USDA Proposes Changes To Rules Regarding Livestock Marketing Facilities

by Shannon Allen

The United States Department of Agriculture’s (“USDA’s”) Animal and Plant Health Inspection Service (“APHIS”) issued proposed changes to regulations regarding facilities that receive livestock moved in interstate commerce.  This proposed rule includes several amendments to the conditions under which livestock may move to such facilities without official identification. The goal is to update rules specifically regulating livestock marketing facilities in order to further aid in ensuring animal disease traceability of livestock transported in interstate commerce to such facilities.

9 CFR subchapter B focuses on Cooperative State-Federal programs for the control or eradication of disease of livestock; subchapter C addresses interstate movement of livestock to prevent the dissemination of disease of livestock in the United States (“The Regulations”); and part 71 states that the APHIS can approve a livestock facility to accept livestock transported interstate and facility approval requires the execution of an agreement with APHIS.  The APHIS believes the agreement in § 71.20 is antiquated because it contains provisions that were necessary when diseases of livestock were more prevalent in the United States. Thus, APHIS proposes the following changes to the regulations, including, but not limited to the following (by topic):

Approved Livestock Marketing Facilities - Replacing all references to “livestock facilities” with “livestock marketing facilities.” The the term “livestock marketing facility” describes different facilities (e.g. stockyards, auction barns, buying stations, etc.).  “Livestock  marketing facility” helps differentiate such facilities from other locations (e.g. slaughtering facilities, quarantine lots, feed lots, dairies, farms, ranches, etc.).

Proposed Revisions to Part 71 - Requiring all livestock marketing facilities, regardless of whether they have sought APHIS approval to allow APHIS to conduct operations in such facilities in order to detect, control, and eradicate disease of livestock, and maintain a record of the receipt, distribution, and application of all official identification devices and USDA-approved backtags at the facility.  The proposal would also remove the requirement that an accredited veterinarian be physically present at all times on sale days because it causes logistical problems . . . at some facilities.

Proposed Revisions to Part 86 - Clarifying that the exemption “no more than one” applies only to cattle and bison, transported interstate from their farm of origin to an approved livestock marketing facility.  Also, clarifying that the exemption “directly to an approved livestock marketing facility” applies only to cattle and bison moved interstate from their farm of origin to an approved livestock marketing facility.  If cattle or bison commingle with animals from different premises, there will be a greater risk of disease introduction and spread of disease of livestock.

Application of USDA-Approved Backtags - Requesting public comment regarding specifying a location for backtags.

APHIS asserts this proposed rule will not cause any significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act. However, without current data required for a comprehensive analysis of the effects of this proposed rule on small entities, APHIS seeks comment on potential effects.  Specifically, APHIS seeks input on determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

Interested parties are invited to submit comments on or before March 3, 2015, by either of the following methods:

• Online: Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0018; OR 
• By Mail (Postal Mail/Commercial Delivery): Send your comment to Docket No. APHIS-2014-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

VA Seeks Comment on Proposal to Permit Service Animals on Agency Grounds

by Elisabeth Ulmer

The Department of Veterans Affairs (“VA”) seeks comment on a proposed rule regarding service animals on VA grounds.  At present, VA facility heads or designees have the discretion to approve or bar the presence of service animals on VA property.  In contrast, federal law, specifically the Americans with Disabilities Act (“ADA”), more broadly permits guide dogs and other service animals when they accompany individuals with disabilities on federal government property.

As the proposed rule mentions, “Though the ADA and the regulations implementing the ADA do not apply to agencies of the executive branch such as VA, VA is not prevented from adopting standards similar to those in the ADA when appropriate and applicable.”  The proposed rule would make VA regulations more consistent with the applicable federal law and would “establish nationally applicable criteria regarding the presence of service animals on VA property.”

The VA agrees with the Department of Justice (“DOJ”) in limiting the category of service animals to dogs that “are individually trained to do work and perform tasks for the benefit of an individual with a disability.”  Pursuant to the ADA, the DOJ has asserted that only these dogs “should be defined as a ‘service animal’ for consistent admittance to and presence in a variety of public settings.”  The VA excludes dogs in training to do service work from this category.  Furthermore, dogs without formal training that provide emotional support or companionship will not be permitted on VA property because “the mere presence of a dog that is not trained to perform work or tasks is not required by individuals in the context of public accommodations.”  However, service dogs “trained to mitigate the effects of mental health disabilities” will be permitted.  All of these restrictions regarding the classification of service animals “will provide greater predictability regarding the presence of animals on VA property and facilities, and will reduce risks to the health and safety of those on VA property.”

Although service animals will be allowed on VA property, the proposed rule asserts that they will not be permitted in certain areas and that these restrictions are consistent with both the ADA and VA limitations on the public.  The VA states that it would limit “the right of service animal access” in accordance with standards for patient care, patient safety, and infection control, “just as we restrict the right of members of the public.”  For instance, with respect to VA property under the control of the Veterans Health Administration, service animals will not be permitted in areas such as operating rooms and surgical suites, acute inpatient hospital settings, and food preparation areas.  With regard to VA property under the control of the National Cemetery Administration, service animals will not be allowed in open interment areas, construction sites, and grounds keeping and storage facilities.  Where the public may not go, service animals may not go.

The VA reserves the right to remove any service animal that, based on objective indications from an individualized assessment, “poses a risk to the health or safety of people or other service animals.”  In keeping with the ADA, if a service animal were not permitted on VA property, VA “would give the individual with a disability the opportunity to obtain services without having the service animal on VA property.”

Comments are due on January 20, 2015.  Interested parties are invited to submit comments by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov; 
• Mail or Hand Delivery: Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or
• Fax: (202) 273-9026.

All comments should indicate that they are submitted in response to “RIN 2900-AO39-Animals on VA Property.”

Profile on William Jay: Rising Star in Appellate Advocacy

William Jay, a partner at Goodwin Procter LLP, was recently a featured speaker in the Section’s Supreme Court Series Teleconference entitled Perez v. Mortgage Bankers Association: The Supreme Court Considers the Limits on Notice-and-Comment Rulemaking Requirements.   Notice and Comment had the opportunity to sit down with the Law360 2014 Rising Star and hear about his diverse career and advice for aspiring administrative lawyers.

Growing up on a horse and cattle farm, Jay did not always plan to pursue a legal career.  He became interested in the law while attending Harvard College, where he had the opportunity to intern for a local member of Congress and the Chief Counsel of the Senate Republican Policy Committee.  His experience working for the committee ultimately led him to apply to Harvard Law School. 

Jay began his legal career as a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit.  It was an invaluable experience in light of the variety of cases that clerks can work on, ranging from criminal matters to contract interpretation.  “I would recommend clerking to anyone who is interested in litigation because it gives you a perspective on how judges think and review legal issues,” he noted. Jay also had the opportunity to serve as a law clerk to Supreme Court Justice Antonin Scalia, an experience he described as unlike any other job a young lawyer can have.  Although the Justices do a lot of their own work, it was an amazing opportunity just to be a “fly on the wall,” and an experience that would greatly inform his appellate litigation practice.

After clerking for Justice Scalia, Jay returned to the law firm of Gibson Dunn & Crutcher LLP where he worked for a total of four years.  While at Gibson Dunn, he was a litigation associate with the firm’s Appellate and Constitutional Law practice group.  He also worked on administrative law matters, ranging from an APA challenge to a Transportation Department rulemaking to advising clients on compliance with campaign finance regulations.  The firm is known for its high profile appellate practice, but Jay was drawn to the opportunity to work with great people and mentors. 

Even though he was very happy at Gibson Dunn, Jay’s career took another interesting turn when the Office of the Solicitor General at the U.S. Department of Justice posted several vacancies in 2007.  The Solicitor General’s office represents federal agencies before the Supreme Court and also supervises the government’s appellate litigation and defense of federal statutes.  This was only the second time in the previous three years the office was hiring, so Jay felt he would regret not pursuing such a rare opportunity.  To his surprise he was hired to serve as an Assistant to the Solicitor General. In his nearly five years in the Solicitor General’s office, he argued 11 Supreme Court cases, wrote 20 Supreme Court merits briefs, worked on approximately 150 briefs in opposition to certiorari, argued cases in Courts of Appeals, and participated in other aspects of litigation. 

Jay’s variety of experience greatly informs his current role as Co-Chair of Goodwin Procter’s Appellate Litigation group.  He represents clients in Supreme Court cases like Perez v. Mortgage Bankers Association (in which he co-authored a brief for the National Mining Association); briefs and argues cases in appellate courts around the country;  and handles a number of trial court matters, including administrative law cases for both plaintiffs and defendant-intervenors.  Jay noted that he enjoys working on a mix of appellate and trial-court cases, and that it is important to understand how trial courts operate when handling appellate matters.  Gaining that understanding is difficult to do if you haven’t experienced motion practice. 

Jay recommended aspiring administrative lawyers consider diversifying their careers.  In the rulemaking context, he said, “whether you are writing rules for an agency or comments for a client, it’s important to fully understand the opposing side’s perspective.”  In order for an attorney to draft useful comments on an agency proposal, he stated, it helps to experience what it’s like for agency staff to read comments and write rules.  He also noted that it helps to know how businesses think if you are drafting regulations for an agency.  He offered a word of caution, however, noting that even recognized experts in a field cannot anticipate every possible scenario during a rulemaking, so even seemingly clear rules will end up needing interpretation as they are applied to unanticipated facts.  What clients need most in that situation is not just experts in the subject matter, but counsel with good judgment.