importance of implementing enhances biosecurity practices to prevent additional transmission to other premises.  The last confirmed case was reported on October 4, 2018.

Across the globe, African Swine Fever, a highly contagious hemorrhagic disease of wild and domestic suids, has been spreading in Asia and across Europe.

As reported by USDA, China first reported the outbreak on August 3, 2018, “on a domestic swine farm in Shenyang, Liaoning Province with an onset date of August 1.”  This disease, like other highly pathogenic diseases of livestock and poultry are reportable to the World Animal Health Organization (“OIE”).

In addition to China, since the beginning of 2018, ASF has been reported in the following countries: Hungary, Romania, Moldova, Poland, Czech Repulic, Belgium, Russia, Latvia, Poland, Ukraine and Chad, as reported by OIE.

USDA reported that it met with the swine industry on September 5, 2018 “to discuss protections USDA has in place to prevent the introduction of African Swine Fever (ASF) to the United States as well as activities to enhance those protections.”

USDA provided a summary of recommended enhancement activities-“USDA industry prevention points.

To prevent the introduction of this virus to the United States, USDA has: scheduled biweekly calls for updates and discussion; will review state authorized waste feeding of swine to determine whether inspection of licensed facilities should be enhanced; reviewed the importation of potentially infected meat, casing, and feed; asked Custom and Border Protection to “target its inspections of passengers and cargo coming from ASF positive regions.”

According to a report by Rabobank, African Swine Fever Shifts Global Protein Picture,

These disruptions could open export opportunities for U.S., Canadian and Brazilian pork producers, including initial panic buying. However, Rabobank explained, the potential spread of the disease throughout Asia and/or Europe also poses a great risk to North American and South American producers.