Fox Rothschild LLP

USDA published proposed Rule 85 FR 18471 on April 2, 2020 that would,

“amend the animal disease regulations to provide for a National List of Reportable Animal Diseases, along with reporting responsibilities for animal health professionals that encounter or suspect cases of communicable animal diseases and disease agents. These proposed changes are necessary to streamline State and Federal cooperative animal disease detection, response, and control efforts. This action would consolidate and enhance current disease reporting mechanisms, and would complement and supplement existing animal disease tracking and reporting at the State level.

USDA received 50 comments from individuals and the following organizations and agencies:

American Veterinary Medical Association*, The National Pork Producers Council, The American Association of Swine Veterinarians, The Swine Health Information Center, American Academy of Veterinary and Comparative Toxicology, American Association of Zoo Veterinarians*, American Board of Veterinary Toxicologists, Association of Fish & Wildlife Agencies, American Sheep Industry Association, California Department of Food & Agriculture, National Assembly of State Animal Health Officials*, National Association of State Departments of Agriculture, National Cattlemen’s Beef Association, Northeast Association of Fish & Wildlife Agencies, Inc., New Hampshire Department of Agriculture, Markets & Food, United States Fish and Wildlife Service, Wyoming Livestock Board, and North America Independent Reference Laboratories.

While these commenters all acknowledged the importance of accurate and “immediate” notification to effectuate adequate and timely response, but concerns about APHIS’ proposed rule include:

  1. Mandatory reporting requirements by individuals and entities that are not veterinarians, and therefore, according to some commenters not adequately trained to diagnose animal diseases. For example, the rule would require a laboratory to report a “confirmed case” based merely on a test result.  The North America Independent Reference Laboratories commented that veterinarian should be responsible for diagnosis/reporting under a veterinary client-patient relationship.  Specifically, this commenter noted that “an accurate diagnosis of disease cannot be made without a physical exam of the animal(s), evaluation of health/exposure history, vaccination status of the animal(s), non-infective environmental exposure vs. actual infection/disease, etc.”
  2. Providing a definition of “immediate reporting,” for example, as “within twelve (12) hours of a suspected FAD or knowledge of diagnostic testing results.”
  3. How would USDA protect the confidentiality of information reported?
  4. How the federal rule would impact existing state laws mandating reporting to the state?

The issues of greatest concern include the expansion of mandatory reporting requirements from accredited veterinarians, to the proposed list of animal health professionals with the training that would be required.  This expansion devalues the importance and role veterinarians play in protecting their patients, clients and the public from infectious diseases.

Also, because such reporting would likely result in false positive results, the consequences of such reporting would unnecessarily and negatively impact livestock producers and markets that would be prohibited from exporting animals and products from impacted states or the region or country as a whole.

Finally, even if the rule were to include confidentiality provisions, courts would ultimately determine whether the information can be protected when challenged by anyone making a request through the Freedom of Information Act.  USDA has had significant experience defending its actions in response to such legal challenges.

USDA has reopened the comment period, but it is now set to close August 21, 2020.

*I am either currently or was previously a member of these associations.

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